By Lawrence Muir
President of Broughton House
TikTok encourages the app’s short videos to be looped on repeat. While that may make the app more enjoyable for users, as well as more addictive, TikTok hits on repeat is a trend that Americans should want to break. Reversing this TikTok trend should start in the courtroom, where TikTok is undefeated against federal attempts to ban its use. Americans need Congress to produce one tight, constitutionally ironclad bill that will ban, not just TikTok, but other technologies that undermine American national security. Though clean, limited, and targeted legislation, Senator Hawley’s “No TikTok on United States Devices Act” and Senator Rubio’s ANTI-SOCIAL CCP Act have potential Constitutional defects that may be unable to survive legal challenges, including a violation of the Constitutional provision against bills of attainder. The generally preferable targeted legislation may, ironically, be the bills’ judicial undoing.
The Bill of Attainder Clause of Article I, Section 9, clause 3 of the United States Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.” As stated by the Second Circuit in Consolidated Edison v. Pataki, “A constitutionally proscribed bill of attainder is ‘a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.’” Further, “a statute can be a bill of attainder only if (1) it ‘determines guilt and inflicts punishment,’ (2) ‘upon an identifiable individual,’ and (3) ‘without provision of the protections of a judicial trial.’”
Senator Hawley’s bill does single out TikTok, even specifically naming TikTok in the title (line 4) and by exclusively naming ByteDance and TikTok in the bill. Senator Rubio’s bill also exclusively applies to ByteDance and TikTok. It’s inarguable that both bills single out ByteDance and TikTok. The question that remains is whether the company can be an “individual”. The Supreme Court of the United States has not been asked to decide whether corporations are “individuals” in bill of attainder jurisprudence but has applied the law to “private groups” and has stated in dicta it applies to “firms”. The Second Circuit extended these protections to corporations in the ConEd case and left only the two questions of whether the legislation determined guilt, and whether the legislation inflicted punishment. We turn to the element of guilt.
Bills of attainder possess a retrospective focus on guilt, meaning the conduct punished by the new legislation has already occurred. In TikTok’s case, that conduct has been sharing Americans’ data, communications, and more with the Chinese Communist Party. No additional facts need to be proven to find ByteDance & TikTok guilty of violating the legislation for the TikTok app has already undermined American national security. But this legitimate basis for banning TikTok looks different in bill of attainder analysis, because the pre-determination of guilt based on facts that came into evidence prior to the passage of the legislation support TikTok’s argument that the legislation is unconstitutional. In essence, the legislation is itself the trial, and the verdict has been rendered. And once found guilty, the only question is whether the legislation also includes punishment. If a court finds the legislation does punish TikTok, then the law will be deemed to be an unconstitutional bill of attainder.
Punishment, in the corporate setting, will take an economic or financial form compared to incarceration for individuals. The Supreme Court has addressed the question of punishment in bill of attainder analysis. The Supreme Court articulated three factors to guide a court’s determination of whether a statute directed at a named party is punitive: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a [legislative] intent to punish.’”
The legislation would effectively take TikTok’s property and business when it bans TikTok from American operations. The legitimate national security goals of the two bills could rebut TikTok’s argument that the bills are punitive in nature. TikTok has, however, gotten out ahead of this factor by putting forward Project Texas, an effort to address the national security concerns, and which TikTok argues is a less burdensome program that CFIUS could approve and negate the need to ban the app. Until CFIUS announces a decision on Project Texas, the presence of a potentially-less burdensome proposal in the hands of the federal government works against this legislation. Finally, the Court would hear evidence of the legislative intent to punish during the debate to pass the two bills. This editorial will not delve into the history of public comment regarding TikTok.
Senators Hawley and Rubio should consider two amendments to their bills that would remove the bill of attainder risk. First, the Senators should broaden the prohibited actors by creating more generalized concerns about hardware and software that share data with foreign governments, create risks of malware, and other identifiable risks to American national security. This broadening will thereby reduce the specificity of the bill and eliminate the challenge that the bill is aimed at a single, identifiable actor. Shifting the focus to the technology will make a more durable law. Further, in debate and in public commentary, begin highlighting the non-punitive functions of the legislation.
Senators Hawley and Rubio deserve credit for trying to advance narrowly-tailored legislation that improves American national security. But paradoxically both gentlemen would do better to broaden the scope of their respective bills to not focus exclusively on ByteDance & TikTok. America will not be safer if the legislation meant to protect against a foreign threat is struck down by the courts. If Americans want the loop of TikTok legal victories to finally stop playing, it would be wise to pass legislation that is not completely focused on TikTok, and that can survive to be used against the inevitable future threats that will emanate from technologies from China and other nations.