Opinion

An opinion was released in case 24-1113, TikTok Inc. v. Merrick Garland

Court: Court of Appeals for the D.C. Circuit
Filed: Dec 6, 2024
Status: Published
Cited by: 0 cases
Authority: More cited than 33.2%

declining to second-guess the Executive’s judgment regarding a national security threat posed by the PRC

How later courts described this case

declining to second-guess the Executive’s judgment regarding a national security threat posed by the PRC
finding it “clear that the government may decide to designate an entity based on a broad range of evidence, including intelligence data and hearsay declarations” (quoting Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (2003
noting 7 that regulation of commercial speech has been subject to intermediate scrutiny even when content based
explaining that “an impermissible purpose or justification” may render a facially content-neutral restriction content based

Written by the judges who cited it.

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2024 Decided December 6, 2024

No. 24-1113

TIKTOK INC. AND BYTEDANCE LTD.,

PETITIONERS

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

RESPONDENT

Consolidated with 24-1130, 24-1183

On Petitions for Review of Constitutionality of the Protecting

Americans from Foreign Adversary Controlled Applications

Act

Andrew J. Pincus argued the cause for TikTok Petitioners.

With him on the briefs were Avi M. Kupfer, Alexander A.

Berengaut, David M. Zionts, Megan A. Crowley, and John E.

Hall.

Jeffrey L. Fisher argued the cause for Creator Petitioners.

With him on the briefs were Ambika Kumar, Tim Cunningham,

Xiang Li, Elizabeth A. McNamara, Chelsea T. Kelly, James R.

Sigel, Adam S. Sieff, and Joshua Revesz.

Jacob Huebert and Jeffrey M. Schwab were on the briefs

for petitioner BASED Politics, Inc.

David Greene was on the brief for amici curiae Electronic

Frontier Foundation, et al. in support of petitioners.

Jameel Jaffer and Eric Columbus were on the brief for

amici curiae the Knight First Amendment Institute at Columbia

University, et al. in support of petitioners.

Edward Andrew Paltzik and Serge Krimnus were on the

brief for amicus curiae HungryPanda US, Inc. in support of

petitioners.

Matt K. Nguyen, Travis LeBlanc, Robert H. Denniston,

Kathleen R. Hartnett, and Jamie D. Robertson were on the brief

for amici curiae Social and Racial Justice Community

Nonprofits in support of petitioners.

Nicholas Reddick and Meryl Conant Governski were on

the brief for amici curiae First Amendment Law Professors in

support of petitioners.

Thomas A. Berry was on the brief for amicus curiae the

Cato Institute in support of petitioners.

Mark Davies, Ethan L. Plail, and Edred Richardson were

on the brief for amici curiae Professors Mueller, Edgar,

Aaronson, and Klein in support of petitioners.

Aaron D. Van Oort was on the brief for amicus curiae

Professor Matthew Steilen in support of petitioners.

Daniel Tenny, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, Brian D. Netter, Deputy Assistant Attorney General,

Mark R. Freeman, Sharon Swingle, Casen B. Ross, Sean R.

Janda, and Brian J. Springer, Attorneys, Matthew G. Olsen,

Assistant Attorney General for National Security, Tyler J.

Wood, Deputy Chief, Foreign Investment Review Section, and

Tricia Wellman, Acting General Counsel, Office of the

Director of National Intelligence.

Thomas R. McCarthy was on the brief for amici curiae

Former National Security Officials in support of respondent.

Joel L. Thayer was on the brief for amici curiae Campaign

for Uyghurs, et al. in support of respondent.

Joel L. Thayer was on the brief for amici curiae Zephyr

Teachout, et al. in support of respondent.

Thomas M. Johnson, Jr., Jeremy J. Broggi, and Joel S.

Nolette were on the brief for amici curiae Chairman of the

Select Committee on the CCP John R. Moolenaar, et al. in

support of respondent.

David H. Thompson, Brian W. Barnes, and Megan M.

Wold were on the brief for amicus curiae Professor D. Adam

Candeub in support of respondent.

Thomas M. Johnson, Jr., Jeremy J. Broggi, and Michael J.

Showalter were on the brief for amici curiae Former Chairman

of the Federal Communications Commission Ajit V. Pai and

Former Assistant Secretary of the Treasury for Investment

Security Thomas P. Feddo in support of respondent.

Jonathan Berry, Michael Buschbacher, Jared M. Kelson,

James R. Conde, and William P. Barr were on the brief for

amicus curiae American Free Enterprise Chamber of

Commerce in support of respondent.

Austin Knudsen, Attorney General, Office of the Attorney

General for the State of Montana, Christian B. Corrigan,

Solicitor General, Peter M. Torstensen, Jr., Deputy Solicitor

General, Jason S. Miyares, Attorney General, Office of the

Attorney General for the Commonwealth of Virginia, Erika L.

Maley, Solicitor General, Kevin M. Gallagher, Principal

Deputy Solicitor General, Steve Marshall, Attorney General,

Office of the Attorney General for the State of Alabama, Treg

Taylor, Attorney General, Office of the Attorney General for

the State of Alaska, Tim Griffin, Attorney General, Office of

the Attorney General for the State of Arkansas, Ashley Moody,

Attorney General, Office of the Attorney General for the State

of Florida, Christopher M. Carr, Attorney General, Office of

the Attorney General for the State of Georgia, Raúl R.

Labrador, Attorney General, Office of the Attorney General

for the State of Idaho, Theodore E. Rokita, Attorney General,

Office of the Attorney General for the State of Indiana, Brenna

Bird, Attorney General, Office of the Attorney General for the

State of Iowa, Russell Coleman, Attorney General, Office of

the Attorney General for the Commonwealth of Kentucky, Liz

Murrill, Attorney General, Office of the Attorney General for

the State of Louisiana, Lynn Fitch, Attorney General, Office of

the Attorney General for the State of Mississippi, Andrew

Bailey, Attorney General, Office of the Attorney General for

the State of Missouri, Michael T. Hilgers, Attorney General,

Office of the Attorney General for the State of Nebraska, John

M. Formella, Attorney General, Office of the Attorney General

for the State of New Hampshire, Gentner F. Drummond,

Attorney General, Office of the Attorney General for the State

of Oklahoma, Alan Wilson, Attorney General, Office of the

Attorney General for the State of South Carolina, Marty J.

Jackley, Attorney General, Office of the Attorney General for

the State of South Dakota, Jonathan Skrmetti, Attorney

General, Office of the Attorney General for the State of

Tennessee, and Sean D. Reyes, Attorney General, Office of the

Attorney General for the State of Utah, were on the brief for

amici curiae State of Montana, Virginia, and 19 Other States

in support of respondent.

Peter C. Choharis and Arnon D. Siegel were on the brief

for amicus curiae the Foundation for Defense of Democracies

in support of respondent.

Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,

and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion concurring in part and concurring in the judgment

filed by Chief Judge SRINIVASAN.

I. Background 8

A. The TikTok Platform 8

B. The Petitioners 9

C. National Security Concerns 11

D. The Act 15

1. Foreign adversary controlled applications 16

2. Prohibitions 18

3. The divestiture exemption 19

E. Procedural History 20

II. Analysis 20

A. Standing and Ripeness 21

B. The First Amendment 24

1. Heightened scrutiny applies. 24

2. The Act satisfies strict scrutiny. 32

a. The Government’s justifications are

compelling. 33

(i) National security justifications 33

(ii) Data collection 38

(iii) Content manipulation 42

b. The Act is narrowly tailored. 48

(i) TikTok’s proposed NSA 49

(ii) Other options 53

(iii) Overinclusive / underinclusive 55

C. Equal Protection 57

D. The Bill of Attainder Clause 59

E. The Takings Clause 63

F. Alternative Relief 64

III. Conclusion 65

GINSBURG, Senior Circuit Judge: On April 24, 2024 the

President signed the Protecting Americans from Foreign

Adversary Controlled Applications Act into law. Pub. L. No.

118-50, div. H. The Act identifies the People’s Republic of

China (PRC) and three other countries as foreign adversaries

of the United States and prohibits the distribution or mainte-

nance of “foreign adversary controlled applications.”1 Its

prohibitions will take effect on January 19, 2025 with respect

to the TikTok platform.

Three petitions — filed by ByteDance Ltd. and TikTok,

Inc.; Based Politics, Inc.; and a group of individuals

(“Creators”) who use the TikTok platform — which we have

consolidated, all present constitutional challenges to the Act.

We conclude the portions of the Act the petitioners have stand-

ing to challenge, that is the provisions concerning TikTok and

its related entities, survive constitutional scrutiny. We therefore

deny the petitions.

A foreign adversary controlled application is defined in § 2(g)(3)

as “a website, desktop application, mobile application, or augmented

or immersive technology application that is operated, directly or indi-

rectly (including through a parent company, subsidiary, or affiliate),

by”:

(A) any of — (i) ByteDance, Ltd.; (ii) TikTok; (iii) a

subsidiary of or a successor to an entity identified in

clause (i) or (ii) that is controlled by a foreign adver-

sary; or (iv) an entity owned or controlled, directly or

indirectly, by an entity identified in clause (i), (ii), or

(iii); or

(B) a covered company that — (i) is controlled by a foreign

adversary; and (ii) that is determined by the President

to present a significant threat to the national security of

the United States following [certain procedures].

I. Background

This court has original and exclusive jurisdiction over this

case pursuant to Section 3 of the Act. The parties have submit-

ted several evidentiary appendices in support of their positions,

including sworn declarations from various experts. In review-

ing this material, we consider whether there is a genuine dis-

pute as to any material fact. Cf. Fed. R. Civ. P. 56(a), (c)(4).

Here, no dispute of “essential facts” stands in the way of our

deciding this case on the merits of the parties’ legal arguments.

See Cal. ex rel. State Lands Comm’n v. United States, 457 U.S.

273, 278 (1982); South Carolina v. Katzenbach, 383 U.S. 301,

307 (1966).

A. The TikTok Platform

TikTok is a social-media platform that lets users create,

upload, and watch short video clips overlaid with text, voice-

overs, and music. For each individual viewer, the platform

creates a continuous sequence of videos based upon that user’s

behavior and several other factors, with the aim of keeping that

user engaged. The TikTok platform has approximately 170

million monthly users in the United States and more than one

billion users worldwide.

What a TikTok user sees on the platform is determined by

a recommendation engine, company content moderation deci-

sions, and video promotion and filtering decisions. The

recommendation engine is an algorithm that displays videos

based upon content metadata and user behavior. It identifies a

pool of candidate videos for a user, then scores and ranks those

videos using machine-learning models designed to determine

which video(s) would be most appealing to the user. The source

code for the engine was originally developed by ByteDance, a

company based in China that is the ultimate parent of TikTok.

According to TikTok, the global TikTok team, which includes

Chinese engineers, “continually develop[s]” the recommenda-

tion engine and platform source code. As we explain in more

detail below, the recommendation engine for the version of the

platform that operates in the United States is deployed to a

cloud environment run by Oracle Corporation.

Content moderation decisions involve a combination of

machine and human actions. According to TikTok every video

on the TikTok platform goes through “automated moderation”

and if deemed potentially problematic is sent to a human

moderator for review. TikTok’s Head of Operations and Trust

& Safety approves the “community guidelines” that drive

content moderation on the platform.

Video promotion (also called “heating”) and demotion

(also called “filtering”) decisions are used to advance TikTok’s

commercial or other goals. These decisions involve promoting

or limiting specific videos on the platform. According to

TikTok, each video that is promoted is first reviewed by a

human. Review teams are regionalized so that videos promoted

in the United States are reviewed by U.S.-based reviewers.

With respect to filtering, the platform follows “a set of rules to

filter out and disperse certain content.”

B. The Petitioners

Three groups of petitioners challenge the Act on constitu-

tional grounds: ByteDance Ltd. and TikTok, Inc.; Based

Politics, Inc.; and the self-styled Creators, eight individuals

who use the TikTok platform. We refer to the latter two groups

collectively as the User Petitioners. Where the corporate struc-

ture of ByteDance affects our analysis, we identify the relevant

corporate entity by name. Otherwise, we refer generally to the

constellation of ByteDance entities as TikTok. Because PRC

control of the TikTok platform is central to this case, we

provide the following overview of the relevant corporate

relationships.

ByteDance Ltd., the ultimate parent company of TikTok,

is incorporated in the Cayman Islands. The Government

characterizes ByteDance as headquartered in China and

ByteDance acknowledges that it has significant operations

there.2 ByteDance provides more than a dozen products

through various operating subsidiaries, including Douyin,

which is the counterpart to TikTok in China. The company was

founded by Yiming Zhang, a Chinese national. Zhang retains

21 percent ownership of the company.

TikTok Ltd. is a wholly owned subsidiary of ByteDance

and is also incorporated abroad. TikTok Ltd. operates the

TikTok platform globally, except in China. The Government

refers to TikTok entities that operate the platform outside the

United States as “TikTok Global” and its U.S. operations as

“TikTok US.”

TikTok Ltd. wholly owns TikTok LLC, which in turn

wholly owns TikTok, Inc., a California corporation that pro-

vides the TikTok platform to users in the United States.

According to a TikTok declarant, TikTok’s “U.S. application

and global application are highly integrated,” and the “global

TikTok application itself is highly integrated with ByteDance.”

Because the TikTok “platform and the content [are] global, the

teams working on the platform, and the tools they use, neces-

sarily must be, as well.” According to TikTok, one of

ByteDance’s roles is “development of portions of the computer

code that runs the TikTok platform.” In the Government’s

view, TikTok “would try to comply if the PRC asked for

specific actions to be taken to manipulate content for

We use “China” when referring to the country and PRC when

referencing its government.

censorship, propaganda, or other malign purposes on TikTok

US.”

TikTok U.S. Data Security Inc. (TTUSDS) is a wholly

owned subsidiary of TikTok, Inc., incorporated in Delaware.

TikTok created TTUSDS to limit ByteDance’s access to the

data of TikTok’s users in the United States and to monitor the

security of the platform. TikTok represents that TTUSDS

employees are separated from other TikTok employees, and

that it partnered with Oracle to migrate the U.S. version of the

TikTok platform into a cloud environment run by Oracle.

TikTok also represents that TTUSDS and Oracle review

updates to the platform made by ByteDance’s non-TTUSDS

employees, and that Oracle has full access to TikTok’s source

code. According to TikTok, TTUSDS is also responsible for

deploying the recommendation engine in the United States, and

TTUSDS signs off on any decision to promote or demote

content in the United States.

C. National Security Concerns

As relevant here, the Executive3 first became concerned

about the PRC’s influence over TikTok in 2018 when

ByteDance relaunched the platform in the United States

following its acquisition of Musical.ly. In 2019, upon finding

that “foreign adversaries” were “exploiting vulnerabilities in

information and communications technology and services,”

President Trump declared a national emergency. Securing the

Information and Communications Technology and Services

Supply Chain, Exec. Order No. 13873, 84 Fed. Reg. 22689,

22689 (May 15, 2019). Later that year, the Committee on

Foreign Investment in the United States (CFIUS), which

comprises the heads of several Executive Branch agencies, sent

The Executive refers variously to the President, Executive Branch

agencies, including the intelligence agencies, and officials thereof.

a questionnaire to ByteDance about national security concerns

related to ByteDance’s acquisition of Musical.ly. Thus began a

lengthy investigatory process that culminated on August 1,

2020 with CFIUS concluding that TikTok could not suffi-

ciently mitigate its national security concerns and referring the

transaction to the President. The President, acting on that

referral, ordered ByteDance to divest any “assets or property”

that “enable or support ByteDance’s operation of the TikTok

application in the United States.” Regarding the Acquisition of

Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297

(Aug. 14, 2020).

President Trump separately invoked his powers under the

International Emergency Economic Powers Act (IEEPA) and

the National Emergencies Act to address “the threat posed by

one mobile application in particular, TikTok.” Addressing the

Threat Posed by TikTok, Exec. Order No. 13942, 85 Fed. Reg.

48637, 48637 (Aug. 6, 2020). President Trump prohibited

certain “transactions” with ByteDance or its subsidiaries, id. at

48638, and the Secretary of Commerce later published a list of

prohibited transactions, 85 Fed. Reg. 60061 (Sept. 24, 2020).

Litigation ensued, and two courts enjoined the President’s

prohibitions under the IEEPA as exceeding his authority under

that law. TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 102

(D.D.C. 2020); Maryland v. Trump, 498 F. Supp. 3d 624, 638,

641–45 (E.D. Pa. 2020).

In 2021, President Biden withdrew President Trump’s

IEEPA executive order and issued a new one. In the new order,

the President identified the PRC as “a foreign adversary” that

“continues to threaten the national security, foreign policy, and

economy of the United States” through its control of “software

applications” used in the United States. Protecting Americans’

Sensitive Data From Foreign Adversaries, Exec. Order No.

14034, 86 Fed. Reg. 31423, 31423 (June 9, 2021). President

Biden elaborated that “software applications” can provide

foreign adversaries with “vast swaths of information from

users,” and that the PRC’s “access to large repositories” of such

data “presents a significant risk.” Id. President Biden directed

several executive agencies to provide risk mitigation options,

and he asked for recommended “executive and legislative

actions” to counter risks “associated with connected software

applications that are designed, developed, manufactured, or

supplied by persons owned or controlled by, or subject to the

jurisdiction or direction of, a foreign adversary.” Id. The

following year, President Biden signed into law a bill prohibit-

ing the use of TikTok on government devices. See generally

Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022).

Litigation regarding President Trump’s divestiture order

pursuant to CFIUS’s referral began when TikTok filed suit in

this court challenging the constitutionality of the order. See Pet.

for Review, TikTok Inc. v. CFIUS, No. 20-1444 (2020). At the

request of the parties, in February 2021 this court placed that

case in abeyance while the new administration considered the

matter and the parties negotiated over an alternative remedy

that would sufficiently address the Executive’s national secu-

rity concerns.

During 2021 and 2022, TikTok submitted multiple drafts

of its proposed National Security Agreement (NSA) and

Executive Branch officials held numerous meetings to consider

TikTok’s submissions. According to TikTok, there were “at

least” 14 meetings or calls, nine written presentations by

TikTok, and 15 email exchanges in which “CFIUS posed ques-

tions related to [TikTok’s] operations and the NSA terms.” A

TikTok declarant describes the negotiations as “protracted,

detailed, and productive,” and the Government similarly

characterizes them as “significant” and “intensive.” Also as

part of the process, “Executive Branch negotiators engaged in

extensive, in-depth discussions with Oracle, the proposed

Trusted Technology Provider, whose responsibility under the

proposed mitigation structure included storing data in the

United States, performing source code review, and ensuring

safety of the operation of the TikTok platform in the United

States.”

In August 2022, TikTok submitted its last proposal.

Although the parties dispute certain details about how to inter-

pret specific provisions, the broad contours of TikTok’s pro-

posed NSA are undisputed. Three aspects of the proposal bear

emphasis.

First, the proposal purported to give TikTok operational

independence from ByteDance by creating a new entity insu-

lated from the influence of ByteDance, namely TTUSDS. The

key management personnel of TTUSDS were to be subject to

approval by the Government.

Second, the proposed NSA would create three tiers of data

to limit the ability of ByteDance to access the data of TikTok’s

users in the United States. Protected Data generally would

encompass personal information about TikTok’s U.S. users —

such as their usernames, passwords, user-created content, and

any other personally identifiable information — unless such

data were classified as Excepted Data or Public Data. Sharing

of Protected Data with ByteDance would be prohibited except

pursuant to limited-access protocols. Excepted Data would

include data that platform users authorized to be shared with

TikTok or its affiliates; certain defined data fields; and

encrypted usernames, phone numbers, email addresses, etc., for

routing to the United States. Public Data would include data

generally accessible to platform users, as well as any content a

user decides to make public. Under the proposed NSA, TikTok

could send Excepted Data and Public Data to ByteDance.

Third, the proposal provided for a “trusted third party,”

Oracle, to inspect the source code, including TikTok’s

recommendation engine. It also gave the Government author-

ity, under certain circumstances, to instruct TikTok to shut

down the platform in the United States, which TikTok calls a

“kill switch.”

The Executive determined the proposed NSA was insuffi-

cient for several reasons. Most fundamentally, certain data of

U.S. users would still flow to China and ByteDance would still

be able to exert control over TikTok’s operations in the United

States. The Executive also did not trust that ByteDance and

TTUSDS would comply in good faith with the NSA. Nor did

the Executive have “sufficient visibility [into] and resources to

monitor” compliance. In the Executive’s view, divestment was

the only solution that would adequately address its national

security concerns. TikTok nevertheless voluntarily imple-

mented some of its proposed mitigation measures.

D. The Act

In the months leading to passage of the Act, the Congress

conducted a series of classified briefings and hearings regard-

ing the Government’s national security concerns. The Congress

then debated and passed the Act as one part of a broader

appropriations bill, which also included the Protecting

Americans’ Data from Foreign Adversaries Act of 2024, Pub.

L. No. 118-50, div. I (2024), hereinafter the Data Broker Law.

The Act and the Data Broker Law include nearly identical

definitions of “foreign adversary country” and “controlled by a

foreign adversary.” Their aims also overlap. Section 2(a) of the

Data Broker Law prohibits third party data brokers from

transferring “personally identifiable sensitive data of a United

States individual” to a foreign adversary country or an entity

“controlled by a foreign adversary.” The Act complements that

provision by limiting the ability of foreign adversaries to

collect data directly through adversary controlled applications.

The Act itself is narrowly constructed to counter foreign

adversary control through divestiture. Three aspects of the Act

are particularly relevant to this case: (1) the definition of for-

eign adversary controlled applications, (2) prohibitions in the

Act, and (3) the divestiture option.

1. Foreign adversary controlled applications

The Act defines a Foreign Adversary Controlled

Application as “a website, desktop application, mobile applica-

tion, or augmented or immersive technology application that is

operated, directly or indirectly” by either of two distinct

groups. § 2(g)(3). The first group consists of the ByteDance

constellation of entities, including TikTok, which is identified

by name. § 2(g)(3)(A). The second group consists of every cov-

ered company4 that is determined by the President to present a

The term “covered company” is defined as “an entity that operates

. . . a website, desktop application, mobile application, or augmented

or immersive technology application that”:

(i) permits a user to create an account or profile to gener-

ate, share, and view text, images, videos, real-time

communications, or similar content;

(ii) has more than 1,000,000 monthly active users with

respect to at least 2 of the 3 months preceding the date

on which a relevant determination of the President is

made pursuant to paragraph (3)(B);

(iii) enables 1 or more users to generate or distribute content

that can be viewed by other users of the website, desk-

top application, mobile application, or augmented or

immersive technology application; and

(iv) enables 1 or more users to view content generated by

other users of the website, desktop application, mobile

significant threat to national security. Specifically, it includes

any “covered company” that:

(i) is controlled by a foreign adversary;5 and

(ii) that is determined by the President to present a

significant threat to the national security of the

United States following the issuance of — (I) a

public notice proposing such determination; and

(II) a public report to Congress, submitted not less

than 30 days before such determination, describing

the specific national security concern involved and

containing a classified annex and a description of

application, or augmented or immersive technology

application.

§ 2(g)(2)(A). The term excludes, however, entities that operate an

“application whose primary purpose is to allow users to post product

reviews, business reviews, or travel information and reviews.”

§ 2(g)(2)(B).

The term “controlled by a foreign adversary” means a “covered

company or other entity” that is:

(A) a foreign person that is domiciled in, is headquartered

in, has its principal place of business in, or is organized

under the laws of a foreign adversary country;

(B) an entity with respect to which a foreign person or

combination of foreign persons described in subpara-

graph (A) directly or indirectly own at least a 20 percent

stake; or

person or entity described in subparagraph (A) or (B).

§ 2(g)(1). The definition of “foreign adversary country” encom-

passes China, Russia, Iran, and North Korea. § 2(g)(2) (defining the

term by reference to 10 U.S.C. § 4872(d)(2)).

what assets would need to be divested to execute a

qualified divestiture.

§ 2(g)(3)(B).

2. Prohibitions

The Act contains prohibitions, § 2(a), and a “data and

information portability” requirement, § 2(b). The prohibitions

do not directly proscribe conduct by an entity that owns a for-

eign adversary controlled application. Instead, they bar others

from providing critical support in the United States for such an

application. Specifically, the Act makes it “unlawful for an

entity to distribute, maintain, or update” a foreign adversary

controlled application in any of two ways:

(A) Providing services to distribute, maintain, or

update such foreign adversary controlled applica-

tion (including any source code of such applica-

tion) by means of a marketplace (including an

online mobile application store) through which

users within the land or maritime borders of the

United States may access, maintain, or update such

application.

(B) Providing internet hosting services to enable the

distribution, maintenance, or updating of such for-

eign adversary controlled application for users

within the land or maritime borders of the United

States.

§ 2(a)(1).

With respect to TikTok, the prohibitions take effect 270

days after the Act was passed into law, that is, on January 19,

2025. § 2(a)(2)(A). With respect to applications subject to the

generally applicable provisions, the prohibitions take effect

270 days after “the relevant determination of the President.”

§ 2(a)(2)(B). In both situations, the President can grant a one-

time, 90-day extension under specific circumstances not rele-

vant here. § 2(a)(3).

Failure to comply with the Act can result in substantial

monetary penalties. § 2(d)(1). To enforce the Act the Attorney

General, following an investigation, can file suit in an appropri-

ate district court. § 2(d)(2).

3. The divestiture exemption

Section 2(c) of the Act provides an exemption “for quali-

fied divestitures.” That is, the prohibitions do not apply if “a

qualified divestiture is executed before the date on which a

prohibition under subsection (a) would begin to apply.”

§ 2(c)(1)(A). If a qualified divestiture is executed after that

date, then the prohibitions “shall cease to apply.” § 2(c)(1)(B).

A “qualified divestiture” is defined as a transaction that:

(A) the President determines, through an interagency

process, would result in the relevant foreign

adversary controlled application no longer being

controlled by a foreign adversary; and

(B) the President determines, through an interagency

process, precludes the establishment or mainte-

nance of any operational relationship between the

United States operations of the relevant foreign

adversary controlled application and any formerly

affiliated entities that are controlled by a foreign

adversary, including any cooperation with respect

to the operation of a content recommendation algo-

rithm or an agreement with respect to data sharing.

§ 2(g)(6).

E. Procedural History

This case concerns three petitions challenging the Act that

this court consolidated for review. On May 17, 2024 the parties

jointly asked this Court to expedite the case. The parties

advised that they intended to append evidentiary materials to

their briefs. The Government noted that it was evaluating the

need to file an ex parte evidentiary submission given the

classified material implicated by the case. The petitioners

reserved the right to object to any such submission.

The parties ultimately submitted evidence with their

briefs. TikTok’s submission included several expert declara-

tions as well as a declaration from its Head of Operations and

Trust & Safety. The User Petitioners filed declarations

underscoring the diverse ways in which they use the TikTok

platform. The Government filed declarations explaining its

national security concerns and why it found TikTok’s proposed

NSA insufficient to meet those concerns. TikTok filed rebuttal

declarations with its reply brief.

Portions of the Government’s brief and evidentiary

submission were redacted because they contain classified

information. The Government filed a motion requesting leave

to file unredacted versions of its brief and supporting evidence

under seal and ex parte, which documents the Government later

lodged with this court. The petitioners opposed the

Government’s motion and alternatively moved this court to

appoint a special master and issue a temporary injunction in

order to mitigate prejudice arising from the Government’s

classified filings.

II. Analysis

The petitioners seek a declaratory judgment that the Act

violates the Constitution and an order enjoining the Attorney

General from enforcing it. Because the petitioners are bringing

a pre-enforcement challenge to the Act, we must determine the

extent to which this court can consider their claims consistent

with the standing aspect of the “case or controversy” require-

ment of Article III of the Constitution. We conclude that

TikTok has standing to challenge those portions of the Act that

directly affect the activities of ByteDance and its affiliates. We

further conclude that TikTok’s challenge to those portions of

the Act is ripe.

On the merits, we reject each of the petitioners’ constitu-

tional claims. As we shall explain, the parts of the Act that are

properly before this court do not contravene the First

Amendment to the Constitution of the United States, nor do

they violate the Fifth Amendment guarantee of equal protection

of the laws; constitute an unlawful bill of attainder, in violation

of Article I, § 9, clause 3; or work an uncompensated taking of

private property in violation of the Fifth Amendment.

A. Standing and Ripeness

We have an independent duty to assure ourselves that the

petitioners and their claims satisfy the requirements of Article

III. Exelon Corp. v. FERC, 911 F.3d 1236, 1240 (D.C. Cir.

2018). TikTok’s claims all relate to how the Act applies to the

TikTok platform; it has not, for example, meaningfully devel-

oped claims regarding other services provided by other

ByteDance subsidiaries. Nor does it claim the generally

applicable portions of the Act are unconstitutional as applied to

other companies. TikTok instead seeks to enjoin the enforce-

ment of the prohibitions on hosting the TikTok platform, which

TikTok contends are unconstitutional irrespective of whether

they are imposed based upon the generally applicable frame-

work or upon the TikTok-specific provisions of the Act. At the

same time, the User Petitioners claim the Act in its entirety is

“facially invalid under the First Amendment,” which need not

detain us.6 Creator Reply Br. 30–31.

“To establish standing for a pre-enforcement challenge, a

plaintiff must demonstrate first an intention to engage in a

course of conduct arguably affected with a constitutional inter-

est, but proscribed by a statute and, second, that there exists a

credible threat of prosecution thereunder.” Muthana v.

Pompeo, 985 F.3d 893, 911 (D.C. Cir. 2021) (cleaned up). This

inquiry is slightly more refined in cases that involve the poten-

tial future regulation of third parties. To establish standing in

such circumstances, a plaintiff must demonstrate it is “likely

that the government’s regulation . . . of someone else will cause

a concrete and particularized injury in fact to the unregulated

plaintiff.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 385

n.2 (2024).

Ripeness is “related” but focuses “on the timing of the

action rather than on the parties seeking to bring it.” Navegar,

Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997).

Courts consider (1) hardship to the parties and (2) fitness for

judicial resolution when assessing ripeness. Id. The purposes

of the ripeness doctrine are to avoid abstract argument, promote

judicial economy, and ensure an adequate record. Id.

TikTok and its claims challenging enforcement of the

prohibitions of the Act based upon the TikTok-specific provi-

sions clearly satisfy the requirements respectively for standing

and ripeness. The prohibitions based upon those provisions

The User Petitioners have not demonstrated that “a substantial

number of” the Act’s “applications are unconstitutional, judged in

relation to the statute’s plainly legitimate sweep.” Moody v.

NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024) (cleaned up). Indeed,

the core of the Act — its application as to TikTok — is valid for the

reasons we explain in this opinion.

take effect by operation of law on January 19, 2025. After that

date, third parties that make the TikTok platform available in

the United States would run a significant risk of incurring

monetary penalties under § 2(d)(1). Even if the Act went unen-

forced, the risk of penalties alone could cause third parties to

suspend support for the TikTok platform, such as by removing

it from online marketplaces, and an injunction would prevent

that harm. TikTok therefore has Article III standing to pursue

its claims.

The ripeness inquiry is likewise straightforward. TikTok

risks severe hardship from delayed review, and we have an ade-

quate record on which to resolve the company’s challenges to

the constitutionality of the TikTok-specific provisions of the

Act.

To the extent TikTok seeks to enjoin future enforcement

of the prohibitions under the generally applicable track, TikTok

does not have standing. Nor if it did would such a request be

ripe for judicial review. Recall that applying the prohibitions

under the generally applicable framework requires certain

procedural steps and a presidential determination pursuant to

§ 2(g)(3)(B). Those steps include public notice, a description

of the national security concern, a classified annex, and a

description of assets to be divested. § 2(g)(3)(B)(ii). The

President has not invoked those procedures with respect to

TikTok (or any other company), and it would be self-evidently

premature for the court even to consider a request for an injunc-

tion against the President ever doing so. We consequently limit

our analysis to the constitutionality of the Act as applied to the

TikTok-specific provisions that will go into effect next month.7

Having concluded that TikTok has standing, we need not separately

analyze whether the User Petitioners have standing to raise the same

claims. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C.

Cir. 2017) (explaining that “if constitutional standing can be shown

B. The First Amendment

This case requires that we apply longstanding First

Amendment principles to somewhat novel facts: A popular

social-media platform, subject to the control of a foreign adver-

sary nation, that a statute requires be divested because of

national security risks. The issue is made more complex by the

web of subsidiaries wholly owned by ByteDance that lie

behind the TikTok platform. See Moody v. NetChoice, LLC,

144 S. Ct. 2383, 2410 (2024) (Barrett, J., concurring)

(explaining how foreign ownership and corporate structure can

complicate the First Amendment analysis).

We conclude the Act implicates the First Amendment and

is subject to heightened scrutiny. Whether strict or intermediate

scrutiny applies is a closer question. The relevant portions of

the Act are facially content neutral, but the Government argua-

bly based its content-manipulation justification for the Act

upon the content on the platform. We think it only prudent,

therefore, to assume without deciding that the higher standard

applies.

1. Heightened scrutiny applies.

As in most First Amendment cases, the parties spend much

of their time debating the appropriate standard of review. The

petitioners urge the court to apply strict scrutiny but contend

the Act fails intermediate scrutiny as well. The Government

suggests we apply only rational basis review, alternatively

advocates intermediate scrutiny, but maintains the Act satisfies

even strict scrutiny.

for at least one plaintiff, we need not consider the standing of the

other plaintiffs to raise that claim” (cleaned up)).

Under intermediate scrutiny, the Act complies with the

First Amendment “if it advances important governmental inter-

ests unrelated to the suppression of free speech and does not

burden substantially more speech than necessary to further

those interests.” Turner Broad. Sys., Inc. v. FCC (Turner II),

520 U.S. 180, 189 (1997) (citing United States v. O’Brien, 391

U.S. 367, 377 (1968)). Under strict scrutiny, the Act violates

the First Amendment unless the Government can “prove that

the restriction furthers a compelling interest and is narrowly

tailored to achieve that interest.” Reed v. Town of Gilbert,

576 U.S. 155, 171 (2015) (cleaned up).

We think it clear that some level of heightened scrutiny is

required. The question whether intermediate or strict scrutiny

applies is difficult because the TikTok-specific provisions are

facially content neutral, yet the Government justifies the Act in

substantial part by reference to a foreign adversary’s ability to

manipulate content seen by Americans. No Supreme Court

case directly addresses whether such a justification renders a

law content based, thereby triggering strict scrutiny. There are

reasonable bases to conclude that intermediate scrutiny is

appropriate even under these circumstances. We need not,

however, definitively decide that question because we con-

clude the Act “passes muster even under the more demanding

standard.” FEC v. Int’l Funding Inst., 969 F.2d 1110, 1116

(D.C. Cir. 1992); see also In re Sealed Case, 77 F.4th 815,

829–30 (D.C. Cir. 2023) (assuming without deciding that strict

scrutiny applied).

At the outset, we reject the Government’s ambitious argu-

ment that this case is akin to Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986), and does not implicate the First

Amendment at all. That case concerned enforcement of “a

public health regulation of general application against” an adult

bookstore being “used for prostitution.” Id. at 707.

Enforcement of a generally applicable law unrelated to

expressive activity does not call for any First Amendment

scrutiny. Id. By contrast, the First Amendment is implicated in

“cases involving governmental regulation of conduct that has

an expressive element,” or when a statute is directed at an

activity without an expressive component but imposes “a

disproportionate burden upon those engaged in protected First

Amendment activities.” Id. at 703–04; see also Alexander v.

United States, 509 U.S. 544, 557 (1993).

Here the Act imposes a disproportionate burden on

TikTok, an entity engaged in expressive activity. The

Government concedes, as it must after NetChoice, that the

curation of content on TikTok is a form of speech. 144 S. Ct. at

2401. Like the social media companies in that case, TikTok

delivers a “personalized collection” of content to users and

moderates this content pursuant to its community guidelines.

Id. at 2403–04. The Act plainly “single[s] out” that expressive

activity by indirectly subjecting TikTok — and so far, only

TikTok — to the divestiture requirement. Arcara, 478 U.S. at

707; cf. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 190

(2024) (explaining that “the First Amendment prohibits

government officials from wielding their power selectively to

punish or suppress speech, directly or (as alleged here) through

private intermediaries”). The prohibitions will make it unlaw-

ful for any entity to distribute, maintain, or update the TikTok

platform in the United States. § 2(a)(1). TikTok can avoid the

prohibitions by making a qualified divestiture, § 2(c), but to

qualify such divestiture must preclude “any cooperation with

respect to the operation of a content recommendation algorithm

or an agreement with respect to data sharing,” § 2(g)(6)(B). By

prohibiting third parties from hosting TikTok until the platform

executes this divestiture, the Act singles out TikTok, which

engages in expressive activity, for disfavored treatment.

The Government suggests that because TikTok is wholly

owned by ByteDance, a foreign company, it has no First

Amendment rights. Cf. Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 591 U.S. 430, 436 (2020) (explaining that

“foreign organizations operating abroad have no First

Amendment rights”). TikTok, Inc., however, is a domestic

entity operating domestically. See NetChoice, 144 S. Ct. at

2410 (Barrett, J., concurring) (identifying potential “complexi-

ties” for First Amendment analysis posed by the “corporate

structure and ownership of some platforms”). The Government

does not dispute facts suggesting at least some of the regulated

speech involves TikTok’s U.S. entities. See TikTok App. 811–

12, 817–18 (explaining that promoted videos are “reviewed by

a U.S.-based reviewer,” that an executive employed by a U.S.

entity approves the guidelines for content moderation, and that

the recommendation engine “is customized for TikTok’s vari-

ous global markets” and “subject to special vetting in the

United States”).

Nor does the Government argue we should “pierce the

corporate veil” or “invoke any other relevant exception” to the

fundamental principle of corporate separateness. Agency for

Int’l Dev., 591 U.S. at 435–36. We are sensitive to the risk of a

foreign adversary exploiting corporate form to take advantage

of legal protections in the United States. Indeed, the

Government presented evidence to suggest the PRC intention-

ally attempts to do just that. See, e.g., Gov’t App. 33–35

(describing the PRC’s hybrid commercial threat and its

exploitation of U.S. legal protections for hacking operations).

Under these circumstances, however, we conclude that the

TikTok-specific provisions of the Act trigger First Amendment

scrutiny.

The next question is whether intermediate or strict scrutiny

is appropriate, which turns on whether the Act is content

neutral or content based. See Turner Broad. Sys., Inc. v. FCC

(Turner I), 512 U.S. 622, 642 (1994) (explaining that “regula-

tions that are unrelated to the content of speech are subject to

an intermediate level of scrutiny, because in most cases they

pose a less substantial risk of excising certain ideas or view-

points from the public dialogue” (citation omitted)). A law is

content based if it “applies to particular speech because of the

topic discussed or the idea or message expressed.” Reed, 576

U.S. at 163. It is facially content based “if it targets speech

based on its communicative content.” City of Austin v. Reagan

Nat’l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (cleaned

up). A law that “requires an examination of speech only in

service of drawing neutral, location-based lines” does not

target speech based upon its communicative content. Id.; see

BellSouth Corp. v. FCC (BellSouth I), 144 F.3d 58, 69 (D.C.

Cir. 1998) (applying intermediate scrutiny to a law that

“defines the field of expression to which it applies by reference

to a set of categories that might in a formal sense be described

as content-based”). Facial neutrality, however, does not end the

analysis. Even laws that are facially content neutral are content

based if they (a) “cannot be justified without reference to the

content of the regulated speech” or (b) “were adopted by the

government because of disagreement with the message the

speech conveys.” Reed, 576 U.S. at 164 (cleaned up).

The provisions of the Act before us are facially content

neutral because they do not target speech based upon its

communicative content. The TikTok-specific provisions

instead straightforwardly require only that TikTok divest its

platform as a precondition to operating in the United States. On

its face, the Act concerns control by a foreign adversary and

not “the topic discussed or the idea or message expressed.” City

of Austin, 596 U.S. at 69 (cleaned up).

TikTok insists the TikTok-specific provisions nonetheless

require strict scrutiny because they single out a particular

speaker. To be sure, laws that “discriminate among media, or

among different speakers within a single medium, often present

serious First Amendment concerns.” Turner I, 512 U.S. at 659.

“It would be error to conclude, however, that the First

Amendment mandates strict scrutiny for any speech regulation

that applies to one medium (or a subset thereof) but not others.”

Id. at 660; see, e.g., BellSouth I, 144 F.3d at 68 (rejecting argu-

ment that a statute “warrants strict First Amendment review

because it targets named corporations”). Strict scrutiny “is

unwarranted when the differential treatment is justified by

some special characteristic of the particular medium being

regulated.” Turner I, 512 U.S. at 660–61 (cleaned up). As of

now, the TikTok platform is the only global platform of its kind

that has been designated by the political branches as a foreign

adversary controlled application. As explained below, the

Government presents two persuasive national security

justifications that apply specifically to the platform that TikTok

operates. “It should come as no surprise, then, that Congress

decided to impose [certain restrictions] upon [TikTok] only.”

Id. at 661.

Whether the Act, which is facially content neutral, is

subject to strict scrutiny therefore turns upon the Government’s

justifications for the law. See Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (stating that a “regulation of expres-

sive activity is content neutral so long as it is justified without

reference to the content of the regulated speech” (cleaned up));

Reed, 576 U.S. at 164 (explaining that laws are content based

if they “cannot be justified without reference to the content of

the regulated speech” (cleaned up)); City of Austin, 596 U.S. at

76 (explaining that “an impermissible purpose or justification”

may render a facially content-neutral restriction content based).

The Government offers two national security justifications:

(1) to counter the PRC’s efforts to collect great quantities of

data about tens of millions of Americans, and (2) to limit the

PRC’s ability to manipulate content covertly on the TikTok

platform. The former does not reference the content of speech

or reflect disagreement with an idea or message. See Ward,

491 U.S. at 792 (finding justifications offered for a municipal

noise regulation content neutral). The Government’s explana-

tion of the latter justification does, however, reference the

content of TikTok’s speech. Specifically, the Government

invokes the risk that the PRC might shape the content that

American users receive, interfere with our political discourse,

and promote content based upon its alignment with the PRC’s

interests. In fact, the Government identifies a particular topic

— Taiwan’s relationship to the PRC — as a “significant

potential flashpoint” that may be a subject of the PRC’s

influence operations, and its declarants identify other topics of

importance to the PRC. Gov’t Br. 22 (quoting Gov’t App. 7

(Decl. of Asst. Dir. of Nat’l Intel. Casey Blackburn)); see also

Gov’t App. 9, 22.

At the same time, the Government’s concern with content

manipulation does not reflect “an impermissible purpose or

justification.” City of Austin, 596 U.S. at 76. On the contrary,

the Government’s aim is to preclude a foreign adversary from

manipulating public dialogue. To that end, the Act narrowly

addresses foreign adversary control of an important medium of

communication in the United States. Consequently, the

Government does not suppress content or require a certain mix

of content. Indeed, content on the platform could in principle

remain unchanged after divestiture, and people in the United

States would remain free to read and share as much PRC propa-

ganda (or any other content) as they desire on TikTok or any

other platform of their choosing. What the Act targets is the

PRC’s ability to manipulate that content covertly. Understood

in that way, the Government’s justification is wholly consonant

with the First Amendment.

Although we can conceive of reasons intermediate scru-

tiny may be appropriate under these circumstances, we ulti-

mately do not rest our judgment on those reasons because the

Act satisfies “the more demanding standard.” Int’l Funding

Inst., 969 F.2d at 1116. We therefore assume without deciding

that strict scrutiny applies and uphold the law on that basis.8

Our decision to resolve the case in this way follows a similar

approach taken by this and other courts when faced with a

government action that would satisfy strict scrutiny. See In re

Sealed Case, 77 F.4th at 829–30; United States v. Hamilton,

699 F.3d 356, 371 (4th Cir. 2012); OPAL – Bldg. AAPI

Feminist Leadership v. Yost, No. 24-3768, 2024 WL 4441458,

at *5 (6th Cir. Oct. 8, 2024); see also Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 293, 298–99 (1984)

(assuming without deciding that conduct implicated the First

Amendment and upholding a regulation under intermediate

scrutiny); Int’l Funding Inst., 969 F.2d at 1116 (assuming

without deciding that intermediate scrutiny rather than rational-

basis review applied); United States v. Trump, 88 F.4th 990,

1008 (D.C. Cir. 2023) (assuming without deciding “that the

most demanding scrutiny” applied to an order restricting the

speech of the defendant in a criminal trial); cf. City of Ladue v.

Gilleo, 512 U.S. 43, 53 & n.11 (1994) (conversely assuming

We agree with our concurring colleague that the Government’s

data-protection rationale “is plainly content-neutral” and standing

alone would at most trigger intermediate scrutiny. Concurring Op.

12–13. As we have explained, however, that is not clear for the

Government’s content-manipulation justification, and no party has

identified any portion of the Act to which the data justification alone

applies. We therefore assume strict scrutiny applies to our review of

the Act in its entirety and consider both justifications under that

standard.

without deciding intermediate scrutiny rather than strict scru-

tiny should be applied, thereby setting “to one side the content

discrimination question”).

2. The Act satisfies strict scrutiny.

To satisfy strict scrutiny the Government must “demon-

strate that a speech restriction: (1) serves a compelling

government interest; and (2) is narrowly tailored to further that

interest.” In re Sealed Case, 77 F.4th at 830. “A restriction is

narrowly tailored if less restrictive alternatives would not

accomplish the Government’s goals equally or almost equally

effectively.” Id. (cleaned up). The Act clears this high bar.

We emphasize from the outset that our conclusion here is

fact-bound. The multi-year efforts of both political branches to

investigate the national security risks posed by the TikTok

platform, and to consider potential remedies proposed by

TikTok, weigh heavily in favor of the Act. The Government

has offered persuasive evidence demonstrating that the Act is

narrowly tailored to protect national security. “Given the sensi-

tive interests in national security and foreign affairs at stake,”

the Government’s judgment based upon this evidence “is enti-

tled to significant weight.” Holder v. Humanitarian Law

Project, 561 U.S. 1, 36 (2010). Our deference to the

Government’s national-security assessment “is redoubled by

the repeated acts of” the political branches to address the

national security problems presented by the TikTok platform.

Hikvision USA, Inc. v. FCC, 97 F.4th 938, 948 (D.C. Cir.

2024). The Act was the culmination of extensive, bipartisan

action by the Congress and by successive presidents. It was

carefully crafted to deal only with control by a foreign adver-

sary, and it was part of a broader effort to counter a well-

substantiated national security threat posed by the PRC. Under

these circumstances, the provisions of the Act that are before

us withstand the most searching review.

a. The Government’s justifications are

compelling.

Recall that the Government offers two national security

justifications for the Act: to counter (1) the PRC’s efforts to

collect data of and about persons in the United States, and

(2) the risk of the PRC covertly manipulating content on

TikTok. Each constitutes an independently compelling national

security interest.

In reaching that conclusion, we follow the Supreme Court

in affording great weight to the Government’s “evaluation of

the facts” because the Act “implicates sensitive and weighty

interests of national security and foreign affairs.”

Humanitarian Law Project, 561 U.S. at 33–34; Trump v.

Hawaii, 585 U.S. 667, 707–08 (2018) (same); see, e.g., Pac.

Networks Corp. v. FCC, 77 F.4th 1160, 1162, 1164 (D.C. Cir.

2023) (declining to second-guess the Executive’s judgment

regarding a national security threat posed by the PRC). At the

same time, of course, we “do not defer to the Government’s

reading of the First Amendment.” Humanitarian Law Project,

561 U.S. at 34. We simply recognize the comparatively limited

competence of courts at “collecting evidence and drawing

factual inferences in this area.” Id. With regard to national

security issues, the political branches may — and often must

— base their actions on their “informed judgment,” which

“affects what we may reasonably insist on from the

Government.” Id. at 34–35.

(i) National security justifications

The Government provides persuasive support for its

concerns regarding the threat posed by the PRC in general and

through the TikTok platform in particular. As Assistant

Director of National Intelligence Casey Blackburn explained,

the “PRC is the most active and persistent cyber espionage

threat to U.S. government, private-sector, and critical

infrastructure networks.” Its hacking program “spans the

globe” and “is larger than that of every other major nation,

combined.” The PRC has “pre-positioned” itself “for potential

cyber-attacks against U.S. critical infrastructure by building

out offensive weapons within that infrastructure.” Consistent

with that assessment, the Government “has found persistent

PRC access in U.S. critical telecommunications, energy, water,

and other infrastructure.” See China Telecom (Ams.) Corp. v.

FCC, 57 F.4th 256, 262–63 (D.C. Cir. 2022) (describing the

Government’s shift in focus from terrorism to PRC “cyber

threats” and the risk posed by use of PRC-connected “infor-

mation technology firms as systemic espionage platforms”).

“The FBI now warns that no country poses a broader, more

severe intelligence collection threat than China.” Id. at 263.

Of particular relevance to the Government’s first justifica-

tion for the Act, the PRC has engaged in “extensive and years-

long efforts to accumulate structured datasets, in particular on

U.S. persons, to support its intelligence and counterintelligence

operations.” It has done so through hacking operations, such as

by penetrating the U.S. Government Office of Personnel

Management’s systems and taking “reams” of personal data,

stealing financial data on 147 million Americans from a credit-

reporting agency, and “almost certainly” extracting health data

on nearly 80 million Americans from a health insurance

provider.

The PRC’s methods for collecting data include using “its

relationships with Chinese companies,” making “strategic

investments in foreign companies,” and “purchasing large data

sets.” For example, the PRC has attempted “to acquire sensitive

health and genomic data on U.S. persons” by investing in firms

that have or have access to such data. Government

counterintelligence experts describe this kind of activity as a

“hybrid commercial threat.”

The PRC poses a particularly significant hybrid commer-

cial threat because it has adopted laws that enable it to access

and use data held by Chinese companies. See China Telecom

(Ams.) Corp., 57 F.4th at 263 (describing the legal framework

through which the PRC has “augmented the level of state

control over the cyber practices of Chinese companies”). For

example, the National Security Law of 2015 requires all

citizens and corporations to provide necessary support to

national security authorities. Similarly, the Cybersecurity Law

of 2017 requires Chinese companies to grant the PRC full

access to their data and to cooperate with criminal and security

investigations.

The upshot of these and other laws, according to the

Government’s declarants, is that “even putatively ‘private’

companies based in China do not operate with independence

from the government and cannot be analogized to private

companies in the United States.” Through its “control over

Chinese parent companies,” the PRC can also “access infor-

mation from and about U.S. subsidiaries and compel their

cooperation with PRC directives.” As a result, the PRC can

“conduct espionage, technology transfer, data collection, and

other disruptive activities under the disguise of an otherwise

legitimate commercial activity.” According to Kevin

Vorndran, Assistant Director of the FBI’s Counterintelligence

Division, the PRC endeavors strategically to pre-position

commercial entities in the United States that the PRC can later

“co-opt.” These pre-positioning “tactics can occur over the

span of several years of planning and implementation, and they

are one “part of the PRC’s broader geopolitical and long-term

strategy to undermine U.S. national security.”

The PRC likewise uses its cyber capabilities to support its

influence campaigns around the world. Those global “influence

operations” aim to “undermine democracy” and “extend the

PRC’s influence abroad.” Specifically, the PRC conducts

“cyber intrusions targeted to affect U.S. and non-U.S. citizens

beyond its borders — including journalists, dissidents, and

individuals it views as threats — to counter and suppress views

it considers critical of [the PRC].” Notably, the Government

reports that “ByteDance and TikTok Global have taken action

in response to PRC demands to censor content outside of

China.”

As it relates to TikTok in the United States, the

Government predicts that ByteDance and TikTok entities

“would try to comply if the PRC asked for specific actions to

be taken to manipulate content for censorship, propaganda, or

other malign purposes on TikTok US.” The Government says

that ByteDance, which is subject to PRC laws requiring

cooperation with the PRC, could do so by acting unilaterally or

by conscripting its U.S. entities. The former conclusion is evi-

denced by the fact that the PRC maintains a powerful Chinese

Communist Party committee “embedded in ByteDance”

through which it can “exert its will on the company.” As of

2022, that committee “was headed by the company’s chief

editor and comprised at least 138 employees at its Beijing

office, including senior company managers.” The latter conclu-

sion is supported by the fact that TikTok’s U.S. operations are

“heavily reliant” on ByteDance. As TikTok’s declarants have

put it, “TikTok in the United States is an integrated part of the

global platform” supported by teams “spread across several

different corporate entities and countries,” and TikTok is

“highly integrated with ByteDance.”

The Government also identifies several public reports,

which were considered by the Congress prior to passing the

Act, regarding the risks posed by TikTok.9 For example, a

Government declarant points to “reporting by Forbes

Magazine” to illustrate in part why the Government did not

trust TikTok’s proposed mitigation measures. The reporting

suggested “that ByteDance employees abused U.S. user data,

even after the establishment of TTUSDS,” and drew attention

to “audio recordings of ByteDance meetings” that indicated

“ByteDance retained considerable control and influence over

TTUSDS operations.” In its report recommending passage of

the Act, a committee of the Congress collected “a list of public

statements that have been made regarding the national security

risks posed by . . . TikTok.” H.R. Rep. No. 118-417, at 5–12

(2024). According to the committee, public reporting sug-

gested that TikTok had stored sensitive information about U.S.

persons (including “Social Security numbers and tax identifica-

tions”) on servers in China; TikTok’s “China-based employ-

ees” had “repeatedly accessed non-public data about U.S.

TikTok users”; ByteDance employees had “accessed TikTok

user data and IP addresses to monitor the physical locations of

Although our disposition of this case does not turn upon these

reports, the Congress and the President obviously were entitled to

consider such materials when deciding whether to define TikTok as

a foreign adversary controlled application under the Act. Indeed, we

have “approved” the use of similar public materials by the President

when making decisions to designate people or entities under various

national-security related statutes. See Zevallos v. Obama, 793 F.3d

106, 109, 113 (2015) (finding it “clear that the government may

decide to designate an entity based on a broad range of evidence,

including intelligence data and hearsay declarations” (quoting Holy

Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (2003)

(regarding designation of an entity as a Specially Designated Global

Terrorist))).

specific U.S. citizens”; and PRC agents had inspected

“TikTok’s internal platform.” Id. at 7–10.

The resulting judgment of the Congress and the Executive

regarding the national security threat posed by the TikTok

platform “is entitled to significant weight, and we have persua-

sive evidence [in the public record] before us to sustain it.”

Humanitarian Law Project, 561 U.S. at 36. The petitioners

raise several objections to each national security justification,

which we take up next, but the bottom line is that they fail to

overcome the Government’s considered judgment and the

deference we owe that judgment.

(ii) Data collection

TikTok disputes certain details about the Government’s

concern with its collection of data on U.S. persons but misses

the forest for the trees. The TikTok platform has more than 170

million monthly users in the United States. It is an immensely

popular platform on which users in the United States have

uploaded more than 5.5 billion videos in a single year.

According to TikTok’s “privacy policy,” TikTok automatically

collects large swaths of data about its users, including device

information (IP address, keystroke patterns, activity across

devices, browsing and search history, etc.) and location data

(triangulating SIM card or IP address data for newer versions

of TikTok and GPS information for older versions). TikTok,

Aug. 19, 2024). It may also collect image and audio infor-

mation (including biometric identifiers and biometric infor-

mation such as faceprints and voiceprints); metadata (describ-

ing how, when, where, and by whom content was created, col-

lected, or modified); and usage information (including content

that users upload to TikTok). Id. That is not to mention infor-

mation that users voluntarily provide, such as name, age,

username, password, email, phone number, social media

account information, messages exchanged on the platform and,

“with your permission,” your “phone and social network con-

tacts.” Id. TikTok’s “privacy policy” also makes clear that it

uses these data to “infer additional information” about its users.

Given the magnitude of the data gathered by TikTok and

TikTok’s connections to the PRC, two consecutive presidents

understandably identified TikTok as a significant vulnerability.

Access to such information could, for example, allow the PRC

to “track the locations of Federal employees and contractors,

build dossiers of personal information for blackmail, and

conduct corporate espionage.” Addressing the Threat Posed by

TikTok, 85 Fed. Reg. at 48637.

TikTok does not deny that it collects a substantial amount

of data on its users. Instead TikTok disputes details about the

Government’s understanding of its data practices and questions

the sincerity of the Government’s data justification. At the

same time, however, TikTok’s own declarants provide support

for the Government’s concern. They emphasize the integrated

nature of the TikTok platform to argue that divestiture would

be infeasible. They argue that prohibiting data sharing between

TikTok in the United States and “the entities that operate the

global platform” would make TikTok uncompetitive with

“rival, global platforms.” They also acknowledge that, even

under TikTok’s proposed NSA, ByteDance would continue to

have access to some Protected Data on TikTok users in the

United States through “limited access protocols.” They like-

wise state that TikTok’s proposed NSA “does allow for

TTUSDS and Oracle to send ‘Excepted Data’ to ByteDance.”

Set against those statements, TikTok’s arguments

concerning the specific data collected and TikTok’s voluntary

data protection efforts fall flat. For example, TikTok quibbles

with the Government’s stated concern that TikTok collects data

on users’ “precise locations, viewing habits, and private mes-

sages,” including “data on users’ phone contacts who do not

themselves use TikTok.” Gov’t Br. 1; see TikTok Reply Br. 25.

According to a TikTok declarant, the current version of TikTok

can only “approximate users’ geographic locations.” Access to

a user’s contact list, likewise, is currently available only if a

user affirmatively opts in, and it is “anonymized and used only

to facilitate connections with other TikTok users.” TikTok

Reply Br. 25. TikTok further points to other data protections

that it claims to provide, such as storing sensitive user data in

the United States and controlling access to them.

The Government’s data-related justification for the Act,

however, does not turn on the details of TikTok’s mitigation

measures. Even after extended negotiations, TikTok could not

satisfactorily resolve the Government’s concerns. We have no

doubt, and the Government has never denied, that TikTok’s

proposed NSA would mitigate the Government’s concerns to

some extent. Nor do we doubt that TikTok’s voluntary mitiga-

tion efforts provide some protection. The problem for TikTok

is that the Government exercised its considered judgment and

concluded that mitigation efforts short of divestiture were

insufficient, as a TikTok declarant puts it, to mitigate “risks to

acceptable levels.” At bottom, the Government lacks confi-

dence that it has sufficient visibility and resources to monitor

TikTok’s promised measures, nor does it have “the requisite

trust” that “ByteDance and TTUSDS would comply in good

faith.” The court can neither fault nor second guess the

Government on these crucial points.

This situation is much like that in Pacific Networks Corp.

v. FCC, 77 F.4th 1160 (D.C. Cir. 2023), which involved the

Executive’s decision to revoke authorizations held by PRC-

controlled companies to operate communication lines in the

United States. There, as here, the PRC indirectly controlled the

companies “through a web of foreign affiliates.” 77 F.4th at

1163 (cleaned up). The Executive “concluded that China’s

ownership raised significant concerns that the [companies]

would be forced to comply with Chinese government

requests.” Id. (cleaned up). The Government was concerned

that the PRC could “access, monitor, store, and in some cases

disrupt or misroute U.S. communications, which in turn

[would] allow them to engage in espionage and other harmful

activities against the United States.” Id. (cleaned up). The

Executive “further concluded that the [companies] had shown

a lack of candor and trustworthiness” and therefore “nothing

short of revocation would ameliorate the national-security

risks.” Id. This court declined the appellants’ invitation to

“second-guess” the Executive’s judgment regarding the threat

to national security. Id. at 1164. We also upheld the

Executive’s conclusion that the companies’ “untrustworthiness

would make any mitigation agreement too risky” in part

because the Executive could not “comprehensively monitor

compliance” or “reliably detect surreptitious, state-sponsored

efforts at evasion.” Id. at 1165–66. The same considerations

similarly support the Government’s judgment here.

We also reject TikTok’s argument that the Government’s

data-related concerns are speculative. The Government “need

not wait for a risk to materialize” before acting; its national

security decisions often must be “based on informed judg-

ment.” China Telecom (Ams.) Corp., 57 F.4th at 266. Here the

Government has drawn reasonable inferences based upon the

evidence it has. That evidence includes attempts by the PRC to

collect data on U.S. persons by leveraging Chinese-company

investments and partnerships with U.S. organizations. It also

includes the recent disclosure by former TikTok employees

that TikTok employees “share U.S. user data on PRC-based

internal communications systems that China-based ByteDance

employees can access,” and that the ByteDance subsidiary

responsible for operating the platform in the United States

“approved sending U.S. data to China several times.” In short,

the Government’s concerns are well founded, not speculative.

TikTok next contends that, because other companies with

operations in China collect data in the United States, its data

collection is not the Government’s real concern. As already

explained, however, the Act complements the Data Broker

Law, which limits the access of any foreign adversary country

(or entity controlled by such a country) to data from third-party

brokers. The Act also includes a generally applicable frame-

work through which the Executive can address other foreign

adversary controlled applications in the future. That the Act

does not fully solve the data collection threat posed by the PRC

does not mean it was not a step in the right direction. Moreover,

TikTok does not identify any company operating a comparable

platform in the United States with equivalent connections to the

PRC. Nor would it be dispositive if TikTok had done so

because the political branches are free to “focus on their most

pressing concerns.” Williams-Yulee v. Florida Bar, 575 U.S.

433, 449 (2015). The Government’s multi-year efforts to

address the risks posed by the TikTok platform support the

conclusion that TikTok was, in fact, the Government’s most

pressing concern.

(iii) Content manipulation

Preventing covert content manipulation by an adversary

nation also serves a compelling governmental interest. The

petitioners object for two reasons, neither of which persuades.

First, TikTok incorrectly frames the Government’s

justification as suppressing propaganda and misinformation.

The Government’s justification in fact concerns the risk of the

PRC covertly manipulating content on the platform. For that

reason, again, the Act is directed only at control of TikTok by

a foreign adversary nation. At points, TikTok also suggests the

Government does not have a legitimate interest in countering

covert content manipulation by the PRC. To the extent that is

TikTok’s argument, it is profoundly mistaken. “At the heart of

the First Amendment lies the principle that each person should

decide for himself or herself the ideas and beliefs deserving of

expression, consideration, and adherence. Our political system

and cultural life rest upon this ideal.” Turner I, 512 U.S. at 641.

When a government — domestic or foreign — “stifles speech

on account of its message . . . [it] contravenes this essential

right” and may “manipulate the public debate through coercion

rather than persuasion.” Id.; see also Nat’l Rifle Ass’n of Am.,

602 U.S. at 187 (explaining that at the core of the First

Amendment “is the recognition that viewpoint discrimination

is uniquely harmful to a free and democratic society”).

In this case, a foreign government threatens to distort free

speech on an important medium of communication. Using its

hybrid commercial strategy, the PRC has positioned itself to

manipulate public discourse on TikTok in order to serve its

own ends. The PRC’s ability to do so is at odds with free speech

fundamentals. Indeed, the First Amendment precludes a

domestic government from exercising comparable control over

a social media company in the United States. See NetChoice,

144 S. Ct. at 2407 (explaining that a state government “may not

interfere with private actors’ speech” because the First

Amendment prevents “the government from tilting public

debate in a preferred direction” (cleaned up)). Here the

Congress, as the Executive proposed, acted to end the PRC’s

ability to control TikTok. Understood in that way, the Act actu-

ally vindicates the values that undergird the First Amendment.

Like the Supreme Court, “We also find it significant that

[the Government] has been conscious of its own responsibility

to consider how its actions may implicate constitutional

concerns.” Humanitarian Law Project, 561 U.S. at 35. Rather

than attempting itself to influence the content that appears on a

substantial medium of communication, the Government has

acted solely to prevent a foreign adversary from doing so. As

our concurring colleague explains, this approach follows the

Government’s well-established practice of placing restrictions

on foreign ownership or control where it could have national

security implications. Concurring Op. 2–5; see 47 U.S.C.

§ 310(a)–(b) (restricting foreign control of radio licenses); Pac.

Networks Corp., 77 F.4th at 1162 (upholding the FCC’s deci-

sion to revoke authorizations to operate communications lines);

Moving Phones P’ship v. FCC, 998 F.2d 1051, 1055, 1057

(D.C. Cir. 1993) (upholding the Executive’s application of the

Communications Act’s “ban on alien ownership” of radio

licenses “to safeguard the United States from foreign influence

in broadcasting” (cleaned up)); see also Palestine Info. Off. v.

Shultz, 853 F.2d 932, 936, 945 (D.C. Cir. 1988) (upholding the

Executive’s divestiture order under the Foreign Missions Act

regarding an organization the activities of which “were deemed

inimical to America’s interests”); 49 U.S.C. § 40102(a)(2),

(15) (requiring that a U.S. “air carrier” be “under the actual

control of citizens of the United States”).

Consequently, the Act is not, as the User Petitioners sug-

gest, an effort to “control the flow of ideas to the public.”

Lamont v. Postmaster Gen., 381 U.S. 301, 306–07 (1965). Nor

are the User Petitioners correct to characterize the TikTok-

specific provisions as a prior restraint on speech or an infringe-

ment on associational rights. Were a divestiture to occur,

TikTok Inc.’s new owners could circulate the same mix of

content as before without running afoul of the Act. People in

the United States could continue to engage with content on

TikTok as at present. The only change worked by the Act is

that the PRC could not “manipulate the public debate through

coercion rather than persuasion.” Turner I, 512 U.S. at 641.

TikTok resists this conclusion by emphasizing stray com-

ments from the congressional proceedings that suggest some

congresspersons were motivated by hostility to certain content.

The Supreme Court, however, has repeatedly instructed that

courts should “not strike down an otherwise constitutional

statute on the basis of an alleged illicit legislative motive.”

O’Brien, 391 U.S. at 383; City of Renton v. Playtime Theaters,

Inc., 475 U.S. 41, 47–49 (1986) (rejecting speculation about

the “motivating factor” behind an ordinance justified without

reference to speech); Turner I, 512 U.S. at 652 (similar). The

Act itself is the best evidence of the Congress’s and the

President’s aim. The narrow focus of the Act on ownership by

a foreign adversary and the divestiture exemption provide

convincing evidence that ending foreign adversary control, not

content censorship, was the Government’s objective.

The petitioners nevertheless contend the divestiture provi-

sions and an exclusion from the generally applicable track

betray the Government’s real purpose to ban TikTok as a

means of censoring content. They claim the divestiture exemp-

tion cannot be satisfied in the time allowed by the Act, which

effectively makes it a ban. Conversely, they argue an exclusion

from the definition of “covered company” — for entities that

operate an “application whose primary purpose is to allow

users to post product reviews, business reviews, or travel

information and reviews,” § 2(g)(2)(B) — creates a loophole

to the generally applicable track so large that no other company

is likely ever to be subjected to the prohibitions of the Act.10

The upshot, according to TikTok, is that the Congress

The parties offer competing interpretations of this exclusion.

Because we do not doubt the Government’s “proffered . . . interest

actually underlies the law” under either interpretation, we have no

occasion to interpret that provision in this case. Blount v. SEC,

61 F.3d 938, 946 (D.C. Cir. 1995) (quotation omitted).

“purpose-built the Act to ban TikTok because it objects to

TikTok’s content.” TikTok Reply Br. 28.

We discern no such motive from the divestiture provisions

or the design of the generally applicable framework. Although

the Government does not rebut TikTok’s argument that 270

days is not enough time for TikTok to divest given its high

degree of integration with ByteDance, 270 days is a substantial

amount of time. If TikTok (or any company subject to the Act)

is unable to divest within 270 days, it can do so later and

thereby lift the prohibitions. § 2(c)(1)(A)–(B). Consequently,

we detect no illicit motive on the part of the Congress to ban

TikTok and suppress its speech by means of the divestiture

provisions.

The same is true of the reviews exclusion, which appears

to reflect a good-faith effort by the Congress to narrow the

scope of the general track to applications the Congress deter-

mined to present the greatest risks to national security. That the

Congress created a new mechanism by which the Executive

can counter threats similar to TikTok in the future — and

excluded a category of applications from that framework —

does not suggest the Congress’s national security concerns

specific to TikTok were a charade. In fact, the Congress was

not required to include a generally applicable framework at all;

it could have focused only on TikTok. See Williams-Yulee,

575 U.S. at 452 (“The First Amendment does not put [the

Congress] to [an] all-or-nothing choice”). The Congress was

entitled to address the threat posed by TikTok directly and

create a generally applicable framework, however imperfect,

for future use. It would be inappropriate to “punish” the

Congress for attempting to address future national security

threats by inferring an impermissible motive. Id.

Second, TikTok contends the Government’s content-

manipulation rationale is speculative and based upon factual

errors. TikTok fails, however, to grapple fully with the

Government’s submissions. On the one hand, the Government

acknowledges that it lacks specific intelligence that shows the

PRC has in the past or is now coercing TikTok into manipulat-

ing content in the United States. On the other hand, the

Government is aware “that ByteDance and TikTok Global have

taken action in response to PRC demands to censor content

outside of China.” The Government concludes that ByteDance

and its TikTok entities “have a demonstrated history of

manipulating the content on their platforms, including at the

direction of the PRC.” Notably, TikTok never squarely denies

that it has ever manipulated content on the TikTok platform at

the direction of the PRC. Its silence on this point is striking

given that “the Intelligence Community’s concern is grounded

in the actions ByteDance and TikTok have already taken over-

seas.” It may be that the PRC has not yet done so in the United

States or, as the Government suggests, the Government’s lack

of evidence to that effect may simply reflect limitations on its

ability to monitor TikTok.

In any event, the Government reasonably predicts that

TikTok “would try to comply if the PRC asked for specific

actions to be taken to manipulate content for censorship, propa-

ganda, or other malign purposes” in the United States. That

conclusion rests on more than mere speculation. It is the

Government’s “informed judgment” to which we give great

weight in this context, even in the absence of “concrete evi-

dence” on the likelihood of PRC-directed censorship of TikTok

in the United States. Humanitarian Law Project, 561 U.S. at

34–35.

The purported factual errors identified by TikTok do not

alter that conclusion. TikTok principally faults the Government

for claiming the recommendation engine is “based in China”

because it now resides in the Oracle cloud. TikTok Reply Br.

21–22. No doubt, but the Government’s characterization is

nonetheless consistent with TikTok’s own declarations.

TikTok’s declarants explained that now and under its proposed

NSA “ByteDance will remain completely in control of

developing the Source Code for all components that comprise

‘TikTok’ . . . including the Recommendation Engine.” They

likewise represent that TikTok presently “relies on the support

of employees of other ByteDance subsidiaries” for code

development. Even when TikTok’s voluntary mitigation

measures have been fully implemented, the “source code

supporting the TikTok platform, including the recommenda-

tion engine, will continue to be developed and maintained by

ByteDance subsidiary employees, including in the United

States and in China.” TikTok is therefore correct to say the

recommendation engine “is stored in the Oracle cloud,” but

gains nothing by flyspecking the Government’s characteriza-

tion of the recommendation engine still being in China.

b. The Act is narrowly tailored.

The TikTok-specific provisions of the Act are narrowly

tailored to further the Government’s two national security

interests. “It bears emphasis that, under the strict-scrutiny

standard, a restriction must be narrowly tailored, not perfectly

tailored.” In re Sealed Case, 77 F.4th at 830–31 (cleaned up).

Here the relevant provisions of the Act apply narrowly because

they are limited to foreign adversary control of a substantial

medium of communication and include a divestiture exemp-

tion. By structuring the Act in this way, the Congress addressed

precisely the harms it seeks to counter and only those harms.

Moreover, as already explained, the Act’s emphasis on

ownership and control follows a longstanding approach to

counter foreign government control of communication media

in the United States. E.g., Pac. Networks Corp., 77 F.4th at

1162; Moving Phones P’ship, 998 F.2d at 1055–56. The

petitioners argue nonetheless that there are less restrictive

alternatives available and contend the Act is fatally both

overinclusive and underinclusive.

(i) TikTok’s proposed NSA

TikTok presents its proposed NSA as a less restrictive

alternative. TikTok contends that, at minimum, our considera-

tion of this alternative implicates factual disputes that require

additional proceedings. TikTok, however, misapprehends the

thrust of the Government’s objection to the proposed NSA. A

senior Executive Branch official involved in the negotiations

provided several reasons for which the Executive rejected the

proposal. These included lack of U.S. visibility into PRC

activity, the Executive’s inability to monitor compliance with

the NSA, and therefore its inadequate ability to deter non-

compliance; insufficient operational independence for TikTok;

and insufficient data protections for Americans. Moreover, and

“most fundamentally,” the NSA “still permitted certain data of

U.S. users to flow to China, still permitted ByteDance execu-

tives to exert leadership control and direction over TikTok’s

US operations, and still contemplated extensive contacts

between the executives responsible for the TikTok U.S. plat-

form and ByteDance leadership overseas.” At bottom,

acceptance of “the Final Proposed NSA would ultimately have

relied on the Executive Branch trusting ByteDance” to comply

with the agreement, which the Government understandably

judged it could not do. Based upon this array of problems, the

Executive rejected the proposal and pursued a legislative

solution.

TikTok adamantly disagrees with the Executive’s judg-

ment. It is not, however, the job of the petitioners or of the

courts to substitute their judgments for those of the political

branches on questions of national security. See Hernández v.

Mesa, 589 U.S. 93, 113 (2020). Understandably, TikTok

therefore attempts to couch its disagreement in factual terms.

But TikTok does not present any truly material dispute of fact.

Consider, for example, TikTok’s claim that data

anonymization under TikTok’s proposed NSA would effec-

tively mitigate the Government’s concerns. The Government

does not dispute that TikTok’s proposal provides for data

anonymization; rather, it deems this protection vulnerable to

circumvention and therefore insufficient to resolve the

Government’s data-related concerns. That is a dispute of judg-

ment not of fact. A similar point applies to the parties’ disagree-

ment regarding the feasibility of Oracle reviewing TikTok’s

source code for the Government. TikTok’s declarant says

Oracle could apply methods consistent with industry standards

to streamline that review and points out that TikTok’s proposed

NSA would require Oracle to conduct its initial review in 180

days. The Government does not disagree; rather, it doubts the

adequacy of Oracle’s review of the source code —

notwithstanding “Oracle’s considerable resources” — based

upon extensive technical conversations with Oracle. Moreover,

even after “assuming every line of Source Code could be

monitored and verified,” the Government still concluded that

“the PRC could exert malign influence” through commercial

features of the platform that would not be identified through a

review of the code. TikTok’s disagreement with the

Government boils down to a dispute about the sufficiency of

Oracle’s review to mitigate threats posed by the PRC, which is

a matter of judgment, not of fact.

The same is true regarding the role of TTUSDS in limiting

the PRC’s ability to control TikTok through ByteDance. The

Government concludes that TTUSDS would be insufficiently

independent of ByteDance, fears TTUSDS could be pressured

to do the latter’s bidding, and doubts TTUSDS could prevent

interference by ByteDance. Indeed, the Government predicts

that “TTUSDS personnel here would not resist demands to

comply” with directives “even if aware of pressure from the

PRC government.” Whether TTUSDS sufficiently mitigates

the risk of PRC interference through ByteDance is ultimately

an issue of judgment, not of fact.

Similarly, the parties’ dispute about the adequacy of the

temporary shutdown option — or “kill switch” — under the

NSA centers on the Government’s ultimate conclusion

regarding the sufficiency of that option. The Government’s

declarant on this point explains that the “temporary stop would

not . . . give the U.S. Government anything resembling com-

plete discretion to shut down the TikTok platform based on its

own independent assessment of national security risk and

assessments from the U.S. Intelligence Community.” TikTok’s

declarant, by contrast, characterizes the so-called “kill switch”

as a “unilateral remedy” of unparalleled “magnitude in a

CFIUS mitigation agreement,” which could be applied by the

Government if TikTok deployed unreviewed source code or if

TikTok violates the protocols for handling Protected Data.

Rhetoric aside, the substance of TikTok’s objection is the

Government’s ultimate conclusion that the shutdown option

would not adequately address the Government’s concerns

because of the limited scope of the shutdown option as well as

the Government’s inability to monitor TikTok.

In sum, even if we resolved every supposed factual dispute

in TikTok’s favor, the result would be the same. For us to

conclude the proposed NSA is an equally or almost equally

effective but less restrictive alternative, we would have to reject

the Government’s risk assessment and override its ultimate

judgment. That would be wholly inappropriate after Executive

Branch officials “conducted dozens of meetings,” considered

“scores of drafts of proposed mitigation terms,” and engaged

with TikTok as well as Oracle for more than two years in an

effort to work out an acceptable agreement. Here “respect for

the Government’s conclusions is appropriate.” Humanitarian

Law Project, 561 U.S. at 34.

The petitioners attempt to draw a distinction between the

Executive’s rejection of the proposed NSA and the Congress’s

deliberations prior to passing the Act. The petitioners complain

the Congress failed even to consider TikTok’s proposed NSA.

Because the Act applies narrowly to the TikTok platform,

TikTok goes so far as to argue the Congress was required to

make legislative findings to explain its rationale for passing the

Act. These objections are unavailing. The Congress “is not

obligated, when enacting its statutes, to make a record of the

type that an administrative agency or court does to accommo-

date judicial review.” Time Warner Entm’t Co. v. FCC, 93 F.3d

957, 976 (D.C. Cir. 1996) (cleaned up); Sable Commc’ns of

Cal., Inc. v. FCC, 492 U.S. 115, 133 (1989) (Scalia, J.,

concurring) (“Neither due process nor the First Amendment

requires legislation to be supported by committee reports, floor

debates, or even consideration, but only by a vote”). Moreover,

the petitioners cannot credibly claim the Congress was any less

aware than the Executive of the proposed NSA as a potential

alternative. Prior to passage of the Act, while the Executive was

negotiating the proposed NSA with TikTok, Executive Branch

officials briefed congressional committees several times. The

record shows that congresspersons were aware of TikTok’s

voluntary mitigation efforts; TikTok and its supporters, includ-

ing the PRC itself, lobbied the Congress not to pass the Act;

and TikTok displayed “a pop-up message urging users to

contact their representatives about the Act,” which prompted a

deluge of calls to congresspersons. We think it clear the

Congress did not reject the proposed NSA for lack of familiar-

ity; like the Executive, the Congress found it wanting.

To qualify as a less restrictive alternative, the proposed

NSA must “accomplish the Government’s goals equally or

almost equally effectively.” In re Sealed Case, 77 F.4th at 830

(cleaned up). As already stated, the Government has offered

considerable evidence that the NSA would not resolve its

national security concerns. Divestiture, by contrast, clearly

accomplishes both goals more effectively than would the

proposed NSA. It has the added virtue of doing so with greater

sensitivity to First Amendment concerns by narrowly

mandating an end to foreign adversary control. The proposed

NSA, by contrast, contemplates an oversight role for the U.S.

Government that includes what TikTok calls a “kill switch

remedy” and the Government characterizes as “temporary

stop” authority over the platform. Entangling the U.S. govern-

ment in the daily operations of a major communications plat-

form would raise its own set of First Amendment questions.

Indeed, it could be characterized as placing U.S. government

“officials astride the flow of [communications],” the very

arrangement excoriated in Lamont, 381 U.S. at 306. Divestiture

poses no such difficulty.

(ii) Other options

The petitioners suggest a variety of other options that the

Government also found inadequate. These include disclosure

or reporting requirements, the Government using speech of its

own to counter any alleged foreign propaganda, limiting

TikTok’s collection of location and contact data, and extending

the ban of TikTok on government devices to government

employees’ personal devices. None would “accomplish the

Government’s goals equally or almost equally effectively.” In

re Sealed Case, 77 F.4th at 830 (cleaned up).

The first two suggestions obviously fall short. As the

Government points out, covert manipulation of content is not a

type of harm that can be remedied by disclosure. The idea that

the Government can simply use speech of its own to counter

the risk of content manipulation by the PRC is likewise naïve.

Moreover, the petitioners’ attempt to frame the use of

Government speech as a means of countering “alleged foreign

propaganda,” Creator Br. 54, is beside the point. It is the “secret

manipulation of the content” on TikTok — not foreign propa-

ganda — that “poses a grave threat to national security.” Gov’t

Br. 36. No amount of Government speech can mitigate that

threat nearly as effectively as divestiture.

The petitioners’ other proposals are similarly flawed.

Creators’ contention that the Government “could simply ban

TikTok from collecting . . . location and contact data”

fundamentally misapprehends the Government’s data-

collection concerns, which are not limited to two types of data.

Creator Reply Br. 29. The data-collection risks identified by

the Government include the PRC’s ability to use TikTok for

“bulk collection of data” and for “targeted collection on

individuals.” Gov’t Br. 48. Indeed, the FBI has specifically

assessed that “TikTok could facilitate the PRC’s access to U.S.

users’ data, which could enable PRC espionage, technology

transfer, data collection and influence activities.” For example,

the PRC could use TikTok data to enhance its “artificial intelli-

gence capabilities” and obtain “extensive information about

users and non-users, including U.S. Government and U.S.

intelligence community employees, U.S. political dissidents,

and other individuals of interest to the PRC.” Moreover, even

if the Government’s concerns were limited to certain categories

of data, its inability to monitor TikTok makes a targeted

prohibition on the collection of specific types of data less

effective than divestiture.

For similar reasons, a limited prohibition addressing

government employees would not suffice. The Government’s

concern extends beyond federal employees to “family mem-

bers or potential future government employees (many of whom

may be teenagers today, a particular problem given TikTok’s

popularity among young people).” Indeed, as the Government

emphasizes, the Congress was legislating “in the interest of all

Americans’ data security.” Gov’t Br. 58. A more limited

prohibition would not be as effective as divestiture.

The User Petitioners also identify as options various

legislative proposals, such as the Adversarial Platform

Prevention Act of 2021, S. 47, 117th Cong. (2021); Internet

Application I.D. Act, H.R. 4000, 117th Cong. (2021); and the

TELL Act, H.R. 742, 118th Cong. (2023), that the Congress

did not adopt. In substance, these proposals are similar to the

alternatives we just considered and found less effective than

divestiture. If anything, those unenacted lesser legislative pro-

posals undermine rather than advance the User Petitioners’

preferred alternatives: That the Congress considered a series of

other measures before ultimately adopting the Act implies only

that the Congress determined nothing short of divestiture

would sufficiently avoid the risks posed by TikTok.

In short, the petitioners suggest an array of options none of

which comes close to serving either, much less both, the

Government’s goals as effectively as does divestiture. Each

consequently fails to qualify as a less restrictive alternative for

purposes of the First Amendment.

(iii) Overinclusive / underinclusive

The petitioners contend the Act is both overinclusive and

underinclusive. They argue the Act is overinclusive primarily

because the TikTok-specific provisions apply to another

ByteDance product, CapCut, that can be used to edit videos on

various platforms including TikTok but does not collect user

data or present an opportunity for PRC manipulation of con-

tent. Given the Government’s well-supported concerns about

ByteDance, it was necessary for the Act to apply to all

ByteDance entities. Moreover, the petitioners fail to demon-

strate that neither of the Government’s two national security

concerns implicate CapCut. We therefore conclude the

TikTok-specific provisions of the Act are not overinclusive.

We likewise conclude the Act is not fatally underinclusive.

The main purpose of inquiring into underinclusiveness is “to

ensure that the proffered state interest actually underlies the

law.” Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 17 (D.C. Cir.

2009) (cleaned up). For that reason, underinclusiveness is fatal

to a regulation only “if it cannot fairly be said to advance any

genuinely substantial governmental interest, because it pro-

vides only ineffective or remote support for the asserted goals,

or limited incremental support.” Id. (cleaned up). As already

explained, the Congress’s decision separately and more

immediately to address TikTok, the Executive’s “most press-

ing” cause for concern, was permissible. See Williams-Yulee,

575 U.S. at 449. That would be so even if the Congress had not

included the generally applicable framework to deal with other

foreign adversary controlled platforms or had not passed the

Data Broker Law alongside the Act. That the Government did

both supports our conclusion that the Act reflects a good-faith

effort on the part of the Government to address its national

security concerns.

* * *

To summarize our First Amendment analysis: The

Government has provided two national security justifications

for the Act. We assumed without deciding the Act is subject to

strict scrutiny and we now uphold the TikTok-specific portions

of the Act under each justification. This conclusion is sup-

ported by ample evidence that the Act is the least restrictive

means of advancing the Government’s compelling national

security interests.

C. Equal Protection

TikTok argues that the Act violates its right to the equal

protection of the laws because it singles out TikTok for disfa-

vored treatment relative to other similarly situated platforms.

The Government contends its justifications for the Act satisfy

the requirement of equal protection and add that TikTok

received more process than a company would receive under the

generally applicable provisions. We conclude the Act is con-

sistent with the requirement of equal protection.

“In equal protection challenges the critical question is

always whether there is an appropriate governmental interest

suitably furthered by the differential treatment at issue.” Cmty-

Serv. Broad. of Mid-Am., Inc. v. FCC, 593 F.2d 1102, 1122

(D.C. Cir. 1978) (cleaned up). This question “lies at the

intersection” of equal protection and the First Amendment.

News Am. Pub., Inc. v. FCC, 844 F.2d 800, 804 (D.C. Cir.

1988) (cleaned up).

Although we review “conventional economic legislation”

under a “minimum rationality” standard, id. at 802, we have

held something “more is required than ‘minimum rationality’”

when a regulation burdens “a single publisher/broadcaster,” id.

at 814. See also BellSouth I, 144 F.3d at 68 (explaining that

News America does not require strict scrutiny for “statutes

singling out particular persons for speech restrictions”); Cmty-

Serv. Broad. of Mid-Am., Inc., 593 F.2d at 1122 (applying to a

“statute affecting First Amendment rights” an “equal protec-

tion standard [that] is closely related to the O’Brien First

Amendment tests”). Having concluded the relevant parts of the

Act do not violate the First Amendment even when subjected

to heightened scrutiny, we readily reach the same conclusion

when analyzing the Act in equal protection terms.

TikTok’s equal protection argument boils down to point-

ing out that TikTok alone is singled out by name in the Act,

unlike companies that in the future may be subject to the gener-

ally applicable provisions of the Act. Merely singling a com-

pany out, however, does not amount to an equal protection

violation if doing so furthers an appropriate governmental

interest. The controlling question is “whether there is an

appropriate governmental interest suitably furthered by the

differential treatment at issue.” Cmty-Serv. Broad. of Mid-Am.,

Inc., 593 F.2d at 1122–23 (holding statute violated First and

Fifth Amendments by unjustifiably burdening only non-

commercial broadcasters). Here the Government justified the

Act by presenting two national security risks specific to the

TikTok platform. By naming TikTok in the Act, the Congress

ensured TikTok-related risks were addressed promptly.

Simultaneously creating a generally applicable framework

gave the Executive a tool to address similar risks that may come

to light in the future. This differential treatment furthers the

Government’s national security interest in countering the

immediate threat posed by the PRC’s control of TikTok.

The governmental interests here also stand in stark con-

trast to the case upon which TikTok primarily relies, in which

the “sole apparent difference” in treatment between similarly

situated broadcasters was due to “an accident of timing.” News

Am. Pub., Inc., 844 F.2d at 815. That case involved legislation

that regulated waivers of the rule against newspaper-television

cross-ownership in a way that targeted a single person “with

the precision of a laser beam.” Id. at 814. The legislation,

however, bore “only the most strained relationship to the pur-

pose hypothesized by the [Government].” Id. Here, by contrast,

the Act bears directly on the TikTok-specific national security

harms identified and substantiated by the Government.

Moreover, as the Government notes, in certain respects

TikTok received more process than would a company coming

under the generally applicable provisions. TikTok participated

in a prolonged negotiation with the Executive that featured

numerous meetings and several proposals. It also received

individualized consideration by the Congress prior to being

required to divest. In contrast, under the generally applicable

provisions the Executive need only provide “public notice” and

issue a “public report” to the Congress prior to requiring a com-

pany to sever its ties to an adversary nation. § 2(g)(3)(B). In

short, the Act singled out TikTok because of its known

characteristics and history. It therefore did not violate TikTok’s

constitutional right to equal protection of the laws.

D. The Bill of Attainder Clause

TikTok next claims the Act is a bill of attainder, and there-

fore prohibited by Article I, § 9, clause 3 of the Constitution.

The Government responds that the Bill of Attainder Clause

does not apply to corporations and that, in any event, the Act

does not constitute a legislative punishment. We agree that the

Act is not a bill of attainder.

A law is a bill of attainder if it “(1) applies with specificity,

and (2) imposes punishment.” BellSouth Corp. v. FCC

(BellSouth II), 162 F.3d 678, 683 (D.C. Cir. 1998). Because the

Act applies with specificity, this claim turns on whether the Act

can fairly be deemed a punishment. We conclude the Act is not

a punishment under any of the three tests used to distinguish a

permissible burden from an impermissible punishment.

Before turning to those tests, however, we briefly address

the Government’s threshold argument that the Bill of Attainder

Clause does not apply to corporations. In other cases, we have

assumed without deciding that the clause applies to corpora-

tions but emphasized that differences between commercial

entities and persons need to be considered. See, e.g., Kaspersky

Lab, Inc. v. DHS, 909 F.3d 446, 453–54, 461–63 (D.C. Cir.

2018) (assuming the Bill of Attainder Clause protects corpora-

tions but emphasizing the differences between corporations

and “living, breathing human beings”); BellSouth I, 144 F.3d

at 63 & n.5 (assuming the clause protects corporations but

recognizing the importance of understanding “its effect on

flesh-and-blood people”). We take the same approach here.

To determine whether a law constitutes a punishment, we

analyze:

(1) whether the challenged statute falls within the

historical meaning of legislative punishment [the

historical test];

(2) whether the statute, viewed in terms of the type and

severity of burdens imposed, reasonably can be

said to further nonpunitive legislative purposes

[the functional test]; and

(3) whether the legislative record evinces a congres-

sional intent to punish [the motivational test].

Kaspersky Lab, Inc., 909 F.3d at 455 (cleaned up). The Act

clearly is not a bill of attainder judged by any of these tests.

TikTok contends the Act satisfies the historical test

because it bars TikTok from its chosen business. TikTok

reasons the prohibitions of the Act are close analogs to two

categories of legislative action historically regarded as bills of

attainder: confiscation of property and legislative bars to

participation in a specific employment or profession. See

BellSouth II, 162 F.3d at 685 (explaining the historical

understanding of punishment). According to TikTok, the Act

effectively requires TikTok to relinquish its property or see it

rendered useless, and it precludes TikTok from continuing to

participate in a legitimate business enterprise. As already

explained, however, the Act requires a divestiture — that is, a

sale, not a confiscation — as a condition of continuing to

operate in the United States. See BellSouth I, 144 F.3d at 65

(explaining that although “structural separation is hardly

costless, neither does it remotely approach the disabilities that

have traditionally marked forbidden attainders”); see also

Kaspersky Lab, Inc., 909 F.3d at 462–63 (comparing a law

requiring the Government to remove from its systems a Russia-

based company’s software to the business regulations in the

BellSouth cases). Nor is the divestiture requirement analogous

to a legislative bar on someone’s participation in a specific

employment or profession. See Kaspersky Lab, Inc., 909 F.3d

at 462 (rejecting a similar analogy in part “because human

beings and corporate entities are so dissimilar” (cleaned up)).

The closer historical analog to the Act is a line-of-business

restriction, which does not come within the historical meaning

of a legislative punishment. See BellSouth II, 162 F.3d at 685

(observing “the Supreme Court has approved other line-of-

business restrictions without ever suggesting that the

restrictions constituted ‘punishment’” (collecting cases));

Kaspersky Lab, Inc., 909 F.3d at 463 (explaining

“the BellSouth cases make clear that the Bill of Attainder

Clause tolerates statutes that, in pursuit of legitimate goals such

as public safety or economic regulation, prevent companies

from engaging in particular kinds of business or particular

combinations of business endeavors”). In fact, BellSouth II all

but forecloses TikTok’s argument by recognizing that a

“statute that leaves open perpetually the possibility of

[overcoming a legislative restriction] does not fall within the

historical meaning of forbidden legislative punishment.”

162 F.3d at 685 (quoting Selective Serv. Sys. v. Minn. Pub. Int.

Rsch. Grp., 468 U.S. 841, 853 (1984)) (brackets in original).

The qualified divestiture exemption does just that. It “leaves

open perpetually” the possibility of overcoming the prohibi-

tions in the Act: TikTok can execute a divestiture and return to

the U.S. market at any time without running afoul of the law.

The Act also passes muster under the functional test. For

purposes of this analysis, the “question is not whether a burden

is proportionate to the objective, but rather whether the burden

is so disproportionate that it belies any purported nonpunitive

goals.” Kaspersky Lab, Inc., 909 F.3d at 455 (cleaned up).

Considering our conclusion that the Act passes heightened

scrutiny for purposes of the First Amendment, it obviously

satisfies the functional inquiry here: The Act furthers the

Government’s nonpunitive objective of limiting the PRC’s

ability to threaten U.S. national security through data collection

and covert manipulation of information. The Government’s

solution to those threats “has the earmarks of a rather conven-

tional response to a security risk: remove the risk.” Id. at 457

(cleaned up). In other words, the Government’s attempt to

address the risks posed by TikTok reflects a forward-looking

prophylactic, not a backward-looking punitive, purpose. That

is sufficient to satisfy the functional analysis. See id. at 460

(stating the functional test “does not require that the Congress

precisely calibrate the burdens it imposes to the goals it seeks

to further or to the threats it seeks to mitigate” (cleaned up)).

The so-called motivational test, for its part, hardly merits

discussion. “Given the obvious restraints on the usefulness of

legislative history,” congressional intent to punish is difficult

to establish. Id. at 463 (cleaned up); see also BellSouth II,

162 F.3d at 690 (“Several isolated statements are not sufficient

to evince punitive intent” (cleaned up)). Indeed, the motiva-

tional test is not “determinative in the absence of unmistakable

evidence of punitive intent.” Id. (cleaned up). TikTok does not

come close to satisfying that requirement. We therefore con-

clude the Act does not violate the Bill of Attainder Clause

under any of the relevant tests.

E. The Takings Clause

TikTok claims the Act constitutes a per se regulatory

taking in violation of the Fifth Amendment because it will

render TikTok defunct in the United States. The Government

counters that TikTok has assets that can be sold, and that the

Act requires only divestiture, which need not be uncompen-

sated. Although the Act will certainly have a substantial effect

on the TikTok platform in the United States, regardless whether

TikTok divests, the Act does not qualify as a per se regulatory

taking.

The Supreme Court recognizes two situations in which

regulatory action constitutes a per se taking: (1) where the

government requires that an owner suffer a “physical invasion

of [its] property,” and (2) where a regulation “completely

deprives an owner of all economically beneficial use of [its]

property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538

(2005) (cleaned up); see Cedar Point Nursery v. Hassid,

594 U.S. 139, 153 (2021) (explaining the first category

includes temporary invasions of property). TikTok’s argument

is of the second variety, but it does not demonstrate the com-

plete deprivation such a claim requires.

Here the causal connection between the Act and the

alleged diminution of value is attenuated because the Act

authorizes a qualified divestiture before (or after) any prohibi-

tions take effect. That presents TikTok with a number of

possibilities short of total economic deprivation. ByteDance

might spin off its global TikTok business, for instance, or it

might sell a U.S. subset of the business to a qualified buyer.

TikTok dismisses divestiture as impractical. One of the

main impediments, however, appears to be export prohibitions

that the PRC erected to make a forced divestiture more difficult

if not impossible. But the PRC, not the divestiture offramp in

the Act, is the source of TikTok’s difficulty. TikTok would

have us turn the Takings Clause into a means by which a for-

eign adversary nation may render unconstitutional legislation

designed to counter the national security threats presented by

that very nation.

In any event, TikTok has not been subjected to a complete

deprivation of economic value. Beyond characterizing divesti-

ture as impossible, TikTok does not dispute that it has assets

that can be sold apart from the recommendation engine, includ-

ing its codebase; large user base, brand value, and goodwill;

and property owned by TikTok. In other words, TikTok has

several economically beneficial options notwithstanding the

PRC’s export restriction.

F. Alternative Relief

As an alternative to permanently enjoining the Act, the

petitioners suggest we issue a temporary injunction and appoint

a special master to make procedural recommendations or

recommend factual findings. Because we have now resolved

the case on the merits, we deny these requests as moot. The

petitioners further object to the Government having filed

classified material and releasing to them only a redacted ver-

sion. Our decision, however, rests solely on the unredacted,

public filings in this case. See China Telecom (Ams.) Corp.,

57 F.4th at 264 (similarly relying on an unclassified record).

Notwithstanding the significant effect the Act may have on the

viability of the TikTok platform, we conclude the Act is valid

based upon the public record.11

III. Conclusion

We recognize that this decision has significant implica-

tions for TikTok and its users. Unless TikTok executes a

qualified divestiture by January 19, 2025 — or the President

grants a 90-day extension based upon progress towards a

qualified divestiture, § 2(a)(3) — its platform will effectively

be unavailable in the United States, at least for a time.

Consequently, TikTok’s millions of users will need to find

alternative media of communication. That burden is attributa-

ble to the PRC’s hybrid commercial threat to U.S. national

security, not to the U.S. Government, which engaged with

TikTok through a multi-year process in an effort to find an

alternative solution.

The First Amendment exists to protect free speech in the

United States. Here the Government acted solely to protect that

freedom from a foreign adversary nation and to limit that

adversary’s ability to gather data on people in the United

States.

For these reasons the petitions are,

Denied.

Accordingly, we grant the Government’s motion for leave to file

classified materials and direct the Clerk to file the lodged materials,

though we do not rely on them in denying the petitions.

SRINIVASAN, Chief Judge, concurring in part and

concurring in the judgment:

I fully join all aspects of the court’s opinion today other

than Part II.B, which rejects TikTok’s First Amendment

challenge. As to that challenge, I agree with my colleagues that

the Act does not violate the First Amendment. But I reach that

conclusion via an alternate path. My colleagues do not decide

whether the Act should be subjected to the strictest First

Amendment scrutiny or instead the lesser standard of

intermediate scrutiny because, in their view, the Act satisfies

strict scrutiny regardless. I see no need to decide whether the

Act can survive strict scrutiny, because, in my view, the Act

need only satisfy intermediate scrutiny, which it does. I would

thus answer the question my colleagues leave open while

leaving open the question they answer.

Two features of the Act support applying intermediate

rather than strict scrutiny to resolve TikTok’s First Amendment

challenge. First, in step with longstanding restrictions on

foreign control of mass communications channels, the activity

centrally addressed by the Act’s divestment mandate is that of

a foreign nation rather than a domestic speaker—indeed, not

just a foreign nation but a designated foreign adversary.

Second, the Act mandates divestment of that foreign

adversary’s control over TikTok for reasons lying outside the

First Amendment’s heartland: one reason that is wholly

unrelated to speech, and another that, while connected to

speech, does not target communication of any specific

message, viewpoint, or content.

In those circumstances, the Act’s divestment mandate

need not be the least restrictive means of achieving its national-

security objectives, as strict scrutiny would require. Rather, it

is enough if, per intermediate scrutiny, the divestment mandate

is not substantially broader than necessary to meet those goals.

The Act meets that standard.

TikTok’s First Amendment challenge “implicates the

gravest and most delicate duty that courts are called on to

perform: invalidation of an Act of Congress.” Hodge v. Talkin,

799 F.3d 1145, 1157 (D.C. Cir. 2015) (formatting modified)

(quoting Blodgett v. Holden, 275 U.S. 142, 147–48 (1927)

(Holmes, J., concurring)). And that “most delicate duty”

presents itself here in a setting in which courts already proceed

with suitable caution—when called upon to review the political

branches’ judgments about national security. A strong

bipartisan majority of both Houses of Congress, together with

two successive Presidents (one of whom is also the President-

elect), have determined that divesting TikTok from PRC

control is a national-security imperative. See Op., ante, at pp.

11–16.

While that is the political branches’ across-the-board

assessment of a pressing national-security issue today, we also

take stock of history when considering whether their response

stays within the bounds of the First Amendment. An

established “history and tradition of regulation [is] relevant

when considering the scope of the First Amendment.” City of

Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 75

(2022) (citing Williams-Yulee v. Florida Bar, 575 U.S. 433,

446 (2015)); see Vidal v. Elster, 602 U.S. 286, 301 (2024). It

goes without saying that a social media app through which

some 170 million Americans absorb information and engage

with each other and the world—in the palm of their hands—is

a recent phenomenon. But concerns about the prospect of

foreign control over mass communications channels in the

United States are of age-old vintage. In that respect,

Congress’s decision to condition TikTok’s continued operation

in the United States on severing Chinese control is not a

historical outlier. Rather, it is in line with a historical pattern.

The first communications medium capable of reaching

mass audiences in real time—radio—was subject to restrictions

on foreign ownership and control from the very outset. The

Radio Act of 1912 required radio operators engaged in

interstate (or international) communications to obtain a license

from the Secretary of Commerce and Labor, but Congress

made licenses available only to U.S. citizens or companies.

Pub. L. No. 62-264, §§ 1–2, 37 Stat. 302, 302–03 (repealed

1927). Congress then extended the restrictions to encompass

foreign control (not just foreign ownership) in the Radio Act of

1927, prohibiting licensing of any company if it had a foreign

officer or director or if one-fifth of its capital stock was in

foreign hands. Pub. L. No. 69-632, § 12, 44 Stat. 1162, 1167

(repealed 1934).

Within a few years, the Communications Act of 1934, Pub.

L. No. 73-416, 48 Stat. 1064, shored up the restrictions on

foreign control. Section 310 of the law incorporated with little

change the 1927 Act’s foreign-control requirements, and also

gave the newly created Federal Communications Commission

(FCC) authority to withhold a license if a company is “directly

or indirectly controlled” by a foreign-dominated parent

company. Id. § 310(a), 48 Stat. at 1086 (emphasis added)

(today codified at 47 U.S.C. § 310(b)(4) (2024)). In urging

Congress to adopt the additional restrictions on foreign control,

the Navy conveyed its concerns that foreign-controlled stations

could “be employed in espionage work and in the

dissemination of subversive propaganda.” Hearings on H.R.

8301 Before the H. Comm. on Interstate & Foreign Com., 73d

Cong. 26 (1934). The FCC has described Section 310’s

original purpose as “protect[ing] the integrity of ship-to-shore

and governmental communications” from foreign interference

and “thwart[ing] the airing of foreign propaganda on broadcast

stations.” Foreign Investment in Broadcast Licenses, 78 Fed.

Reg. 75563, 75564 (Nov. 13, 2013).

Section 310 continues to restrict foreign control of radio

licenses, including ones used for broadcast communication and

wireless cellular services. See 47 U.S.C. § 310(a)–(b). And

while that provision regulates wireless licenses, limitations on

foreign control also exist for wired transmission lines under

Section 214 of the same law. 47 U.S.C. § 214(a); see also id.

§ 153(11), (50)–(53).

When deciding whether to issue or revoke a Section 214

authorization, the FCC considers “the public convenience and

necessity,” id. § 214(c), including the implications for

“national defense,” id. § 151. In conducting that inquiry, the

FCC assesses whether direct or indirect foreign ownership or

control of a transmission line raises national-security or

foreign-policy concerns. See Rules & Policies on Foreign

Participation in the U.S. Telecomm. Mkt., 12 FCC Rcd. 23891,

23918–21 (1997). The FCC consults with Executive Branch

agencies “to help assess national security and other concerns

that might arise from a carrier’s foreign ownership.” China

Telecom (Americas) Corp. v. FCC, 57 F.4th 256, 261 (D.C. Cir.

2022). Those “Executive Branch agencies may review existing

authorizations for national-security risks and recommend

revocation if the risks cannot be mitigated.” Id. at 262.

Notably, the FCC in recent years has exercised its Section

214 authority to deny or revoke transmission authorizations in

the case of U.S. entities subject to ultimate Chinese control.

The Commission’s rationale has mirrored Congress’s

motivation for the Act we consider in this case—i.e., national-

security concerns that the PRC could leverage its control over

foreign parent companies to require U.S. subsidiaries to

provide China with access to U.S. communications lines,

thereby enabling espionage and other harmful undertakings.

See Pac. Networks Corp. & ComNet (USA) LLC, 37 FCC Rcd.

4220 (2022); China Telecom (Americas) Corp., 36 FCC Rcd.

15966 (2021); China Mobile Int’l (USA), 34 FCC Rcd. 3361

(2019). This court has affirmed those FCC decisions. See Pac.

Networks Corp. v. FCC, 77 F.4th 1160 (D.C. Cir. 2023); China

Telecom, 57 F.4th 256.

China Telecom, for example, involved a U.S. company

with a Section 214 authorization whose parent corporation was

majority-owned by a Chinese governmental entity. See 57

F.4th at 260, 265. The FCC’s revocation of China Telecom’s

authorization was “grounded [in] its conclusion that China

Telecom poses an unacceptable security risk” because “the

Chinese government is able to exert significant influence over

[it].” Id. at 265. In rejecting China Telecom’s claim that the

asserted national-security risk was unduly speculative, we

noted that Chinese law obligates Chinese companies “to

cooperate with state-directed cybersecurity supervision and

inspection,” and we cited “compelling evidence that the

Chinese government may use Chinese information technology

firms as vectors of espionage and sabotage.” Id. at 265–66.

We additionally explained that “[i]n the national security

context,” the FCC “need not wait for a risk to materialize

before revoking a section 214 authorization.” Id. at 266.

China Telecom is a present-day application of the kinds of

restrictions on foreign control that have existed in the

communications arena since the dawn of radio. That

longstanding regulatory history bears on the First Amendment

analysis here. See City of Austin, 596 U.S. at 75. That is so

even though some of that history arose in the context of

broadcast, a medium in which the Supreme Court has

“recognized special justifications for regulation.” Reno v. Am.

Civ. Liberties Union, 521 U.S. 844, 868 (1997). Some of the

relevant history also arose outside of broadcast (e.g.,

authorizations for wired transmission lines under Section 214),

and certain regulatory concerns are present to a far greater

degree with modern communications media than with

traditional broadcast (e.g., the vastly enhanced potential for

collection of data from and about users).

To be sure, because communications media reaching mass

audiences in real time “were not present in the founding era,”

the regulatory history naturally does not date back that far. See

City of Austin, 596 U.S. at 75. But under the Supreme Court’s

decisions, regulatory history still matters so long as the relevant

kind of “regulation followed” on the heels of the emergence of

a new type of communication medium. Id. In fact, it can

matter for precisely the issue considered here: whether a First

Amendment challenge should be examined under strict or

intermediate scrutiny.

So, in City of Austin, the Supreme Court recently assessed

which of those standards should govern a challenge to a law

attaching different restrictions to off-premises and on-premises

signage. See id. at 67–69. The Court explained that

comparable regulations emerged relatively soon after outdoor

billboards first appeared in the 1800s. See id. at 65–66, 75. To

the Court, that “unbroken tradition of on-/off-premises

distinctions counsel[ed] against” subjecting the challenged law

to strict scrutiny. Id. at 75. If so there, so too here.

In City of Austin, the Supreme Court considered the

longstanding regulatory history as part of its inquiry into

whether the law in question should be deemed content based or

content neutral. See 596 U.S. at 69–76. That distinction in turn

informs the standard of scrutiny. Under hornbook First

Amendment doctrine, content-based laws generally pose more

pronounced First Amendment concerns and so usually must

satisfy strict scrutiny. See Reed v. Town of Gilbert, 576 U.S.

155, 163–64 (2015); cf. City of Austin, 596 U.S. at 73 (noting

that regulation of commercial speech has been subject to

intermediate scrutiny even when content based). Content-

neutral laws, on the other hand, present less substantial First

Amendment concerns and so generally trigger, at most,

intermediate scrutiny. See Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 642 (1994) (Turner I).

There can also be, though, an antecedent question:

whether the First Amendment applies at all. The question

arises here because the effect of the Act’s divestment mandate

falls most directly on foreign entities: the Act targets the PRC,

a foreign sovereign, and the divestment mechanism established

by Congress necessarily encompasses ByteDance, a foreign

company subject to the PRC’s control. That recognition brings

into play the settled understanding that “foreign organizations

operating abroad have no First Amendment rights.” Agency for

Int’l Dev. v. All. for Open Soc’y Int’l Inc., 591 U.S. 430, 436

(2020).

The Act requires TikTok to divest the corporate parent,

ByteDance, because ByteDance is subject to the PRC’s

control. ByteDance developed and maintains the source code

underlying TikTok’s recommendation engine, see Simkins

Decl. ¶¶ 52, 57, 90 (TikTok App. 738, 740, 751); Presser Decl.

¶¶ 63–64 (TikTok App. 832), so the company has the ability to

curate the content sent to TikTok users. That kind of curation

function, when the First Amendment applies, is protected

expressive activity. As the Supreme Court recently explained,

“presenting a curated compilation of speech originally created

by others” via a social media app is a form of

expression. Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2400

(2024); see id. at 2400–02. So, by forcing ByteDance to split

from TikTok, the Act abolishes the ability of ByteDance—and

ultimately the PRC, Congress’s true concern—to curate

content going to TikTok’s U.S. users.

To the extent the PRC or ByteDance might wish to adjust

the content viewed by U.S. users of TikTok, those curation

decisions would be made abroad. See Milch Decl. ¶ 29

(TikTok App. 661) (explaining that TikTok’s proposed

security measures contemplate “continued reliance on

ByteDance engineers for . . . its recommendation engine”).

The PRC and ByteDance thus would lack any First

Amendment rights in connection with any such curation

actions. Agency for Int’l Dev., 591 U.S. at 436. That is true

even though the PRC or ByteDance, in that scenario, would

aim their curation decisions at the United States. The Supreme

Court’s decision in Agency for International Development

demonstrates the point.

That case involved foreign organizations’ speech that was

targeted in part at the United States, yet the Court still applied

the rule that the foreign speakers lack any First Amendment

rights when engaged in expressive activity abroad. The federal

statute challenged in Agency for International Development

required organizations receiving certain U.S. aid dollars to

espouse a policy opposing prostitution. Id. at 432. The Court

first held that the compelled adoption of an anti-prostitution

viewpoint violated the First Amendment as applied to U.S.

funding recipients. See Agency for Int’l Dev. v. All. for Open

Soc’y Int’l Inc., 570 U.S. 205, 214 (2013). But the Court later

rejected a parallel challenge brought by foreign funding

recipients, reasoning that foreign organizations lack any First

Amendment rights in connection with their expressive

activities abroad. Agency for Int’l Dev., 591 U.S. at 433–36.

And that was so even though the relevant speech act—the

mandated expression of opposition to prostitution—was aimed

in part at the United States: in fact, the way the funding

recipients demonstrated adherence to the funding condition

was to express opposition to prostitution in the “award

documents” exchanged with the U.S. Agency for International

Development. See Agency for Int’l Dev, 570 U.S. at 210.

In short, while the Act’s divestment mandate directly

affects—and aims to eliminate—the ability of the PRC and

ByteDance to engage with U.S. users of a PRC-controlled

TikTok, it raises no First Amendment concerns vis-à-vis those

foreign actors.

Even if ByteDance and the PRC lack First Amendment

rights to assert against the Act’s divestment mandate, what

about the U.S.-based petitioners’ free-speech claims? The

principal U.S. petitioners are: (i) TikTok Inc., the U.S.

subsidiary of ByteDance that provides the TikTok platform in

the United States; and (ii) U.S. TikTok users, who are both

creators and viewers of TikTok content.

For TikTok Inc., the Act is designed to sever ByteDance

from the platform but leave untouched TikTok Inc.’s

expression on a post-divestment version of the app. TikTok

Inc. both creates and curates content on the platform, and the

Act does not restrict those speech and curation choices.

TikTok Inc. posts videos to its own TikTok account and would

remain fully free to continue doing so post-divestment. The

company can also engage in content moderation, including

through enforcement of community guidelines that excise

videos containing nudity, for instance. See Op., ante, at p. 27.

To the extent those choices are TikTok Inc.’s own, the

company could maintain the same editorial policies on a post-

divestment version of the app.

TikTok also claims that TikTok Inc.’s deployment of the

platform’s recommendation engine in the U.S. is itself an

expressive decision. Even assuming so, after divestment, a

non-Chinese-controlled TikTok could still use the same

algorithm to promote the same exact mix of content presently

appearing on the app. According to TikTok, however, Chinese

law would prevent the export of the algorithm fueling the

recommendation engine without the PRC’s approval, which it

would not grant. TikTok Br. 24. The Act, though, would not

dictate that outcome. Rather, the PRC, backed by Chinese law,

would. And Congress of course need not legislate around

another country’s preferences to exercise its own powers

constitutionally—much less the preferences of a designated

foreign adversary, the very adversary whom Congress

determined poses the fundamental threat to national security

prompting the Act in the first place.

The last group of petitioners bringing a First Amendment

claim are users who create and consume content on the TikTok

platform. They face the prospect of the app becoming

unavailable to them if a divestment does not occur within the

window allowed by Congress, or of an app potentially altered

in certain ways if a divestment were to take place.

A threshold question bearing significantly on the

assessment of their First Amendment challenge is which

standard of scrutiny should apply: strict or intermediate

scrutiny. The choice can be an important, potentially outcome-

determinative one, which is why the Supreme Court can devote

entire decisions to the issue. See, e.g., City of Austin, 596 U.S.

61. That choice here, as is often the case, turns in significant

measure on the rationale for the challenged law, which informs

whether the law is considered content based or content neutral.

As my colleagues explain, the Act’s divestment mandate

rests on two justifications, both of which concern the PRC’s

ability (through its control over ByteDance) to exploit the

TikTok platform in ways inimical to U.S. national security.

See Op., ante, at p. 33. First, the PRC could harvest abundant

amounts of information about the 170 million U.S. app users

and potentially even their contacts. Second, the PRC could

direct the TikTok platform to covertly manipulate the content

flowing to U.S. users. To the government, a foreign

adversary’s ability to acquire sensitive information on

Americans and secretly shape the content fed to Americans

would pose a substantial threat to U.S. national security.

Those dual interests are manifested in the terms of the Act,

in its central provisions establishing the divestment

requirement. The Act defines a “qualified divestiture” as one

that removes any ongoing relationship with the foreign

adversary-controlled entities with which the app was

previously affiliated, including in particular “any cooperation

with respect to the operation of a content recommendation

algorithm or an agreement with respect to data sharing.”

§ 2(g)(6)(B) (emphasis added). In the central operative

provision of the Act, then, Congress established that a

divestiture must satisfy the two national-security concerns

invoked by the government in this case: data protection and

content manipulation.

An examination of those interests, separately and in

combination, shows that the Act does not raise the kinds of core

free-speech concerns warranting the application of strict

scrutiny. Instead, intermediate scrutiny should apply.

The data-protection rationale is plainly content neutral,

supporting the application of intermediate rather than strict

scrutiny. There is no sense in which the data-protection interest

relates to the content of speech appearing on TikTok. In fact,

the interest does not relate to speech at all, raising the question

whether it would even trigger intermediate scrutiny if it stood

alone.

In Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), for

instance, the Supreme Court considered a First Amendment

challenge to the proposed closure of a bookstore because

prostitution took place there. The Court declined to apply even

intermediate scrutiny. The Court explained that, while the First

Amendment claim arose from the establishment’s engagement

in the protected activity of selling books, that activity had

nothing to do with the reasons for the proposed closure. See id.

at 705. The Court analogized the circumstances to ones in

which a “city impose[s] closure penalties for demonstrated Fire

Code violations or health hazards from inadequate sewage

treatment.” Id. In such a situation, “the First Amendment

would not aid the owner of premises who had knowingly

allowed such violations to persist.” Id.

Here, similarly, the data-protection rationale has nothing

to do with the expressive activity taking place on the TikTok

platform. Any enterprise collecting vast amounts of data from

users, whatever its line of business, could pose that sort of risk.

That is not to diminish the burdens on millions of U.S. users if

the TikTok platform were to become unavailable to them as a

forum for expressive activity. All of them could be faced with

needing to find an alternate venue. The same was true, though,

of the bookstore patrons in Arcara, yet the Court still denied

the First Amendment challenge to the bookstore’s closure

without even applying intermediate scrutiny.

To be sure, the Arcara Court observed that First

Amendment scrutiny would apply to a law that “inevitably

single[s] out bookstores or others engaged in First Amendment

protected activities for the imposition of its burden.” Id. Even

if that description has salience here—which is not at all clear—

the Court has explained that such a law may be “justified by

some special characteristic” of the regulated entities.

Minneapolis Star v. Minn. Comm’r of Rev., 460 U.S. 575, 585

(1983); Turner I, 512 U.S. at 660–61. The vast data-collection

practices of TikTok and similar applications subject to the Act

would seem to qualify as just such a “special characteristic.”

At any rate, there is no need to reach a firm conclusion on

whether the data-protection interest, if considered in isolation,

would trigger the application of intermediate scrutiny or

instead an even more relaxed form of review. That is because

the government makes no argument that the Act’s application

to TikTok should be sustained based on the data-protection

interest alone. It is necessary, then, to engage with the other

interest underpinning the Act, to which I turn next.

Congress’s interest in preventing the PRC’s use of TikTok

to engage in covert content manipulation is self-evidently

connected to speech: it centers on the potential reactions of

American viewers to covert content-curation decisions made

by the PRC. Still, that interest does not raise heartland First

Amendment concerns about content-based restrictions for

reasons I will explain—so much so that, even if that interest

were the sole rationale for the Act, there would still be a strong

argument for applying intermediate rather than strict scrutiny.

It is important to keep in mind, though, that Congress’s

covert-content-manipulation concern does not stand alone.

There is also its distinct data-protection interest that supports

applying (at most) intermediate scrutiny, along with the

consistent regulatory history of restricting foreign control of

mass communications channels that likewise weighs in favor

of intermediate scrutiny. So, the question ultimately is not

whether the covert-content-manipulation concern itself would

occasion applying strict scrutiny, but rather whether it so

strongly and clearly does that it overcomes the other important

considerations counseling against strict scrutiny. I believe it

does not.

First, even assuming the covert-content-manipulation

concern may bear the indicia of a content-based rationale, it

would do so only marginally. The Supreme Court has used

slightly varying formulations when describing what makes a

law content based, but this recent articulation captures the gist:

not just “any examination of speech or expression inherently”

makes a regulation content based; rather, “it is regulations that

discriminate based on ‘the topic discussed or the idea or

message expressed’ that are content based.” City of Austin, 596

U.S. at 73–74 (quoting Reed, 576 U.S. at 171); see Op., ante,

at p. 28.

Congress’s concern about the PRC’s capacity to conduct

covert content manipulation on the TikTok platform does not

“discriminate based on the topic discussed or the idea or

message expressed.” City of Austin, 596 U.S. at 73–74

(internal quotation marks omitted). Congress desires to

prevent the PRC’s secret curation of content flowing to U.S.

users regardless of the topic, idea, or message conveyed. See

Gov’t Br. 66–68. To be sure, Congress would have concerns

about the PRC covertly compelling ByteDance to flood the

feeds of American users with pro-China propaganda. But

Congress would also have concerns about the PRC sowing

discord in the United States by promoting videos—perhaps

even primarily truthful ones—about a hot-button issue having

nothing to do with China. Indeed, because the concern is with

the PRC’s manipulation of the app to advance China’s

interests—not China’s views—one can imagine situations in

which it would even serve the PRC’s interests to augment anti-

China, pro-U.S. content. Suppose, for instance, the PRC

determines that it is in its interest to stir an impression of

elevated anti-China sentiment coming from the United

States—say, to conjure a justification for actions China would

like to take against the United States. That would qualify as

covert content manipulation of the kind that concerned

Congress and supports the Act’s divestment mandate.

Congress’s concern with covert content manipulation by a

foreign adversary in any direction and on any topic—rather

than on particular messages, subjects, or views—is evident in

the Act’s terms and design. See City of Renton v. Playtime

Theaters, Inc., 475 U.S. 41, 48 (1986); Turner I, 512 U.S. at

646–49, 652. Recall that the Act asks whether there is the

prospect of “any cooperation” with an entity controlled by a

foreign adversary “with respect to the operation of a content

recommendation algorithm.” § 2(g)(6)(B). The concern is a

general one about control of a “content recommendation

algorithm,” without regard to whether the content choices

enabled by that control might point in a specific direction or

involve a specific matter.

As is reflected in the title of the Act—“Protecting

Americans From Foreign Adversary Controlled Applications

Act”—Congress aimed not to address specific content but to

address specific actors: in particular, to prevent a “foreign

adversary” from exercising control over covered applications.

In that sense, the law operates in the nature of a speaker-based

restriction. As applied here, what matters is whether a

particular potential curator, the PRC, has the ability to control

(covertly) the content fed to TikTok’s U.S. users, regardless of

what the content may be. True, “laws favoring some speakers

over others demand strict scrutiny” when the “speaker

preference reflects a content preference.” Reed, 576 U.S. at

171 (quoting Turner I, 512 U.S. at 658). But here, the speaker

(non)preference is not grounded in a content preference.

In certain respects, in fact, the Act resembles a time, place,

or manner regulation—a type of regulation generally subject to

intermediate scrutiny. Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 293 (1984); Ward v. Rock Against

Racism, 491 U.S. 781, 791, 798–99 (1989). The Act restricts

only one way in which the Chinese government can project

information into the United States—the covert manipulation of

content on TikTok. The Act does not touch on the PRC’s

ability to communicate through any medium other than TikTok

(and potentially other “covered” applications, see

§ 2(g)(2)(A)). Indeed, as far as the Act is concerned, the PRC

would be free to publish its own videos—whether labeled as

such or camouflaged as cutout accounts—on a post-divestment

version of TikTok itself. So understood, the Act does not

prevent Americans from receiving any message from the PRC;

it only prevents the PRC from secretly manipulating the

content on a specific channel of communication that it

ultimately controls.

Those circumstances are far removed from Lamont v.

Postmaster General, 381 U.S. 301 (1965), on which petitioners

heavily rely. Lamont concerned a law requiring anyone in the

United States who desired to receive mail deemed by the

Secretary of the Treasury to be “communist political

propaganda” to affirmatively notify the Postal Service. Id. at

302–03. The Supreme Court invalidated the statute, resting its

decision “on the narrow ground that the addressee in order to

receive his mail must request in writing that it be delivered.”

Id. at 307. That obligation amounted to “an unconstitutional

abridgement of the addressee’s First Amendment rights,”

because “any addressee is likely to feel some inhibition in

sending for literature which federal officials have condemned

as ‘communist political propaganda.’” Id.

This case does not involve the “narrow ground” on which

the Court rooted its decision in Lamont: an affirmative

obligation to out oneself to the government in order to receive

communications from a foreign country that are otherwise

permitted to be here. Moreover, whereas this case, as

explained, addresses what amounts to a speaker-based

regulation without a content preference underpinning it, the

law in Lamont drew a viewpoint-based distinction based on

whether the government deemed mailed material “communist

political propaganda.” Finally, Lamont was not a case about

covert content manipulation, the concern driving the Act’s

divestment mandate. In that regard, while counterspeech is an

available response in the case of a publication designated as

“communist political propaganda,” counterspeech is elusive in

response to covert (and thus presumably undetected)

manipulation of a social media platform.

* * *

For all those reasons, Congress’s concern with the PRC’s

potential exercise of covert content manipulation should not

give rise to strict scrutiny. That concern does not bear the

hallmarks of a content-based rationale; the Act’s other

justification concerning data protection is plainly a content-

neutral one; and there has been a long regulatory history of

restrictions on foreign control of mass communications

channels.

To satisfy intermediate scrutiny, a law needs to meet two

requirements: (i) the law must further “important” (or

“substantial” or “legitimate”) governmental interests; and (ii)

the means must be narrowly tailored to serve those interests.

See Turner I, 512 U.S. at 661–62; Ward, 491 U.S. at 791, 796,

798–99. Under strict scrutiny, by comparison: (i) the

governmental interests must be “compelling”; and (ii) the

means must be the least-restrictive way of serving them. E.g.,

McCullen v. Coakley, 573 U.S. 464, 478 (2014). As to the

second prong, the Supreme Court has explained that the

“narrow tailoring” test under intermediate scrutiny requires

less than the least-restrictive-means test under strict scrutiny,

with the former met “[s]o long as the means chosen are not

substantially broader than necessary to achieve the

government’s interest.” Ward, 491 U.S. at 800.

Here, the Act satisfies both prongs of the intermediate

scrutiny test.

Recall that, as manifested in the Act’s terms and design,

see § 2(g)(6)(B), Congress mandated TikTok’s divestment in

order to prevent the PRC from capturing the personal data of

millions of Americans and surreptitiously manipulating the

content the app serves them. Each of those objectives qualifies

as an important governmental interest.

The data-protection interest aims to protect U.S. national

security by depriving the PRC of access to a vast dataset of

granular information on 170 million Americans. Congress’s

interest is important and well grounded.

As TikTok does not dispute, the platform collects vast

amounts of information from and about its American users.

See TikTok App. 820; Privacy Policy, TikTok (Aug. 28, 2024),

https://perma.cc/XE6G-F86Q. The government’s national-

security concerns about the PRC’s access to that data take two

forms. First, the PRC could exploit sensitive data on individual

Americans to undermine U.S. interests, including by recruiting

assets, identifying Americans involved in intelligence, and

pressuring and blackmailing our citizens to assist China.

Second, the vast information about Americans collected by

TikTok amounts to the type of “bulk” dataset that could

“greatly enhance” China’s development and use of “artificial

intelligence capabilities.” Vorndran Decl. ¶ 32 (Gov’t App.

37).

Those national-security concerns self-evidently qualify as

important. To be sure, the fears must be “real, not merely

conjectural.” Turner I, 512 U.S. at 664. And petitioners submit

that the government’s concerns about the PRC accessing user

data from the TikTok platform are unduly speculative and

insufficiently grounded. I cannot agree.

When applying intermediate scrutiny, a court “must

accord substantial deference to the predictive judgments of

Congress,” and “[o]ur sole obligation is to assure that, in

formulating its judgments, Congress has drawn reasonable

inferences based on substantial evidence.” Turner Broad. Sys.,

Inc. v. FCC, 520 U.S. 180, 195 (1997) (Turner II) (internal

quotation marks omitted). That bar is cleared here.

In evaluating whether Congress’s national-security

concerns are adequately grounded, we can take stock of the

Executive Branch’s elaborations as submitted in declarations.

See Humanitarian Law Project, 561 U.S. at 33. As my

colleagues set out, Op., ante, at pp. 34–36, and as the

government explains, Congress’s data-security concern arises

against a backdrop of broadscale “overt and covert actions” by

the PRC “to undermine U.S. interests,” Blackburn Decl. ¶ 23

(Gov’t App. 8). Collecting data on Americans is a key part of

that multi-faceted strategy. See id. ¶¶ 31–33 (Gov’t App. 10–

11). The PRC has engaged in extensive efforts to amass data

on Americans for potential use against U.S. interests. Id. ¶ 31

(Gov’t App. 10–11). And the PRC “is rapidly expanding and

improving its artificial intelligence and data analytics

capabilities for intelligence purposes,” enabling it to exploit

access to large datasets in increasingly concerning ways. Id.

¶ 30 (Gov’t App. 10).

“ByteDance and TikTok present powerful platforms” for

those purposes. Id. ¶ 36 (Gov’t App. 13). It is a modus

operandi of the PRC to surreptitiously access data through its

control over companies like ByteDance. While the PRC has

sometimes obtained data through aggressive hacking

operations, it also attempts to do so by “leverag[ing] access

through its relationships with Chinese companies.” Id. ¶ 33

(Gov’t App. 11). Even if the PRC has yet to discernibly act on

its potential control over ByteDance’s access to data on

American users in particular, Congress did not need to wait for

the risk to become realized and the damage to be done before

taking action to avert it. See Humanitarian Law Project, 561

U.S. at 34–35; China Telecom, 57 F.4th at 266–67. That is

particularly so in light of the PRC’s broader, long-term

geopolitical strategy of pre-positioning assets for potential use

against U.S. interests at pivotal moments. See Vorndran Decl.

¶ 12 (Gov’t App. 34); Blackburn Decl. ¶ 26 (Gov’t App. 9).

In these circumstances, in short, Congress’s data-

protection concern is hardly speculative or inadequately

grounded in this murky corner of national security.

The same is true of Congress’s concern about the PRC’s

covert content manipulation. Our duty to accord deference to

Congress’s determinations when applying intermediate

scrutiny, Turner II, 520 U.S. at 195, is all the more important

in the area of national security. Like its data-protection

concern, Congress’s content-manipulation concern “arise[s] in

connection with efforts to confront evolving threats in an area

where information can be difficult to obtain and the impact of

certain conduct difficult to assess.” Humanitarian Law

Project, 561 U.S. at 34. In matters of national security,

Congress must often rely on its—and the Executive Branch’s—

“informed judgment rather than concrete evidence.” Id. at 34–

35. And “[t]hat reality affects what we may reasonably insist

on from the Government.” Id. at 35. The government’s

“evaluation of the facts” is “entitled to deference.” Id. at

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