Amicus Curiae Brief — TikTok Inc., et al., Petitioners v. Merrick B. Garland, Attorney General

Supreme Court briefDec 27, 2024

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Nos. 24-656, 24-657

IN THE

Supreme Court of the United States

TIKTOK, INC., ET AL.,

Petitioners,

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

BRIAN FIREBAUGH, ET AL.,

Petitioners,

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE CHAIRMAN OF THE SELECT

COMMITTEE ON THE CCP JOHN R. MOOLENAAR AND

RANKING MEMBER RAJA KRISHNAMOORTHI

IN SUPPORT OF RESPONDENT

THOMAS M. JOHNSON, JR.

Counsel of Record

JEREMY J. BROGGI

JOEL S. NOLETTE

DANIEL T. PARK

WILEY REIN LLP

2050 M Street N.W.

Washington, D.C. 20036

tmjohnson@wiley.law

(202) 719-7000

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................4

THE CONSTITUTION VESTS CONGRESS WITH

AUTHORITY TO PROTECT AMERICANS FROM

FOREIGN NATIONAL SECURITY THREATS. ...........4

II.

CONGRESS APPROPRIATELY EXERCISED ITS

CONSTITUTIONAL AUTHORITY BY ENACTING THE

DIVESTITURE ACT. ..............................................7

III.

Congress Identified Specific Threats

From Foreign Adversaries, Including

China. ......................................................7

Congress Chose To Respond To Those

Threats Through Tailored Means That

Regulate More Narrowly Than Other

Foreign Ownership Statutes. ...............16

PETITIONERS’ FIRST AMENDMENT OBJECTIONS

ARE MERITLESS. ...............................................20

CONCLUSION ..........................................................25

- ii -

TABLE OF AUTHORITIES

Page(s)

Cases

Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, Inc.,

591 U.S. 430 (2020) ................................. 3, 20, 24

Am. Soc’y of Ass’n Execs. v. United States,

195 F.3d 47 (D.C. Cir. 1999) ............................. 23

Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986) ........................................... 22

Bank Markazi v. Peterson,

578 U.S. 212 (2016) ............................................. 6

Bartlett v. Lockwood,

160 U.S. 357 (1896) ............................................. 5

Batterton v. Marshall,

648 F.2d 694 (D.C. Cir. 1980) ............................. 7

Bd. of Trs. of Univ. of Ill. v. United States,

289 U.S. 48 (1933) ............................................... 5

Benz v. Compania Naviera Hidalgo, S.A.,

353 U.S. 138 (1957) ............................................. 6

Buttfield v. Stranahan,

192 U.S. 470 (1904) ............................................. 4

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ........................................... 24

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) ............................................. 6

- iii -

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010)................................................. 6

Huawei Techs. USA, Inc. v. United States,

440 F. Supp. 3d 607 (E.D. Tex. 2020) .............. 20

INS v. Chadha,

462 U.S. 919 (1983) ............................................. 7

Int’l Franchise Ass’n v. City of Seattle,

803 F.3d 389 (9th Cir. 2015)............................. 22

Islamic Am. Relief Agency v. Gonzales,

477 F.3d 728 (D.C. Cir. 2007) ............................. 6

Kaspersky Lab, Inc. v. U.S. Dep’t of

Homeland Sec.,

909 F.3d 446 (D.C. Cir. 2018) ............................. 9

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................ 4

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024)....................................... 21

Moving Phones P’ship L.P. v. FCC,

998 F.2d 1051 (D.C. Cir. 1993) ......................... 18

Regan v. Wald,

468 U.S. 222 (1984) ............................................. 6

SEC v. Jarkesy,

144 S. Ct. 2117 (2024)......................................... 5

Simpson v. Shepard,

230 U.S. 352 (1913) ............................................. 5

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ........................................... 21

- iv -

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ........................................... 12

Univ. of Penn. v. EEOC,

493 U.S. 182 (1990) ........................................... 23

Wine & Spirits Retailers, Inc. v. Rhode

Island,

418 F.3d 36 (1st Cir. 2005) ............................... 22

Wisconsin v. Mitchell,

508 U.S. 476 (1993) ........................................... 22

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ......................................... 4, 7

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ....................................... 4

Statutes

47 U.S.C. § 310 ....................................................... 17

Consolidated Appropriations Act, 2023,

Pub. L. No. 117-328, 136 Stat. 4459

(2022) ................................................................. 11

Counter-Espionage Law of 2023............................ 13

Data Security Law of 2021 .................................... 13

Foreign Investment and National Security

Act of 2007, Pub. L. No. 110-49, 121

Stat. 246 ............................................................ 18

John S. McCain NDAA for Fiscal Year

2019, Pub. L. No. 115-232, 132 Stat.

1636 (2018) .................................................... 8, 19

-v-

National Defense Authorization Act for

Fiscal Year 2000, Pub. L. No. 106-65,

113 Stat. 512 (1999) ............................................ 8

National Intelligence Law of 2017 ........................ 13

NDAA for Fiscal Year 2008, Pub. L. No.

110-181, 122 Stat. 3 ............................................ 8

NDAA for Fiscal Year 2013, Pub. L. No.

112-239, 126 Stat. 1632 ...................................... 8

NDAA for Fiscal Year 2020, Pub. L. No.

116-92, 133 Stat. 1198 (2019) ............................. 8

Omnibus Trade and Competitiveness Act of

1988, Pub. L. No. 100-418, 102 Stat.

1107 ................................................................... 18

Protecting Americans’ Data from Foreign

Adversaries Act of 2024, Pub. L. No.

118-50, 138 Stat. 895 ........................................ 16

Protecting Americans from Foreign

Adversary Controlled Applications Act,

Pub. L. No. 118-50,

138 Stat. 895 (2024) ...................1, 3, 7, 16–18, 22

Secure and Trusted Communications

Networks Act of 2019, Pub. L. No. 116124, 134 Stat. 158 (2020) .................................. 19

Secure Equipment Act of 2021, Pub. L. No.

117-55, 135 Stat. 423 ........................................ 19

William M. (Mac) Thornberry NDAA for

Fiscal Year 2021, Pub. L. No. 116-283,

134 Stat. 3388 ..................................................... 8

- vi -

Treatises

1 Laurence H. Tribe, American

Constitutional Law (3d ed. 2000) ....................... 5

1 Ronald D. Rotunda & John E. Nowak,

Treatise on Constitutional Law—

Substance & Procedure, Westlaw

(updated July 2024) ............................................ 5

Other Materials

15 C.F.R. § 791.4(a) .................................................. 8

Echo Wang, China’s Kunlun Tech Agrees to

U.S. Demand to Sell Grindr Gay Dating

App, Reuters (May 13, 2019) ............................ 18

Full Committee Hearing on TikTok: How

Congress Can Safeguard American Data

Privacy and Protect Children from

Online Harms Before the House Energy

& Com. Comm., 118th Cong. (2023) .......... 11, 23

H.R. Rep. No. 118-417 (2024) ...............10, 12, 14–15

H.R. Res. 11, 118th Cong. (2023)........................... 10

H.R. Res. 1051, 118th Cong. (2024) ........... 10, 12–15

Hearing on the CCP Cyber Threat to the

American Homeland and National

Security Before the Select Comm. on the

CCP, 118th Cong. (2024) ............................ 11–12

Hearing on CCP Transnational Repression:

The Party’s Effort to Silence and Coerce

Critics Overseas Before the Select Comm.

on the CCP, 118th Cong. (2023) ....................... 11

- vii -

Hearing on the Chinese Communist Party’s

Threat to America Before the Select

Comm. on the CCP, 118th Cong. (2023)........... 10

Hearing on Commanding Heights:

Ensuring U.S. Leadership in the Critical

and Emerging Technologies of the 21st

Century Before the Select Comm. on the

CCP, 118th Cong. (2023) .................................. 10

Hearing on Risky Business: Growing Peril

for American Companies in China Before

the Select Comm. on the CCP, 118th

Cong. (2023) ...................................................... 10

Hearing on Worldwide Threats Before the

Senate Select Comm. on Intel., 118th

Cong. (2024) ...................................................... 11

Katja Drinhausen & Helena Legarda,

“Comprehensive National Security”

Unleashed: How Xi’s Approach Shapes

China’s Policies at Home and Abroad,

Mercator Institute for China Studies

(Sept. 15, 2022) ................................................. 14

Letter of Sens. Schumer and Cotton to

Acting Dir. Nat’l Intel. (Oct. 23, 2019) ............... 9

Michael Ramsey, The Constitution’s Text in

Foreign Affairs (2007) ......................................... 5

Off. of the Dir. of Nat’l Intel., Annual

Threat Assessment of the U.S.

Intelligence Community (Feb. 6, 2023) .............. 9

- viii -

Rubio, Warner Call for Investigation into

TikTok After Chinese Communist Party’s

Access to U.S. Data Comes to Light (July

6, 2022) .............................................................. 15

Sebastian Rotella, Even on U.S. Campuses,

China Cracks Down on Students Who

Speak Out, ProPublica (Nov. 30, 2021) ............ 14

TikTok: Technology Overview and Issues,

Cong. Rsch. Serv. (updated June 30,

2023) .................................................................... 9

U.S. Dep’t of Just., Justice Manual

(updated Nov. 2022)............................................ 9

INTEREST OF AMICI CURIAE1

Amici Curiae Chairman of the Select Committee

on the Strategic Competition Between the United

States and the Chinese Communist Party John R.

Moolenaar and Ranking Member Raja Krishnamoorthi are Members of the United States House of

Representatives who seek to protect all Americans

from foreign adversary controlled applications that

present a clear national security threat to the United

States.2

Earlier this year, wide bipartisan majorities in

Congress enacted and President Biden signed the

Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, Div. H,

138 Stat. 895, 955–60 (2024) (“Divestiture Act”) (and

a near-identical precursor to this law was introduced

by the bipartisan leaders of the Select Committee on

the CCP, unanimously reported out of the House Energy and Commerce Committee with a 50-0 vote, and

passed the House by a vote of 352-65-1). Contrary to

1 No counsel for a party authored this brief in whole or in part,

and no person or entity other than Amici Curiae or their counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2 In the D.C. Circuit, a bipartisan, bicameral coalition of fifty-

five additional Members of Congress signed onto a similar amicus brief filed by Amici Curiae in support of the Divestiture Act,

including Senate Select Committee on Intelligence Vice Chairman Marco Rubio, House Energy and Commerce Committee

Chair Cathy McMorris Rodgers, House Energy and Commerce

Committee Ranking Member Frank Pallone, House Majority

Leader Steve Scalise, and House Speaker Emerita Nancy Pelosi.

But because of time constraints, Amici Curiae were unable to resolicit other Members to invite them to join this brief.

the claims of Petitioners in these cases, the Divestiture Act does not regulate speech or require any social-media company to stop operating in the United

States. The Divestiture Act is instead focused entirely on the regulation of foreign adversary control

and provides a clear, achievable path for affected companies to resolve the pressing and non-hypothetical

national security threats posed by their current ownership structures. As the Court of Appeals explained,

the Divestiture Act embodies 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.”

App. 32a, TikTok, Inc. v. Garland, No. 24-656 (U.S.

Dec. 16, 2024) (“App.”). Because the Constitution invests the political branches and especially Congress

with responsibility and authority to protect the American people from foreign threats, Amici Curiae have a

strong interest in supporting the Divestiture Act.

SUMMARY OF ARGUMENT

In the Divestiture Act, Congress determined that

foreign adversary controlled applications that present

a clear and significant national security threat should

not be permitted to access application stores or web

hosting services in the United States. To stop foreign

adversaries from targeting, surveilling, and conducting covert repression campaigns against the American people through social media and related applications, the Divestiture Act requires companies controlled by the Democratic People’s Republic of North

Korea, the People’s Republic of China (“PRC”), the

Russian Federation, and the Islamic Republic of Iran

to divest themselves of that control or face restrictions

in the United States. Divestiture Act §§ 2(a), 2(c); see

id. § 2(g)(4) (citing 10 U.S.C. § 4872(d)(2)).

In enacting the Divestiture Act, Congress exercised the authorities and responsibilities vested in it

by Article I of the Constitution of the United States.

Backed by extensive factfinding about the national security threat to the American people posed by certain

foreign adversary controlled applications, the Divestiture Act resembles and, indeed, is narrower than numerous other restrictions on foreign ownership that

Congress has enacted in other statutory regimes.

Congress did not transcend the limits imposed by the

First Amendment because “it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under

the U.S. Constitution,” Agency for Int’l Dev. v. All. for

Open Soc’y Int’l, Inc., 591 U.S. 430, 433 (2020), and

because the Divestiture Act regulates business conduct not speech. As the Court of Appeals rightly recognized, the Divestiture Act “actually vindicates the

values that undergird the First Amendment” by preventing a foreign adversary from “distort[ing] free

speech.” App. 43a; see id. 65a (“[T]he Government

acted solely to protect th[e] freedom [of speech] from

a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United

States.”).

Because the Divestiture Act is constitutional, the

Court should affirm.

ARGUMENT

I. THE CONSTITUTION VESTS CONGRESS WITH

AUTHORITY TO PROTECT AMERICANS FROM

FOREIGN NATIONAL SECURITY THREATS.

The Constitution establishes Congress as the Nation’s lawmaker. The first clause of Article I provides

that “All legislative Powers” are “vested in a Congress

of the United States, which shall consist of a Senate

and House of Representatives.” As the Constitution

makes clear, “[t]he Founders of this Nation entrusted

the law making power to the Congress alone.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 589 (1952).

Congress may legislate pursuant to its constitutional powers with any purpose not constitutionally

prohibited. See McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 421 (1819) (“Let the end be legitimate,

let it be within the scope of the constitution, and all

means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but

consist with the letter and spirit of the constitution,

are constitutional.”). And Congress’s lawmaking

power includes authority to regulate both foreign and

interstate commerce.

With respect to foreign commerce, the Foreign

Commerce Clause grants Congress authority to “regulate Commerce with foreign nations.” U.S. Const.

art. I, § 8, cl. 3. This authority has many applications

reflecting Congress’s power to protect national security. “[F]rom the beginning[,] Congress has exercised

a plenary power in respect to the exclusion of merchandise brought from foreign countries.” Buttfield v.

Stranahan, 192 U.S. 470, 492 (1904); see also SEC v.

Jarkesy, 144 S. Ct. 2117, 2132 (2024) (noting how, in

Buttfield, the Court held that “Congress’s power over

foreign commerce . . . was so total that no party had a

‘vested right’ to import anything into the country”).

Congress can “establish quarantine regulations, and

to protect the country as respects its commerce from

contagious and infectious diseases.” See Bartlett v.

Lockwood, 160 U.S. 357, 361 (1896); accord Simpson

v. Shepard, 230 U.S. 352, 406 (1913). And Congress

may “pass embargo and non-intercourse laws.” Bd. of

Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 58

(1933) (internal quotation marks omitted); see also 1

Ronald D. Rotunda & John E. Nowak, Treatise on

Constitutional Law—Substance & Procedure § 4.2(a),

Westlaw (updated July 2024) (“The Constitution as

originally framed seems . . . to recognize a virtually

unlimited power of Congress over commerce with foreign nations.”).

The Divestiture Act is also a routine exercise of

Congress’s interstate commerce power. To be sure,

the law relates to national security and foreign affairs. But because it regulates domestic activity, it

stands at the core of Congress’s lawmaking power.

See Michael Ramsey, The Constitution’s Text in Foreign Affairs 6 (2007) (“[A]ltering rights and duties

within the domestic legal system, even in pursuit of

foreign affairs objectives, . . . is a ‘legislative’ (lawmaking) function, not an executive one.”). As “[f]ully

eleven of the powers that Article I, § 8 grants Congress deal in some way with foreign affairs,” 1 Laurence H. Tribe, American Constitutional Law § 5-18

(3d ed. 2000), Congress is on especially strong footing

here.

Because “Congress . . . has the facilities necessary

to make fairly” the “important policy decision[s]” in

the “delicate field of international relations,” Benz v.

Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147

(1957), judicial review in this area is, as a rule, “extremely deferential.” Islamic Am. Relief Agency v.

Gonzales, 477 F.3d 728, 734 (D.C. Cir. 2007). Time

and again, this Court has acknowledged and respected the “controlling role of the political branches”

in the face of “an exercise of congressional authority

regarding foreign affairs.” Bank Markazi v. Peterson,

578 U.S. 212, 234 (2016); see also Regan v. Wald, 468

U.S. 222, 242 (1984) (explaining the Court’s “classical

deference to the political branches in matters of foreign policy”); Harisiades v. Shaughnessy, 342 U.S.

580, 589 (1952) (recognizing that matters related to

the “conduct of foreign relations . . . . are so exclusively

entrusted to the political branches of government as

to be largely immune from judicial inquiry or interference”). Per the Framers’ design, the “sensitive and

weighty interests of national security and foreign affairs” should be addressed by Congress, and courts

are “not to substitute . . . [their] own evaluation of evidence for a reasonable evaluation by the Legislative

Branch.” Holder v. Humanitarian Law Project, 561

U.S. 1, 33–34 (2010) (collecting authorities).

For these reasons, TikTok Petitioners err in suggesting that Congress is not qualified to make its own

judgment about the national security threat posed by

the PRC’s control of those companies and must instead provide those companies with the process it supplied to other entities, including judicial review of factual findings made by the executive branch. See

Emergency Appl. for Inj. Pending S. Ct. Rev. at 3–4,

10–11, 21, 31–32, TikTok Inc. v. Garland, No. 24A587

(U.S. Dec. 16, 2024) (“Emergency Appl.”). But executive processes are at most a second-best option,

adopted to “reintroduce public participation and fairness to affected parties after governmental authority

ha[d] been delegated to unrepresentative agencies.”

See Batterton v. Marshall, 648 F.2d 694, 703 (D.C.

Cir. 1980). Congress represents the people, answers

to the people, and is constitutionally empowered to establish and delimit executive discretion in the realm

of foreign commerce. See Youngstown, 343 U.S. at

585. The “single, finely wrought and exhaustively

considered, procedure” set forth in Article I, INS v.

Chadha, 462 U.S. 919, 951 (1983), is constitutionally

adequate.

II. CONGRESS APPROPRIATELY EXERCISED ITS CONSTITUTIONAL AUTHORITY BY ENACTING THE DIVESTITURE ACT.

The Divestiture Act is backed by extensive legislative factfinding demonstrating that foreign adversary

nations seek to exploit applications including social

media to target, surveil, and conduct other covert activities (including transnational repression) against

the American people. The Divestiture Act resembles,

but is narrower than, similar foreign ownership regulations that have been on the books for decades and

upheld by the courts.

A. Congress Identified Specific Threats

From Foreign Adversaries, Including

China.

The Divestiture Act targets specific safety and national security threats posed by foreign adversary nations, including the PRC. See Divestiture Act § 2(g)(4)

(citing 10 U.S.C. § 4872(d)(2)); accord 15 C.F.R.

§ 791.4(a) (recognizing that these countries “have engaged in a long-term pattern or serious instances of

conduct significantly adverse to the national security

of the United States or security and safety of United

States persons”). It is the product of extensive legislative factfinding going back decades.

For instance, since 1999, Congress has required

the Secretary of Defense to submit to it an annual report on PRC strategy. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65,

§ 1202(a)–(b), 113 Stat. 512, 781–82 (1999). Over the

years, the content Congress required the Secretary of

Defense to cover in that report has ballooned to include many specifics about the PRC’s cyber strategy

and malicious actions via digital media. See, e.g.,

NDAA for Fiscal Year 2008, Pub. L. No. 110-181,

§ 1263, 122 Stat. 3, 407; NDAA for Fiscal Year 2013,

Pub. L. No. 112-239, § 1271, 126 Stat. 1632, 2022;

John S. McCain NDAA for Fiscal Year 2019, Pub. L.

No. 115-232, § 1260, 132 Stat. 1636, 2059 (2018);

NDAA for Fiscal Year 2020, Pub. L. No. 116-92,

§ 1260, 133 Stat. 1198, 1677–78 (2019). And Congress

has required the President to report on the PRC’s “use

of intelligence networks to exploit open research and

development” and “[m]alicious cyber activities,”

NDAA for Fiscal Year 2019 § 1261, as well as efforts

to “deter industrial espionage and large-scale cyber

theft of intellectual property and personal information” by the PRC, William M. (Mac) Thornberry

NDAA for Fiscal Year 2021, Pub. L. No. 116-283,

§ 1260F, 134 Stat. 3388, 3963–64.

Congress has long understood how internet-based

applications can be a vector exploited by foreign adversaries to compromise Americans’ devices and to

surveil, covertly influence, and repress. See generally,

e.g., Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland

Sec., 909 F.3d 446 (D.C. Cir. 2018) (discussing the ban

Congress imposed on Kaspersky Lab’s cybersecurity

software in the NDAA for Fiscal Year 2018). And it

has been advised repeatedly about the threats posed

by the PRC’s “cyber espionage operations.” See Off. of

the Dir. of Nat’l Intel., Annual Threat Assessment of

the U.S. Intelligence Community 10 (Feb. 6, 2023),

https://tinyurl.com/5n6r6k68. Moreover, Congress

understood that foreign adversary controlled applications present espionage and counter-intelligence risks

that cannot be remedied through less restrictive

means, such as traditional counter-intelligence mechanisms like defensive briefings. See U.S. Dep’t of

Just., Justice Manual § 9-90.730 (updated Nov. 2022).

All this legislative factfinding enabled Congress

to assess the national security risk posed by foreign

adversary controlled applications generally, as well

as the connection between the PRC and ByteDance

(the owner of the TikTok social-media application) in

this instance. In its current form, TikTok began operations in the United States in August 2018. See

TikTok: Technology Overview and Issues, Cong. Rsch.

Serv. (updated June 30, 2023), https://tinyurl.com/mvejaz84. More or less immediately, legislators began investigating the “national security

risks” it posed. See Letter of Sens. Schumer and Cotton to Acting Dir. Nat’l Intel. (Oct. 23, 2019),

https://tinyurl.com/2t7bfwz7; cf. App. 11a–12a (recounting the executive branch’s similarly swift response). Subsequently, recognizing the threat posed

by the CCP more generally, a wide and bipartisan majority of the House of Representatives (365-65) voted

to establish the Select Committee on the CCP, to investigate and make policy recommendations to address that threat. See H.R. Res. 11, 118th Cong.

(2023).

The Select Committee on the CCP and the Senate

Select Committee on Intelligence have held numerous

classified briefings and open hearings on the threat

posed by the CCP generally as well as through TikTok

specifically. See Am. Public Redacted Br. for Resp’t at

2, 11, TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir.

July 30, 2024); see also H.R. Rep. No. 118-417, at 10–

11 (2024); H.R. Res. 1051, 118th Cong. (2024).

For instance, the Select Committee on the CCP

heard about the CCP’s grand strategy and the threats

it poses to America generally. See Hearing on the Chinese Communist Party’s Threat to America Before the

Select Comm. on the CCP, 118th Cong. (2023),

https://tinyurl.com/4p94n5jj. Numerous national-security-and-technology experts testified about the

PRC’s technology ambitions. See Hearing on Commanding Heights: Ensuring U.S. Leadership in the

Critical and Emerging Technologies of the 21st Century Before the Select Comm. on the CCP, 118th Cong.

(2023), https://tinyurl.com/4rfkpruy. Witnesses testified about the PRC’s laws and practices requiring

nominally private enterprises to engage in clandestine cooperation with PRC authorities. See Hearing

on Risky Business: Growing Peril for American Companies in China Before the Select Comm. on the CCP,

118th Cong. (2023), https://tinyurl.com/49f72hvd.

Government cybersecurity officials testified about

cyber threats the CCP poses to the United States. See

Hearing on the CCP Cyber Threat to the American

Homeland and National Security Before the Select

Comm. on the CCP, 118th Cong. (2024), https://tinyurl.com/448fh89a (“CCP Cyber Threat Hearing”).

And witnesses testified about the CCP’s campaign of

transnational repression. See Hearing on CCP Transnational Repression: The Party’s Effort to Silence and

Coerce Critics Overseas Before the Select Comm. on the

CCP, 118th Cong. (2023), https://tinyurl.com/3yjsc45f.

Similarly, the Senate Select Committee on Intelligence held numerous open and closed hearings on

foreign covert intelligence operations leveraging social-media platforms, including receiving testimony

from the Director of the FBI on the national security

threat posed by TikTok during its annual Worldwide

Threats hearing. See Hearing on Worldwide Threats

Before the Senate Select Comm. on Intel., 118th Cong.,

01:08:53–01:11:01

(2024),

https://tinyurl.com/4pehm887.

Not only that, but in March 2023, TikTok Inc.

CEO Shou Zi Chew testified before Congress for approximately five hours. See generally Full Committee

Hearing on TikTok: How Congress Can Safeguard

American Data Privacy and Protect Children from

Online Harms Before the House Energy & Com.

Comm.,

118th

Cong.

(2023),

https://tinyurl.com/mpanhcfa (“TikTok Hearing”).

Acting on the information it has obtained over

this time, Congress previously enacted the No TikTok

on Government Devices Act, prohibiting government

officials from downloading or using TikTok on their

government devices. Consolidated Appropriations

Act, 2023, Pub. L. No. 117-328, Div. R, § 101, 136 Stat.

4459, 5258–59 (2022). The Divestiture Act—spearheaded by the then-Chairman and the Ranking Member of the Select Committee on the CCP and sponsored by the current Chairman—followed this thorough investigative process. See, e.g., H.R. Res. 1051.

The findings undergirding the law bear this out.3

As the Report on H.R. 7521—what became the Divestiture Act—of the House Committee on Energy

and Commerce details, there are “tight interlinkages”

between ByteDance, TikTok, and the CCP. H.R. Rep.

No. 118-417, at 3; accord H.R. Res. 1051. Through

TikTok, the PRC not only can “control data collection

on millions of users” but also can “control the software

on millions of devices” and thus “compromise” them.

See CCP Cyber Threat Hearing, supra, at 00:43:30–

00:45:08 (Testimony of FBI Director Wray); see also

H.R. Res. 1051 (referencing this testimony).

Among the ways this is so, the PRC is able to coerce

companies

headquartered

there—like

ByteDance—to “surrender all its data to the PRC,” no

matter “where that data was collected.” See H.R. Rep.

No. 118-417, at 3–4; see also H.R. Res. 1051 (reciting

the President’s determination in 2020 that “TikTok’s

ownership by ByteDance Ltd. enables the [PRC] . . .

and [CCP] . . . to gain access to ‘Americans’ personal

and proprietary information’”). Several recent PRC

laws underscore this threat. See H.R. Rep. No. 118-

Of course, “Congress is not obligated, when enacting its statutes, to make a record . . . to accommodate judicial review.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666 (1994) (plurality opinion); accord App. 52a (collecting authorities). But

there is one here.

417, at 4; H.R. Res. 1051; see also App. 35a (recognizing how the PRC “poses a particularly significant”

threat because of recently adopted laws in China enabling the PRC “to access and use data held by Chinese companies”).

For instance, the National Intelligence Law of

2017 requires that “[a]ll organizations and citizens

shall support, assist, and cooperate with national intelligence efforts.” See National Intelligence Law of

2017, ch. I, art. 7, https://tinyurl.com/5n6cbxdc.

Among other things, this means that PRC security

and intelligence forces can require organizations like

ByteDance—along with their subsidiaries anywhere

around the globe—to “provide necessary support, assistance, and cooperation,” which includes giving

those forces access to collect all “relevant files, materials or items.” Id. ch. II, arts. 14–16. Also, the Data

Security Law of 2021 gives PRC authorities jurisdiction over “data handling activities” outside of the Chinese mainland and requires all “relevant organizations and individuals” to “cooperate” when “[p]ublic

security organs and state security organs collect[]

data as necessary to lawfully preserve national security or investigate crimes.” See Data Security Law of

2021, ch. I, art. 2; ch. IV, art. 35, https://tinyurl.com/mrxvv8b6. And the PRC’s recently revised

Counter-Espionage Law mandates that any technological innovations be accessible to PRC authorities

for use to further the PRC’s state security and intelligence goals. See Counter-Espionage Law of 2023, ch.

I, art. 8; ch. IV, arts. 44, 49; ch. V, art. 59, https://tinyurl.com/yb5yvtsx.

These laws—paired with Chairman Xi Jinping’s

dramatic broadening of the country’s conception of national security, see, e.g., Katja Drinhausen & Helena

Legarda, “Comprehensive National Security” Unleashed: How Xi’s Approach Shapes China’s Policies

at Home and Abroad, Mercator Institute for China

Studies

(Sept.

15,

2022),

https://tinyurl.com/yvfmdrdy—mean that ByteDance must

comply with virtually any data request from the PRC,

including a request for TikTok data. The national security risks that such access could pose in a conflict

hardly require enumeration.

And the threat of all this being weaponized for

surveillance, covert influence, and transnational repression is not hypothetical. As has been reported,

the CCP and others have used TikTok to spy on prodemocracy protestors in Hong Kong and to conduct

“surreptitious surveillance” on U.S. citizen journalists. See H.R. Rep. No. 118-417, at 5 & n.22, 8 & n.45,

9; H.R. Res. 1051 (reciting then-National Security Advisor Robert O’Brien’s statement that “the CCP uses

TikTok . . . to collect personal, private, and intimate

data on Americans to use ‘for malign purposes’”); see

also Sebastian Rotella, Even on U.S. Campuses,

China Cracks Down on Students Who Speak Out,

ProPublica

(Nov.

30,

2021),

https://tinyurl.com/4ky4d244 (documenting how the PRC uses

social-media applications to surveil, target, and persecute U.S.-based dissidents).

Congress therefore determined that addressing

this existing and future threat for designated socialmedia applications, including TikTok, required excising the foreign adversary control from the applica-

tions. And with respect to TikTok in particular, Congress considered half-measures that have been proposed (so-called “Project Texas”) and concluded that

they are neither reliable, see, e.g., Rubio, Warner Call

for Investigation into TikTok After Chinese Communist Party’s Access to U.S. Data Comes to Light

(July 6, 2022), https://tinyurl.com/423m2z4x (documenting “TikTok’s misrepresentation” about its corporate structure that “undermine[d] longstanding

claims by TikTok’s management that the company’s

operations were firewalled from the CCP’s demands”),

nor adequate, see H.R. Res. 1051 (finding that “Project

Texas” would still expose Americans to “malicious

code, backdoor vulnerabilities, surreptitious surveillance, and other problematic activities” deriving from

the PRC).4

Indeed, through extensive discussions with TikTok’s senior corporate management, congressional

committees identified myriad deficiencies in the proposed national security agreement offered by TikTok

Petitioners, as well as residual risks that could not be

resolved through any behavioral remedies stipulated

to by the Committee on Foreign Investment in the

United States (particularly given documented instances of the company’s misrepresentation over its

corporate governance, data security, and other practices). See, e.g., H.R. Rep. 118-417 at 4–5; H.R. Res.

1051. Congress thus determined that the Divestiture

Act is the least restrictive way to resolve the national

security threat because nothing short of addressing

4 Accordingly, TikTok Petitioners’ suggestion that Congress nei-

ther “knew” about Project Texas nor “‘found it wanting,’” Emergency Appl. at 31, is mistaken.

TikTok’s foreign adversary control can address such

risks.5

B. Congress Chose To Respond To Those

Threats Through Tailored Means That

Regulate More Narrowly Than Other Foreign Ownership Statutes.

Accordingly, Congress passed the Divestiture Act.

Contrary to Petitioners’ contentions, the Divestiture

Act neither bans any social-media application nor imposes any regulation on speech. For apps whose operators choose to keep them “controlled by a foreign

adversary” after a specified time, the law (1) prohibits

app stores from “distribut[ing], maintain[ing], or updat[ing]” foreign adversary controlled applications

“within the land or maritime borders of the United

States” by means of an online application store and

(2) prohibits internet hosting services from providing

such “services to enable the distribution, maintenance, or updating” of foreign adversary controlled

applications “within the land or maritime borders of

the United States.” Divestiture Act § 2(a)(1)–(3), 2(c).

5 Along with the Divestiture Act, Congress also enacted the Pro-

tecting Americans’ Data from Foreign Adversaries Act of 2024,

see Pub. L. No. 118-50, Div. I, 138 Stat. 895, 960–63. This law

addresses a related national security problem—data-broker

sales of Americans’ data to foreign adversaries. But because of

the distinct threat posed by foreign adversary control of socialmedia applications generally and TikTok specifically, see supra,

Congress concluded that additional measures were needed, resulting in the Divestiture Act. Cf. App. 55a (“That the Congress

considered a series of other measures before ultimately adopting

the [Divestiture] Act implies only that the Congress determined

nothing short of divestiture would sufficiently avoid the risks

posed by TikTok.”).

But the Divestiture Act gives companies that operate

“foreign adversary controlled applications” in the

United States a way to continue offering uninterrupted services in the United States without threatening national security—by taking prescribed steps to

eliminate foreign adversary control over the application. See id. § 2(c)(1); id. § 2(g)(3), (6).

The Divestiture Act not only reflects specific intelligence Congress considered about the impact of

foreign adversary control on ByteDance and its applications; it is also representative of longstanding congressional concern about the potential national security risks posed by foreign control of American companies. See App. 44a (“[The Divestiture Act] follows the

Government’s well-established practice of placing restrictions on foreign ownership or control where it

could have national security implications.”); id. 66a–

71a (Srinivasan, C.J., concurring in part and concurring in the judgment) (explaining how the Divestiture

Act is “in step with longstanding restrictions on foreign control of mass communications channels”). Indeed, the Act is narrower than other, similar foreign

ownership regulations, including ones that have been

upheld against constitutional challenge.

For instance, in the Communications Act of 1934,

Congress generally prohibited foreign-incorporated or

-owned companies from holding radio spectrum licenses. See 47 U.S.C. § 310(b)(2)–(3). Under § 310, a

company qualifies as foreign owned if more than

twenty percent of its stock is owned by foreign persons

or entities. See id. § 310(b)(3). The Divestiture Act

follows this model, similarly adopting a foreign incorporation rule as well as a “20 percent stake” threshold

in defining what it means for a company to be “controlled by a foreign adversary.” Divestiture Act

§ 2(g)(1)(A)–(B). That said, the Divestiture Act is narrower: while the Communications Act applies universally, the Divestiture Act applies only to applications

that present a “significant threat to the national security of the United States,” have a large user base,

and are ultimately controlled by one of four foreign

adversary nations. See id. § 2(g)(3)(B)(ii); id. § 2(g)(2);

id. § 2(g)(4) (citing 10 U.S.C. § 4872(d)(2)).

Section 310’s foreign ownership ban has been upheld against constitutional attack. In Moving Phones

Partnership L.P. v. FCC, 998 F.2d 1051 (D.C. Cir.

1993), cert. denied, 511 U.S. 1004 (1994), the court

recognized that § 310 “reflect[ed] a long-standing determination to safeguard the United States from foreign influence in broadcasting.” 998 F.2d at 1055 (internal quotation marks omitted). And in the face of

an equal-protection challenge to § 310, the court applied rational-basis scrutiny and found that the statute easily passed given the “national security policy”

underlying it. See id. at 1056.

Consider also CFIUS, an interagency body with

authority to review, block, and even unwind after-thefact corporate mergers, acquisitions, or takeovers that

“could result in foreign control” over domestic commerce. Omnibus Trade and Competitiveness Act of

1988, Pub. L. No. 100-418, § 5021, 102 Stat. 1107,

1425–26; Foreign Investment and National Security

Act of 2007, Pub. L. No. 110-49, § 3, 121 Stat. 246,

252. Recently, this authority has been exercised to

require the divestiture of an American app owned by

a Chinese company. See, e.g., Echo Wang, China’s

Kunlun Tech Agrees to U.S. Demand to Sell Grindr

Gay Dating App, Reuters (May 13, 2019), https://tinyurl.com/yhsc6hrs. The Divestiture Act complements the much broader authority granted to CFIUS

by regulating with particularity a narrowly defined

class of foreign adversary controlled applications.

More recently, Congress has adopted other

measures that specifically target the national security threat posed by CCP control of companies involved in supplying communications network infrastructure. For example, in the NDAA for Fiscal Year

2019, Congress prohibited federal agencies from using telecommunications equipment produced by several entities affiliated with the PRC, including

Huawei and ZTE. See Pub. L. No. 115-232, § 889.

Then, in 2019, Congress required the FCC to create a

list of “covered communications equipment or services” on which federal funds could not be spent, and

the law defined those as communications or services

that “pose[] an unacceptable risk to the national security.” Secure and Trusted Communications Networks

Act of 2019, Pub. L. No. 116-124, § 2, 134 Stat. 158,

158–59 (2020). In that law, Congress required the

FCC to include as “covered” the equipment produced

by the specific entities identified in the NDAA for Fiscal Year 2019. See id. § 2(c)(3). And in 2021, Congress

passed the Secure Equipment Act of 2021, Pub. L. No.

117-55, 135 Stat. 423, specifying that the FCC could

not authorize the use of such “covered” equipment.

See id. § 2(a)(2).

In these laws, too, Congress identified specific

companies that posed a threat to American data security due to Chinese corporate ownership. And the

first law in this series, the NDAA for Fiscal Year

2019, has been upheld against constitutional challenge claiming that the law improperly singled out

specific companies. See Huawei Techs. USA, Inc. v.

United States, 440 F. Supp. 3d 607, 628–54 (E.D. Tex.

2020). The Divestiture Act is no different.

III.

PETITIONERS’ FIRST AMENDMENT OBJECTIONS ARE MERITLESS.

Petitioners argue the Divestiture Act violates

their First Amendment rights. The Court of Appeals

rightly rejected that argument, applying heightened

scrutiny. App. 32a–33a. This Court should affirm because the Divestiture Act does not regulate protected

speech.

First, “it is long settled as a matter of American

constitutional law that foreign citizens outside U.S.

territory do not possess rights under the U.S. Constitution.” Agency for Int’l Dev., 591 U.S. at 433 (collecting cases); see also id. at 433, 439 (holding that “legally distinct foreign affiliates” of American corporations “possess no rights under the U.S. Constitution”).

As Chief Judge Srinivasan explained below, that “settled” principle forecloses any First Amendment claim

by ByteDance, which is a foreign incorporated holding

company controlled by the PRC. App. 72a–74a (concurring in part and concurring in the judgment); see

also id. 27a (majority opinion) (agreeing ByteDance

has “no First Amendment rights”).

The same principle appears to foreclose any argument by Petitioner TikTok as well. Although “TikTok

Inc.” is an American company incorporated and headquartered in California, it “is wholly owned by

ByteDance, a foreign company.” App. 27a. As Justice

Barrett recently explained, “a social-media platform’s

foreign ownership and control over its content-moderation decisions might affect whether” the First

Amendment applies, even for a U.S.-based company.

Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2410 (2024)

(concurring).

TikTok concedes its “U.S. application is highly integrated with the global TikTok application” and

“runs on billions of lines of code that have been developed over multiple years by a team of thousands of

global engineers.” Br. of Pet’rs TikTok Inc. &

ByteDance Ltd. at 21, 23, TikTok Inc. v. Garland, No.

24-1113 (D.C. Cir. June 20, 2024) (cleaned) (“TikTok

C.A. Br.”); see also id. 32 (“A post-divestiture, U.S.only TikTok would lack the recommendation engine

that has driven its success”). Those assertions, taken

against the backdrop of TikTok’s foreign ownership

structure, strongly suggest that “the platform’s corporate leadership abroad makes the policy decisions

about the viewpoints and content the platform will

disseminate” and that “Americans” “the corporation

employs” are taking “the direction of foreign executives.” NetChoice, 144 S. Ct. at 2410 (Barrett, J., concurring). Thus, even if the Divestiture Act did regulate TikTok’s speech, such regulation “might [not] . . .

trigger First Amendment scrutiny.” See id.

Second, and more fundamentally, the Divestiture

Act regulates corporate ownership over U.S.-based

communications infrastructure, not speech. This

Court has long held that “restrictions on protected expression are distinct from restrictions on economic activity” and that “the First Amendment does not prevent” the latter. Sorrell v. IMS Health Inc., 564 U.S.

552, 567 (2011). Also, it has “reject[ed] the ‘view that

an apparently limitless variety of conduct can be labeled speech.’” Wisconsin v. Mitchell, 508 U.S. 476,

484 (1993) (quoting United States v. O’Brien, 391 U.S.

367, 376 (1968)). Determining that speech is not at

issue is easy where the regulated conduct “manifests

absolutely no element of protected expression.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986).

That is so here. The Divestiture Act states that it

“does not apply to a foreign adversary controlled application with respect to which a qualified divestiture

is executed.” Divestiture Act § 2(c). A “qualified divestiture” requires, in relevant part, “a divestiture or

similar transaction” that “the President determines,

through an interagency process, would result in the

relevant foreign adversary controlled application no

longer being controlled by a foreign adversary.” Id.

§ 2(g)(6); see also id. § 2(g)(1) (defining “controlled by

a foreign adversary”).

Under the Divestiture Act, therefore, TikTok can

avoid any regulation whatsoever by simply divesting

itself of foreign control. Because that requirement

“exhibits nothing that even the most vivid imagination might deem uniquely expressive,” Wine & Spirits

Retailers, Inc. v. Rhode Island, 418 F.3d 36, 53 (1st

Cir. 2005); Int’l Franchise Ass’n v. City of Seattle, 803

F.3d 389, 408 (9th Cir. 2015) (“A business agreement

or business dealings . . . is not conduct with a significant expressive element.”), the First Amendment does

not apply.

TikTok Petitioners do not deny that a qualified

divestiture is conduct not speech. Instead, they assert

that their First Amendment rights are nevertheless

burdened because the practical effect of the Divestiture Act is to shut TikTok down. Emergency Appl. at

1, 10. But that plainly is not true. For one, the Divestiture Act does not require that TikTok shut

down—only that it shed foreign adversary control. Cf.

Am. Soc’y of Ass’n Execs. v. United States, 195 F.3d

47, 50 (D.C. Cir. 1999) (concluding that a law providing “option[s]” whereby an entity “can avoid any alleged burden on its First Amendment rights”—such

as by “splitting itself into two organizations”—does

not trigger First Amendment scrutiny). To the extent

divestiture presents challenges, similar (and here,

temporary) burdens are imposed by “many laws [that]

make the exercise of First Amendment rights more

difficult.” See Univ. of Penn. v. EEOC, 493 U.S. 182,

200 (1990). But a plaintiff “cannot claim a First

Amendment violation simply because” it “may be subject to . . . government regulation.” Id. By the same

token, TikTok users cannot claim a constitutional injury if TikTok elects to shut down rather than shed its

foreign adversary control.

Further, TikTok Petitioners’ argument on this

point—which they have framed in terms of the purported infeasibility of spinning off a U.S.-specific version of TikTok, see Emergency Appl. at 12—rests on a

myopic reading of the Divestiture Act. ByteDance

could spin off TikTok entirely—both U.S.-based and

non-U.S. operations—and avoid the ostensible challenges posed by a hypothetical U.S.-only TikTok.

Though Mr. Chew testified before Congress under

18 U.S.C. § 1001 that “ByteDance is not owned or controlled by the Chinese government,” see TikTok Hearing, supra, at 00:20:39–00:20:50, TikTok Petitioners

argued below that the PRC holds such sway over

ByteDance that it would block this sort of transaction,

see TikTok C.A. Br. 24. But if that is so, the PRC, not

the Divestiture Act, is to blame. And the First

Amendment is not triggered by that. As Chief Judge

Srinivasan explained, “[i]nsofar as the PRC’s (or

ByteDance’s) own decisions may prevent [divestiture]

from happening, the independent decisions of those

foreign actors cannot render Congress’s chosen means

[unconstitutional].” App. 89a (concurring in part and

concurring in the judgment); see id. 74a–75a; cf. Cohen v. Cowles Media Co., 501 U.S. 663, 671 (1991)

(finding no First Amendment problem when speech

restrictions were “self-imposed”).

TikTok Petitioners have also asserted that “any

divestiture would change TikTok’s speech” because a

“post-divestiture, U.S.-only TikTok would lack the

recommendation engine that has driven its success.”

TikTok C.A. Br. 32. But elsewhere, TikTok Petitioners conceded that this “recommendation engine” is in

fact under the control of a foreign adversary country.

See id. 25. TikTok Petitioners’ concession that TikTok’s recommendation engine is ultimately controlled

by the PRC merely confirms that, to the extent that it

involves expressive conduct, such conduct is unprotected. See Agency for Int’l Dev., 591 U.S. at 433.

TikTok Petitioners are also wrong in claiming the

Divestiture Act is content- and speaker-based. See

Emergency Appl. at 3, 20–22. The statute creates

neutral and generally applicable rules for all foreign

adversary controlled applications that are determined

to pose a national security risk. To be sure, with respect to the TikTok Petitioners, Congress determined

that the application is controlled by a foreign adversary and poses a significant national security threat

and did not delegate that function to the executive

branch. But Congress gave TikTok Petitioners the

same divestment choice and process that it gave to

every other application designated under the statute

that is controlled by a foreign adversary and poses a

significant national security threat.

CONCLUSION

This Court should affirm.

Respectfully submitted,