The Founders Would Have Been Worried About TikTok

Does Congress really have the power to force a sale of TikTok? Last week, the House of Representatives voted overwhelmingly in favor of a bill that would require TikTok’s parent company, the Beijing-based ByteDance, to sell the U.S. version of TikTok to an American buyer within six months or have the app blocked. The bill faces an uncertain future in the Senate, but its early momentum seems to have genuinely shocked and dismayed many people, who see it as a xenophobic provocation, a performative-messaging bill, or the first step in a dangerous unwinding of a global, free internet.

Underlying these somewhat confused critiques is a palpable sense of affront and bewilderment, a fierce instinct that something terribly wrong is afoot. In an era of globalization and free trade, the idea of the U.S. government blocking foreign ownership of a tech platform seems so extreme that there must be some darker explanation. But this intuition is mistaken. The idea that we must enact barriers to foreign-government surveillance and political interference is actually a very old one, embedded in both American history and the logic of democratic self-determination. Forbidding a hostile foreign power from controlling a major communication platform fits into a long and important tradition of American self-government.

Congress is worried about the Chinese government’s potential access to the personal data of TikTok’s 150 million U.S. users, and about its ability to influence American public opinion by shaping the content that those users see. ByteDance insists that it doesn’t share user data with, or otherwise do the bidding of, the Chinese Communist Party, but any Beijing-based company must ultimately answer to the Chinese government. The specific substance of these fears—data privacy, algorithmic manipulation—is distinctly modern. But the underlying concerns would have been familiar to American political leaders since the dawn of the republic.

During the Constitutional Convention in 1787, the Framers were quite worried that foreign powers would exploit America’s open form of government to serve their own interests. At the time, the United States was small and weak compared with the powerhouses of France and England, and the Framers feared that favors and financing could seduce officeholders. Alexander Hamilton cautioned that “foreign powers also will not be idle spectators. They will interpose, the confusion will increase, and a dissolution of the Union ensue.” The Constitution therefore forbids foreigners from running for Congress until they have been U.S. citizens for seven years, and famously prohibits anyone but a natural-born citizen from being president. Elbridge Gerry, the great champion of the Bill of Rights, argued at the Constitutional Convention that “foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services.”

[Tim Wu: Courts are choosing TikTok over children]

Even the treaty-ratification rule in the Constitution, which requires a two-thirds congressional vote, was included in order to reduce “the power of foreign nations to obstruct our retaliating measures on them by a corrupt influence,” as James Madison put it. And as we all learned during the Trump presidency, Article I of the U.S. Constitution forbids federal officials, without a special dispensation from Congress, from receiving gifts or emoluments from foreign governments. (I was a lawyer on the emoluments lawsuit against Trump, which had overcome preliminary legal challenges when he lost reelection.)

After the Constitution was ratified, Congress regularly used limits on foreign ownership and influence as a mechanism of preserving sovereignty, democracy, and national security. The limits are most pronounced in areas that affect politics, elections, and communications. Foreign nationals who are not green-card holders cannot contribute to political campaigns. Under the Foreign Agents Registration Act, lobbyists for foreign governments are far more strictly regulated than other lobbyists. The law, passed in the run-up to World War II, was strengthened after hearings in the 1960s revealed the degree to which foreign money was influencing domestic policy.

Other laws limit foreign control of different forms of infrastructure. The Defense Production Act authorizes the executive branch to block proposed or pending foreign corporate mergers that threaten national security. Vessels transporting cargo between two points in the United States must be U.S.-built and U.S.-owned. Certain defense contracts cannot be awarded to foreign-government-controlled companies unless specifically authorized by the secretary of defense. The Federal Energy Regulatory Commission can issue licenses for constructing dams or transmission lines only to U.S. entities, and geothermal lessees have foreign-ownership limits. As the Vanderbilt University law professor Ganesh Sitaraman has argued, the body of law limiting foreign ownership in various sectors can mostly be understood through the lens of platform regulation: They prevent foreign governments from taking over core elements of infrastructure.

This includes communications infrastructure. Limits on foreign ownership have been a part of federal communications policy for more than a century. The Radio Act of 1912 was the first federal limitation on ownership of communications infrastructure, forbidding foreign ownership of radio stations. It expanded and set a blueprint for later communications rules—Rupert Murdoch, for example, had to become an American citizen to avoid Federal Communications Commission rules banning foreign owners of American TV networks—which were based on the twin fears of espionage and propaganda. TikTok, of course, falls right at the intersection of those fears.

Any effort to restrict a communication platform inevitably invites concerns about the First Amendment, but constitutional claims on behalf of foreign governments are extremely weak. In 2011, for example, a federal court rejected a challenge to the federal laws prohibiting foreign nationals from making campaign contributions. Then-Judge Brett Kavanaugh wrote that the country has a compelling interest in limiting the participation of foreign citizens in such activities, “thereby preventing foreign influence over the U.S. political process.”

Some opponents of the TikTok bill argue instead that if the app is blocked in the U.S., that will restrict the free-speech rights of its users. The ACLU, for example, argues that a TikTok ban would be “a dangerous act of censorship on the free speech of so many Americans.” This is an argument that the ACLU and others might want to reconsider, because its boundless logic could swallow up any effort to regulate communication-based tech platforms. Suppose Congress passed a tough data-privacy law, for example, and Discord, unable to afford the cost of compliance, announced it would have to shut down U.S. operations. By the ACLU’s logic, the data-privacy law could be struck down as a violation of Discord users’ First Amendment rights. The free-speech argument against the TikTok bill is, in other words, a powerful and indiscriminate deregulatory weapon. (Although a federal court blocked Montana’s TikTok ban last fall, it did so largely on the grounds that a state, as opposed to Congress, lacked the power to legislate on the basis of national-security concerns.)

Critics of the TikTok bill also argue that it would do nothing to solve the fundamental problems posed by the biggest tech platforms. A U.S.-owned TikTok would not inherently be better for public dialogue, data privacy, or teen mental health than the current version. Even if China were cut off from direct control, it could still easily get data on Americans from commercial data brokers. Moreover, the bill would not touch the activities of Google and Meta, which have more users than TikTok and exert vastly more control over public discourse. “All of the social media platforms are information minefields, rife with deceptive content from state actors, corporations, paid influencers and others,” the tech journalist Julia Angwin wrote in a New York Times op-ed. “Their algorithms fuel our worst impulses by highlighting content that promotes anger and outrage. They strip mine our data to make money. Forcing TikTok to merge with another data-hungry social media platform won’t solve any of that.”

This is all true—it just isn’t a reason to oppose the current TikTok bill. I have long advocated for legislation to ban surveillance-based business models and hold platforms accountable for the content they promote, as well as for aggressive antitrust enforcement to break up the big homegrown tech monopolies. Forcing a TikTok divestiture would do none of those things. It would address one specific issue: control over a dominant communication platform by a hostile foreign superpower with a well-documented interest in influencing domestic politics in the U.S. and other countries. Yes, Congress should do so much more: pass comprehensive privacy reform, impose regulations on dominant tech platforms, and strengthen competition laws. But a law that solves only one problem is a lot better than nothing. And for those who think that restricting a Chinese app will create a new era in a deglobalized internet, China already blocks Instagram, Google, YouTube, WhatsApp, X (formerly Twitter), and Facebook, and a number of Asian countries have banned or limited TikTok within their borders on grounds similar to the proposed American legislation.

[Kate Lindsay: America will be fine without TikTok]

In fact, passing piecemeal legislation might be the first step toward Congress rebuilding the legislative muscle to pass those other more sweeping laws. Since the 1980s, American policy has largely treated nonmilitary interactions with foreign states as a subset of supply-side economics, with the goals of maximizing production and efficiency while tearing down barriers to trade. As both Democrats and Republicans lionized the free flow of capital as the most urgent priority, we focused less on traditional, unquantifiable concerns, such as democracy and sovereignty.

The basic premise of democratic self-government is the idea that people collectively make the rules of their community and collectively direct their laws. That promise may be more honored in the breach, but it remains the right aspiration for liberal democracy. Self-rule requires a closeness between the people who are governed and the institutions of power. Could American corporations or individuals wreak just as much havoc on public discourse as the Chinese government? Yes. But on some level, that is part of the democratic bargain. Members of this political community must have unique rights to shape the institutions that coerce and constrain their behavior—rights not afforded to people, corporations, or governments outside the community. The U.S. has a sorry history of meddling in other countries’ elections. It is not a history we should hold up proudly, or rely on to allow foreign meddling in our own elections. We should instead affirm the historic norm that countries have the right to protect their communications, politics, and private data from foreign governmental control.