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

Nos. 24-656, 24-657

IN THE

Supreme Court of the United States

TIKTOK, INC., ET AL.,

Petitioners,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

BRIAN FIREBAUGH, ET AL.,

Petitioners,

v.

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 FORMER FEDERAL

COMMUNICATIONS COMMISSION AND

TREASURY OFFICIALS

IN SUPPORT OF RESPONDENT

THOMAS M. JOHNSON, JR.

Counsel of Record

JEREMY J. BROGGI

MICHAEL J. SHOWALTER

STEPHANIE RIGIZADEH

WILEY REIN LLP

2050 M Street N.W.

Washington, D.C. 20036

tmjohnson@wiley.law

(202) 719-7000

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT ................................. 3

ARGUMENT ............................................................. 5

I.

Congress’s Requirement That TikTok Divest

Reflects

Legitimate

and

Longstanding

Governmentwide Concerns Over Threats Posed

by China’s Corporate Ownership. .....................5

A.

TikTok Acknowledges National Security

Concerns with China’s Corporate

Ownership. ..............................................6

B.

The United States Has Engaged the

Threat Posed by China’s Corporate

Ownership. ..............................................9

1.

Assessments of Threats Posed by

Huawei and ZTE ......................... 9

2.

The PRC’s Cyber and National

Intelligence Laws ...................... 12

3.

The Secure Networks Act and the

Covered List .............................. 14

4.

Section 214 ................................ 16

C.

The United States Has Addressed the

Threat Posed by China’s Corporate

Control Through the CFIUS Process. ..18

D.

Other Former Government Officials,

Politicians, and Academics Agree. .......23

ii

II.

Viewed in This Light, TikTok’s Various

Objections to the Divestiture Act Are

Misplaced. ........................................................25

CONCLUSION ....................................................... 28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

China Telecom (Americas) Corp. v. FCC,

57 F.4th 256 (D.C. Cir. 2022) ........................... 17

Hikvision USA, Inc. v. FCC,

97 F.4th 938 (D.C. Cir. 2024) ..................... 16, 27

Holder v. Humanitarian L. Project,

561 U.S. 1 (2010)................................................. 8

Huawei Techs. USA, Inc. v. FCC,

2 F.4th 421 (5th Cir. 2021) ..................... 2, 11, 27

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

440 F.Supp.3d 607 (E.D. Tex. 2020) .......... 10, 27

McCulloch v. Maryland,

17 U.S. 316 (1819) ....................................... 27, 28

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ........................................... 28

Constitutional Provisions

U.S. Const. art. I, § 8.............................................. 28

Statutes

47 U.S.C. § 214 ....................................................... 16

iv

47 U.S.C. § 1601 ..................................................... 15

50 U.S.C. §§ 4501-4568 .................................... 18, 19

50 U.S.C. § 4502 ..................................................... 18

50 U.S.C. § 4565 ............................................... 19, 20

Cybersecurity Law of the PRC, ch. III, 2017 ........ 13

Cybersecurity Law of the PRC, ch. V, 2017 .......... 13

Foreign Investment Risk Review

Modernization Act of 2018, Pub. L. No.

115-232, 132 Stat. 1636 (2019) ......................... 20

NDAA for Fiscal Year 2018, Pub. L. No.

115-91, 131 Stat. 1283 (2017) ............................. 9

NDAA for Fiscal Year 2019, Pub. L. No.

115-232, 132 Stat. 1636 (2018) ..................... 9, 10

Protecting Americans from Foreign

Adversary Controlled Applications Act,

Pub. L. No. 118-50, 138 Stat. 895 (2024) ........... 3

Secure and Trusted Communications

Networks Act of 2019, Pub. L. No. 116124, 134 Stat. 158 (2020) ........................ 2, 14, 15

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

117-55, 135 Stat. 423 (2021) ......................... 2, 15

v

Other Materials

31 C.F.R. § 800.102 ................................................ 20

47 C.F.R. Part 63.................................................... 16

Addressing the Threat Posed by TikTok,

and Taking Additional Steps To Address

the National Emergency With Respect to

the Information and Communications

Technology and Services Supply Chain,

Exec. Order No. 13942, 85 Fed. Reg.

48637 (Aug. 6, 2020) ......................................... 21

Alexandra G. Neenan et al., The Defense

Production Act of 1950: History,

Authorities, and Considerations for

Congress, Cong. Rsch. Serv. (Oct. 6,

2023) ............................................................ 18, 19

Cathleen D. Cimino-Isaacs & Karen M.

Sutter, CFIUS, Cong. Rsch. Serv. (May

17, 2024) ............................................................ 19

CFIUS, Department of Treasury,

https://tinyurl.com/fvbyxkrk (last visited

Dec. 26, 2024) .................................................... 19

CFIUS Overview, Department of the

Treasury, https://tinyurl.com/3chadfkj

(last visited Dec. 26, 2024) ............................... 20

vi

In re China Telecom (Americas) Corp.,

36 FCC Rcd. 15966 (2021) ................................ 17

Christopher Wray, 2022 Josh Rosenthal

Memorial Talk, University of Michigan

(Dec. 2, 2022),

https://tinyurl.com/49vw9bhn .......................... 24

Colleen McClain, Majority of Americans say

TikTok is a threat to national security,

Pew Research Center (July 10, 2023),

https://tinyurl.com/4tp8sd8x ............................ 25

Identification of Prohibited Transactions to

Implement Executive Order 13942 and

Address the Threat Posed by TikTok and

the National Emergency with Respect to

the Information and Communications

Technology and Services Supply Chain,

85 Fed. Reg. 60061 (2020) ................................ 21

International Section 214 Application

Filing Guidelines, FCC,

https://tinyurl.com/458sudyx (last

updated May 14, 2015) ..................................... 16

James L. Schoff & Asei Ito, Competing with

China on Technology and Innovation,

Carnegie Endowment for International

Peace (Oct. 10, 2019),

https://tinyurl.com/3jypsf85.............................. 13

vii

Klon Kitchen, Ban TikTok Now, American

Enterprise Institute (July 7, 2022),

https://tinyurl.com/mwkhz9tb .......................... 13

Letter from Chairman Ajit Pai, FCC, to

Sen. Tom Cotton (Mar. 20, 2018) ..................... 10

Letter from Sen. Tom Cotton et al., to

Chairman Ajit Pai, FCC (Dec. 20, 2017) .......... 10

Letter from Sens. Mark Warner & Marco

Rubio, to Chairwoman Lina Khan, FTC

(July 5, 2022)..................................................... 24

Letter from the Vandenberg Coalition, to

Senate Majority Leader Charles

Schumer and Minority Leader Mitch

McConnell (Apr. 10, 2024) .......................... 13, 23

Michael Ramsey, The Constitution’s Text in

Foreign Affairs (2007) ....................................... 28

Murray Scot Tanner, Beijing’s New

National Intelligence Law: From Defense

to Offense, Lawfare (July 20, 2017),

https://tinyurl.com/2nnk68j4 ............................ 13

In re Pacific Networks Corp. and ComNet

(USA) LLC,

37 FCC Rcd. 4220 (2022) ............................ 17, 18

viii

Protecting Against National Security

Threats to the Communications Supply

Chain Through the Equipment

Authorization Program,

36 FCC Rcd. 10578 (2021) ................................ 15

Protecting Against National Security

Threats to the Communications Supply

Chain Through the Equipment

Authorization Program,

37 FCC Rcd. 13493 (2022) ................................ 15

Protecting Against National Security

Threats to the Communications Supply

Chain Through FCC Programs –

Huawei Designation,

35 FCC Rcd. 6604 (2020) ............................ 11, 12

Protecting Against National Security

Threats to the Communications Supply

Chain Through FCC Programs –

Huawei Designation,

Memorandum Opinion and Order, 35

FCC Rcd. 14435 (2020) ............................... 12, 14

Protecting Against National Security

Threats to the Communications Supply

Chain Through FCC Programs – ZTE

Designation,

35 FCC Rcd. 6633 (2020) ............................ 12, 14

ix

Protecting Against National Security

Threats to the Communications Supply

Chain Through FCC Programs,

34 FCC Rcd. 11423 (2019) .......................... 10, 11

Protecting Against National Security

Threats to the Communications Supply

Chain Through FCC Programs,

35 FCC Rcd. 14284 (2020) ................................ 15

Protecting Americans’ Sensitive Data from

Foreign Adversaries, Exec. Order No.

14034, 86 Fed. Reg. 31423 (June 9,

2021) .................................................................. 22

Regarding the Acquisition of Musical.ly by

ByteDance Ltd., 85 Fed. Reg. 51297

(Aug. 14, 2020) .......................................... 4, 5, 22

Statement of the FTC in the Matter of

ByteDance/Musical.ly, (June 18, 2024),

https://tinyurl.com/4tc9jxr3 .............................. 24

Stephen P. Mulligan, Restricting TikTok

(Part I): Legal History and Background,

Cong. Rsch. Serv. (Sept. 28, 2023) ............. 20, 22

Thomas Feddo, Three Years’ Delay to Rein

in TikTok, RealClear Defense (Feb. 15,

2023), https://tinyurl.com/32vbtmse ................ 22

x

Vandenberg Coalition, Around the World:

Essential Foreign Policy Issues for

Leaders (Oct. 2022) ........................................... 23

Vandenberg Coalition, Myth vs. Fact,

Protecting Americans from Foreign

Adversary Controlled Applications Act

(Apr. 10, 2024)................................................... 23

Video Social Networking App Musical.ly

Agrees to Settle FTC Allegations That it

Violated Children’s Privacy Law, FTC

(Feb. 27, 2019),

https://tinyurl.com/yc3bm84a ........................... 24

Worldwide Threats Assessment: Hearing

Before the U.S. Senate Select

Committee on Intelligence (Mar. 11,

2024) .................................................................. 24

Yaqiu Wang, The Problem with TikTok’s

claim of independence from Beijing, The

Hill (Mar. 24, 2023) .................................... 14, 23

INTEREST OF AMICI CURIAE

Amici curiae are former high-ranking government officials who oversaw federal regulatory programs with responsibility for reviewing foreign corporate ownership structures of American companies.1

Through their prior government service, these officials became acutely aware of the national security

risks posed by People’s Republic of China (“PRC”) corporate ownership of companies operating within the

United States, including TikTok and other companies

in the communications ecosystem.2 They respectfully

submit this brief to highlight the legitimate public

policy goals behind the Divestiture Act under review

and provide context on similar government programs

animated by the same common goal—protecting the

vital national security of American citizens.

The Honorable Ajit V. Pai is the former Chairman

of the Federal Communications Commission (“FCC”).

During his time at the FCC, former Chairman Pai

spearheaded a rulemaking that prohibited communications companies that received federal subsidies

from purchasing or using equipment from two designated Chinese-owned manufacturers, Huawei and

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

The Vandenberg Coalition, a non-partisan network of foreign

policy scholars and practitioners who believe in the power of

American leadership to protect American national security, contributed to the funding of this brief. No person other than the

amici curiae, their counsel, or the Vandenberg Coalition made a

monetary contribution to its preparation or submission.

The views expressed in this brief are solely those of amici in

their personal capacities as former government officials and do

not reflect the views of any of their current or prior employers,

partners, or employees.

2

2

ZTE, and put in place a process for future designations of companies that posed a similar risk to national security. This rulemaking was upheld by the

Fifth Circuit. See Huawei Techs. USA, Inc. v. FCC, 2

F.4th 421 (5th Cir. 2021). This framework, substantially similar to the Divestiture Act, was also ratified

by Congress in the Secure Networks Act and expanded in the Secure Equipment Act, which prohibited the FCC from approving for sale in the United

States certain equipment produced by the covered

manufacturers. See Secure and Trusted Communications Networks Act of 2019, Pub. L. No. 116-124, §§ 24, 134 Stat. 158 (2020); Secure Equipment Act of

2021, Pub. L. No. 117-55, 135 Stat. 423 (2021).

The Honorable Thomas P. Feddo served as the

first Assistant Secretary of the Treasury for Investment Security and oversaw the interagency Committee on Foreign Investment in the United States

(“CFIUS”), where he led its national security reviews

of several hundred cross-border transactions totaling

more than $400 billion. During his stewardship of

CFIUS, the Committee undertook a review of the national security risks posed by ByteDance’s acquisition

of Musical.ly and the integration of TikTok’s and Musical.ly’s social media applications. That investigation culminated in a presidential order issued by

then-President Trump—and kept in effect under

President Biden—finding credible evidence for the

President to believe that the acquisition threatened to

impair U.S. national security and that ordered

ByteDance to divest its interests in TikTok’s U.S. operations.

3

SUMMARY OF ARGUMENT

In the court below, TikTok repeatedly attempted

to downplay as “speculative” the national security

concerns identified by the Department of Justice

(“DOJ”) that led Congress to adopt the Divestiture

Act.3 D.C. Cir. Br. Pet’r’s TikTok Inc. and ByteDance

Ltd. 2, 52-54 (“TikTok Br.”). And it criticized Congress for relying on the “potential” harms TikTok

could pose to national security. Id. at 18. But TikTok

never claimed that Congress had no legitimate national security reasons to regulate it, nor that the potential threat does not in fact exist. To the contrary,

TikTok simply complained that Congress called it out

by name in the Act, rather than accord it additional

procedural protections, and that it ordered divestiture

as opposed to alternate measures TikTok considered

sufficient. According to TikTok, when Congress regulates a communications platform, that violates the

First Amendment.

But the policies and approach reflected in the Divestiture Act are nothing new or extraordinary. Congress frequently makes judgments that specific foreign companies pose a national security threat, while

putting in place a process to allow the Executive

Branch to identify additional threats that materialize

in the future. In recent years, Congress has done this

repeatedly in the communications space to address

the threats posed by PRC corporate ownership of

American companies. That threat is endemic to PRC

Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, div. H, 138 Stat. 895, 955-60

(2024) (“Divestiture Act”).

3

4

law, which requires companies owned by China’s citizens to permit state-authorized covert surveillance

into data collected by the company.

In the case of TikTok, that could mean the exposure of millions of Americans’ sensitive personal information. As the D.C. Circuit recognized in rejecting

TikTok’s First Amendment challenge, “[i]n this case,

a foreign government threatens to distort free speech

on an important medium of communication” and “collect great quantities of data about tens of millions of

Americans.” App. 30a, 43a (slip op. 30, 43). “The Government’s solution to those threats has the earmarks

of a rather conventional response to a security risk:

remove the risk.” Id. at 62a (cleaned up).

TikTok does not deny that PRC law requires surveillance; it simply believes its own negotiated restrictions would be preferable to divestiture. But it is

ludicrous to suggest, as TikTok does, that the U.S.

Government cannot prefer divestiture as a policy option, or that it must wait for Americans to be compromised before it can act. To the contrary, over the past

50 years Congress and the Executive Branch have developed and augmented an interagency national security process through CFIUS—rooted in the President’s constitutional Commander in Chief authorities, and chaired on his behalf by the Secretary of the

Treasury—that may ultimately use divestiture as a

tool to resolve national security risks. These national

security tools were most recently overhauled and enhanced in 2018, in substantial part because of the

risks posed to the United States and its people by the

PRC. During the Trump Administration, CFIUS initiated an investigation into a ByteDance acquisition

that led the President to issue a presidential order

5

concluding that ByteDance must divest its interests

in TikTok’s U.S. operations. See Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg.

51297 (Aug. 14, 2020). That order, which remains on

the books even following a change in administrations,

now should be considered to represent the bipartisan

judgment of two U.S. presidents.

If this Court accepted TikTok’s arguments, it

would potentially imperil the operation of longstanding statutory national security review processes that

deem a specific foreign-controlled company to pose a

U.S. national security threat as a result of the company acquiring or seeking to acquire specific American businesses and their assets. A company should

not be able to use the mere fact that it engages in expressive activity to invoke the First Amendment to

avoid both Congress’s and the Executive Branch’s

considered judgment that its corporate structure and

its relation to an adversary of the United States poses

an unacceptable risk to U.S. national security.

ARGUMENT

I.

Congress’s Requirement That TikTok

Divest

Reflects

Legitimate

and

Longstanding Governmentwide Concerns

Over Threats Posed by China’s Corporate

Ownership.

Across government branches and the political

spectrum, American leaders and policymakers have

long expressed serious concern about the national security threat posed by the Chinese government

through corporate ownership of American companies.

See App. 32a (slip op. 32) (discussing the “multi-year

6

efforts of both political branches to investigate the national security risks posed by the TikTok platform”);

id. (“The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents.”).

Indeed, as TikTok acknowledges, before the Divestiture Act was enacted, DOJ informed Congress of

its serious national security concerns surrounding

TikTok itself. For years, the federal entities previously overseen by amici (the FCC and CFIUS) have

recognized that China’s control of companies operating in the U.S. can manifest threats from the Chinese

Communist Party (“CCP”) and Chinese government

and have worked to mitigate such risks through concrete action and the exercise of their respective authorities. Congress too has frequently articulated

these risks—including through committee hearings,

congressional reports and letters, and congressional

enactments that identify specific companies posing

such acute threats. These concerns are unrelated to

any speech by these companies or their customers.

The Divestiture Act is yet another such preventative

measure, reflecting the same concerns about significant U.S. national security risks.

A.

TikTok Acknowledges National Security Concerns with China’s Corporate

Ownership.

As TikTok acknowledges, “before Congress

passed the Act, the Justice Department provided

members of Congress a one-page document describing

‘key national security concerns.’” TikTok Br. 18. TikTok dismisses these concerns as mere “speculative” or

7

“potential” threats, but that framing cannot withstand scrutiny.

As DOJ explained, TikTok “collects tremendous

amounts of sensitive data.” Id. This matters because

the Chinese government “could use TikTok to access

data on millions of U.S. users and control the software

on millions of U.S. devices.” D.C. Cir. TikTok App.

156 (“TikTok App.”). The Chinese government also

“leads the world in using surveillance and censorship

to keep tabs on its population, repress dissent, and

counter perceived threats abroad.” Id. And the Chinese government requires companies doing business

in China (like ByteDance) to share their data with the

government. Id. That data sharing is done secretly—

there is no way for the United States to know when or

how much data is being shared. Id. And indeed U.S.

media has reported that ByteDance employees in

China have repeatedly used TikTok to access U.S.

user data and track American journalists. Id. The

Chinese government’s “ability to weaponize data and

conduct sophisticated influence campaigns,” DOJ

warned, “will only advance over time” and will “be difficult to detect.” Id. Considering this threat, DOJ

concluded that legislation must “separate TikTok the

company from Beijing and its PRC-based parent company.” Id.

TikTok never denies any of DOJ’s assertions, but

instead complains that DOJ did not present hard evidence that the threats it discussed have yet been realized. See TikTok Br. 52-53. But that is incorrect—

DOJ identified reporting that ByteDance employees

already have used TikTok to spy on Americans and

American journalists. TikTok App. 156; see also App.

34a (slip op. 34) (“[T]he PRC has engaged in ‘extensive

8

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.”). And

more importantly, the U.S. Government may take

preventative measures to protect its citizens from foreign threats before they become realized harms. It

would be a “dangerous requirement” to “demand[]

hard proof— with ‘detail,’ ‘specific facts,’ and ‘specific

evidence’” in this context, where “national security

and foreign policy concerns arise 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.” Holder v. Humanitarian L. Project, 561 U.S. 1, 34-35 (2010).

As amici curiae know well from their prior government service, DOJ’s concerns are well founded.

The United States has long had significant and legitimate public policy concerns over PRC-based corporate control of businesses in the United States generally—and more recently, with TikTok in particular.

Under then-Chairman Pai, the FCC recognized the

threat posed by China’s corporate ownership and combatted this threat through a series of rulemakings undertaken in interbranch dialogue with Congress. And

during Assistant Secretary Feddo’s tenure, CFIUS

also took concrete steps to address that threat, and

specifically the threat posed by ByteDance’s ownership and control of the U.S. business.

B.

9

The United States Has Engaged the

Threat Posed by China’s Corporate

Ownership.

During Chairman Pai’s administration, the FCC

worked alongside Congress to identify and address a

series of threats to national security posed by China’s

control of corporations owned by its citizens. This has

sometimes included identifying specific companies

that presented national security risks and naming

them for particularized treatment. The resulting legislative and regulatory programs have been uniformly

upheld by courts.

1.

Assessments of Threats Posed by

Huawei and ZTE

In the 2018 National Defense Authorization Act,

Congress barred the Department of Defense from using telecommunications equipment or services produced or provided by China’s Huawei and ZTE for certain federal programs. NDAA for Fiscal Year 2018,

Pub. L. No. 115-91, § 1656, 131 Stat. 1283, 1762

(2017). Then, in the 2019 NDAA, Congress prohibited

Executive Branch agencies from using federal funds

to procure equipment that use “covered telecommunications equipment.” NDAA for Fiscal Year 2019, Pub.

L. No. 115-232, §§ 889(a), (f)(2)-(3), 132 Stat. 1636,

1918 (2018). The 2019 NDAA defines “covered telecommunications equipment or services” in four categories, one of which specifically names PRC-based

companies Hikvision, Dahua, and Hytera to encompass their equipment. See id. § 889(f)(3)(B). Apart

from these specific designations, the NDAA provides

a process through which certain national security authorities could identify other companies’ equipment

10

that posed a threat to the United States. See id.

§ 889(a), (f)(3)(D). In this, the NDAA mirrored in form

the Divestiture Act; Congress had sufficient information to designate specific companies as threats, but

established a process to allow the federal government

to expand that list as threats evolved. Huawei challenged that specific designation as an unlawful Bill of

Attainder, among other things, but the statute was

upheld. See Huawei Techs. USA, Inc. v. United

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

In 2017, around the time the first NDAA was

adopted, Senator Tom Cotton and colleagues wrote a

letter to then-Chairman Pai alerting the FCC of the

national security risk that would arise if U.S. telecommunications providers began selling Huawei consumer products without modifications. Letter from

Sen. Tom Cotton et al., to Chairman Ajit Pai, FCC

(Dec. 20, 2017). The Senators emphasized that Congress had “long been concerned about Chinese espionage in general, and Huawei’s role in that espionage

in particular.” Id. Citing a 2013 House Permanent

Select Committee on Intelligence report, the Senators

underscored “Huawei’s ties to the Chinese Communist Party, as well as to Chinese intelligence and

security services.” Id. Then-Chairman Pai responded

that he shared these “concerns about the security

threat that Huawei and other Chinese technology

companies pose to our communications networks,”

and would “take proactive steps” in this matter. Letter from Chairman Ajit Pai, FCC, to Sen. Tom Cotton

(Mar. 20, 2018).

In response, the FCC proposed a rule prohibiting

the use of subsidies from the FCC’s Universal Service

Fund to purchase or obtain equipment or services

11

from a provider identified as posing a national security risk to the communications networks. See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs,

34 FCC Rcd. 11423, ¶ 26 (2019) (codified at 47 C.F.R.

§ 54.9) (“Initial Huawei Order”). In that proposal, the

Commission initially designated Huawei and ZTE as

likely to pose a national security threat, and established a process for the FCC’s Public Safety and

Homeland Security Bureau to designate additional

companies. Id. ¶¶ 27, 64. Huawei challenged the

FCC’s constitutional and statutory authority to adopt

this regime, as well as its initial designation without

additional process. But here too, a court ruled the

FCC’s framework was lawful. See Huawei, 2 F.4th at

427.

Following additional public comment, the FCC issued final designation orders excluding Huawei and

ZTE as permissible suppliers for companies participating in Universal Service Fund programs. With respect to Huawei, the FCC determined that “Huawei

pose[d] a national security threat to our nation’s communications networks and the communications supply chain.” Protecting Against National Security

Threats to the Communications Supply Chain

Through FCC Programs – Huawei Designation, 35

FCC Rcd. 6604, ¶ 10 (2020) (“Huawei Final Designation Order”). The Public Safety and Homeland Security Bureau issued a rule designating Huawei and its

American affiliate as national security risks and barring recipients of federal subsidies administered by

the FCC under its Universal Service Fund from using

the funds to purchase their equipment. Id. ¶ 1. The

full Commission affirmed the Bureau’s findings, con-

12

cluding that Huawei is “‘a unique threat’ to the security and integrity of the nation’s communications networks and communications supply chain because of

its size, close ties to the Chinese government, and security flaws identified in its equipment.” Protecting

Against National Security Threats to the Communications Supply Chain Through FCC Programs – Huawei

Designation, Memorandum Opinion and Order, 35

FCC Rcd. 14435, ¶ 6 (2020) (“Commission Review of

Huawei Final Designation Order”).

Similarly, the FCC designated ZTE as “a national

security threat to our nation’s communications networks and communications supply chain.” Protecting

Against National Security Threats to the Communications Supply Chain Through FCC Programs – ZTE

Designation, 35 FCC Rcd. 6633, ¶ 9 (2020) (“ZTE Final Designation Order”). The FCC noted “ZTE’s close

ties to the Chinese government and obligations under

Chinese law” and its “disregard for U.S. national security laws.” Id. ¶ 11. And the FCC found that “ZTE

poses a particular security risk because Chinese intelligence agencies have opportunities to tamper with its

products in both the design and manufacturing processes.” Id. ¶ 13.

2.

The PRC’s Cyber and National

Intelligence Laws

The FCC’s findings in the Huawei and ZTE Final

Designation Orders relied in part on the threat posed

generally by China’s corporate control, which is in

part the product of PRC laws that compel cooperation

with the CCP. Huawei Final Designation Order ¶¶

12-14, 18-27; ZTE Final Designation Order ¶¶ 11-18.

China’s Cybersecurity Law, for example, requires

China-controlled companies to provide direct access

13

to their data and threatens penalties, including arrest, for failure to comply. Article 28 requires China’s

internet companies to assist the government in “protecting national security and investigating crimes.”

Cybersecurity Law of the PRC, ch. III, art. 28, 2017;

see also Letter from the Vandenberg Coalition, to Senate Majority Leader Charles Schumer and Minority

Leader Mitch McConnell (Apr. 10, 2024) (“Vandenberg Letter”). Article 51, in turn, allows China to “establish a cybersecurity monitoring, early warning,

and information communication system,” which internet companies would be required to implement. Cybersecurity Law of the PRC, ch. V, art. 51, 2017. And

a separate law, Beijing’s 2017 National Intelligence

Law, creates “affirmative legal responsibilities for

Chinese firms to provide access, cooperation, or support for Beijing’s intelligence-gathering activities.”

James L. Schoff & Asei Ito, Competing with China on

Technology and Innovation, Carnegie Endowment for

International Peace (Oct. 10, 2019), https://tinyurl.com/3jypsf85; see Murray Scot Tanner, Beijing’s

New National Intelligence Law: From Defense to Offense, Lawfare (July 20, 2017), https://tinyurl.com/2nnk68j4; see also App. 35a (slip op. 35)

(the PRC poses a particularly significant threat “because it has adopted laws that enable it to access and

use data held by Chinese companies”).

China’s national security and data-security laws

apply extraterritorially to its companies no matter

where they operate, and include the operations of any

foreign subsidiaries, such as TikTok U.S. That means

that a China-controlled company or subsidiary (including TikTok U.S.) must share with the CCP any

data that it collects, no matter where it is collected or

stored. See Klon Kitchen, Ban TikTok Now, American

14

Enterprise Institute (July 7, 2022), https://tinyurl.com/mwkhz9tb. And the CCP “has a record of

making private Chinese companies carry out its political deeds, including censoring and surveilling Americans.” Yaqiu Wang, The Problem with TikTok’s

claim of independence from Beijing, The Hill (Mar. 24,

2023), https://tinyurl.com/ycxabvfm.

In the Huawei and ZTE Final Designation Orders,

the FCC unanimously recognized the risks created by

these laws. In the Huawei proceeding, the FCC observed that the “National Intelligence Law grants the

Chinese government the power to compel Huawei to

assist it in espionage activities,” Commission Review

of Huawei Final Designation Order ¶ 16 (citations

omitted), and that companies largely cannot refuse

the Chinese government’s requests. Id. ¶¶ 15-17. In

the ZTE proceeding, similarly, the FCC emphasized

that “[a] close reading of the provisions of the Chinese

National Intelligence Law demonstrates that it is

broad enough to allow the Chinese government to

compel Chinese companies such as ZTE to assist it in

its espionage activities.” ZTE Final Designation Order ¶ 17.

3.

The Secure Networks Act and the

Covered List

In March 2020, Congress enacted the Secure Networks Act, which requires the FCC to maintain a list

of “covered communications equipment and services”

that pose a national security risk and prohibits the

use of FCC-administered federal funds on covered

equipment or services. Secure and Trusted Communications Networks Act of 2019, §§ 2-4. This “Covered

List” must include equipment that is “covered telecommunications equipment” under Section 889(f)(3)

15

of the 2019 NDAA. Id. § 2(c)(3). The 2019 NDAA, to

repeat, names Dahua, Hikvision, and Hytera specifically.

In December 2020, the FCC issued an order to implement the Secure Networks Act. See Protecting

Against National Security Threats to the Communications Supply Chain Through FCC Programs, 35 FCC

Rcd. 14284 (2020). The FCC stated that the Covered

List would include certain video surveillance and telecommunications equipment produced by Hikvision,

Dahua, and Hytera. Id. ¶ 68. Then, in June 2021, the

FCC proposed a rule effectively banning the importation, sale, or marketing of Covered List equipment.

See Protecting Against National Security Threats to

the Communications Supply Chain Through the

Equipment Authorization Program, 36 FCC Rcd.

10578 (2021). The FCC explained that its proposed

measures would serve the public interest by addressing significant national security risks, consistent with

the Commission’s statutory duty to safeguard “the national defense” and “promot[e] safety of life and property.” Id. ¶¶ 6, 65 (citing 47 U.S.C. § 151).

While the Commission’s rulemaking was ongoing,

Congress enacted the Secure Equipment Act, which

ratified the FCC’s rule by directing the FCC to clarify

that it would “no longer review or approve any application for equipment authorization for equipment

that is on the [Covered List].” 47 U.S.C. § 1601 note;

Secure Equipment Act of 2021, 135 Stat. 423 (2021).

In November 2022, the FCC issued an order fulfilling

that directive. Protecting Against National Security

Threats to the Communications Supply Chain

Through the Equipment Authorization Program, 37

FCC Rcd. 13493, ¶¶ 39, 42-43 (2022). The D.C. Circuit upheld that order in relevant part, recognizing

16

that “Congress has clearly expressed its view that

[Hikvision’s and Dahua’s] products pose a risk to national security” and that “the national-security judgments and concerns underlying the Executive

Branch’s decision in this case counsel deference.” See

Hikvision USA, Inc. v. FCC, 97 F.4th 938, 945, 948

(D.C. Cir. 2024).

4.

Section 214

Another way the FCC has confronted the threat

posed by China’s corporate influence is through its enforcement of Section 214 of the Communications Act.

Section 214 outlines the requirements for telecommunications carriers seeking to construct, acquire, operate, or discontinue facilities or services. See 47 U.S.C.

§ 214. Carriers must submit an application to the

FCC that provides detailed information about the proposed action, and the FCC evaluates whether the proposed action serves the public interest, convenience,

and necessity. See id. The FCC has promulgated filing guidelines for international Section 214 applications, which apply to companies seeking to provide

U.S.-international telecommunications service. See

generally 47 C.F.R. Part 63. Any company that has

received FCC authorization to provide U.S.-international telecommunications service must obtain prior

Commission approval before consummating a substantial transfer of control or assigning Section 214

authorization to any other company. See id. § 63.24;

International Section 214 Application Filing Guidelines, FCC, https://tinyurl.com/458sudyx (last updated May 14, 2015).

Then-Chairman Pai acted against China Telecom

under Section 214, with a unanimous FCC revoking

its domestic and international Section 214 authority

17

due to national security concerns. In re China Telecom (Americas) Corp., 36 FCC Rcd. 15966, ¶¶ 1-14, 65

(2021). China Telecom, the FCC found, was “subject

to exploitation, influence, and control by the Chinese

government” and was “highly likely to be forced to

comply with Chinese government requests without

sufficient legal procedures subject to independent judicial oversight.” Id. ¶¶ 2, 44. The FCC also determined that China Telecom’s services provide the company “with access to U.S. telecommunications infrastructure and U.S. customer records,” opportunities

to “access [and] disrupt U.S. communications,” and

“the opportunity to facilitate espionage and other activities harmful to the interests of the United States.”

Id. ¶ 68.

The D.C. Circuit rejected a challenge to that order,

deferring to the FCC’s expertise and citing the same

national security concerns underlying the Divestiture

Act. “China has augmented the level of state control

over the cyber practices of Chinese companies,” the

court below explained, and recent laws “require[] Chinese companies to cooperate with state agencies on

cybersecurity supervision and inspection.” China Telecom (Americas) Corp. v. FCC, 57 F.4th 256, 263 (D.C.

Cir. 2022). “The Office of the Director of National Intelligence now warns of cyberattacks by the Chinese

government and the potential use of Chinese information technology firms as systemic espionage platforms.” Id. at 262-63. “The FBI [likewise] warns that

no country poses a broader, more severe intelligence

collection threat than China.” Id. at 263.

The FCC also revoked the Section 214 domestic

and international authority of Pacific Networks Corporation and its subsidiary. In re Pacific Networks

Corp. and ComNet (USA) LLC, 37 FCC Rcd. 4220,

18

¶¶ 1-2 (2022). As with China Telecom, the FCC determined that the companies were “subject to exploitation, influence, and control by the Chinese government and are highly likely to be forced to comply with

Chinese government requests without sufficient legal

procedures subject to independent judicial oversight.”

Id. ¶¶ 2, 44-45. The Commission also found that the

companies’ “access to U.S. telecommunications infrastructure and sensitive U.S. consumer information”

facilitated “numerous opportunities to access, monitor, store, and in some cases disrupt and/or misroute

U.S. communications.” Id. ¶ 74.

C.

The United States Has Addressed the

Threat Posed by China’s Corporate

Control Through the CFIUS Process.

CFIUS, established by President Ford in a 1975

Executive Order, is associated with the Defense Production Act, which equips the President with certain

authorities over domestic industry and empowers him

in matters of national security. See 50 U.S.C. §§ 45014568; Alexandra G. Neenan et al., The Defense Production Act of 1950: History, Authorities, and Considerations for Congress at 1, Cong. Rsch. Serv. (Oct. 6,

2023). In the Act, Congress declared that “the security of the United States is dependent on the ability of

the domestic industrial base to supply materials and

services for the national defense and to prepare for

and respond to military conflicts, natural or mancaused disasters, or acts of terrorism.” 50 U.S.C.

§ 4502(1). Specifically, the Act “provides the President with an array of authorities to shape national

defense preparedness programs and to take appropriate steps to maintain and enhance the domestic industrial base.” 50 U.S.C. § 4502(4).

19

Notably, the Defense Production Act extends beyond military preparedness to broadly safeguarding

Americans from threats and emergencies. See 50

U.S.C. §§ 4501-4568; see Neenan et al., supra, at 1, 4.

For example, the Act enables the President to act on,

among other things, mergers, acquisitions, or takeovers “by or with any foreign person that could result

in foreign control of any United States business” and

“that threaten[] to impair the national security of the

United States.” 50 U.S.C. §§ 4565(a)(4)(B)(i), (d).

CFIUS is an interagency committee chaired by the

Secretary of the Treasury that assists the President

in carrying out certain national security-related obligations under the Defense Production Act, facilitating

the President’s oversight of potential national security risks that arise from certain transactions involving foreign direct investment in U.S. businesses. See

50 U.S.C. § 4565(k); CFIUS, Department of Treasury,

https://tinyurl.com/fvbyxkrk (last visited Dec. 26,

2024); Cathleen D. Cimino-Isaacs & Karen M. Sutter,

CFIUS at 1, Cong. Rsch. Serv. (May 17, 2024); Neenan et al., supra. In particular, CFIUS reviews and

investigates whether foreign investment transactions

could “impair U.S. national security,” for example,

giving foreign government access to, or influence over,

cutting-edge U.S. technology, key infrastructure, or

sensitive data about U.S. persons. See Neenan et al.,

supra, at 17; Cimino-Isaacs & Sutter, supra. CFIUS

jurisdiction includes the review of mergers, acquisitions, and takeovers that could result in foreign control of a U.S. business; certain noncontrolling investments in businesses involved in critical technologies,

critical infrastructure, or sensitive personal data; and

certain real estate transactions. See Neenan et al.,

supra, at 17; 50 U.S.C. § 4565.

20

CFIUS can clear or suspend a transaction, refer a

transaction to the President, or enter into or impose

deal conditions or requirements “to mitigate any risk

to the national security of the United States that

arises as a result of the covered transaction.” 50

U.S.C. § 4565(l)(1)-(3); see Stephen P. Mulligan, Restricting TikTok (Part I): Legal History and Background, Cong. Rsch. Serv. (Sept. 28, 2023); CFIUS

Overview, Department of the Treasury, https://tinyurl.com/3chadfkj (last visited Dec. 26, 2024).

CFIUS’s decision to pursue one of these options stems

from “a risk-based analysis ... of the effects on the national security of the United States of the covered

transaction.” 31 C.F.R. § 800.102. This analysis involves the evaluation of three key elements: the potential threat posed by the foreign investor or acquirer; national security vulnerabilities manifested

through the U.S. business; and consequences to U.S.

national security that could arise “from the exploitation of the vulnerabilities by the threat actor.” 31

C.F.R. § 800.102(a)-(c). Identifying, and then resolving and eliminating, national security risk is the foundation of the CFIUS mission.

Former Assistant Secretary Feddo oversaw the

implementation of a congressional directive to modernize CFIUS and expand its authorities under the

bipartisan Foreign Investment Risk Review Modernization Act of 2018. Congress found that “the national

security landscape has shifted in recent years, and so

has the nature of the investments that pose the greatest potential risk to national security, which warrants

an appropriate modernization of the processes and

authorities of” CFIUS. Foreign Investment Risk Review Modernization Act of 2018, Pub. L. No. 115-232,

21

Title XVII, Subtitle A, § 1702(b)(4), 132 Stat. 1636

(2019).

Also under Assistant Secretary Feddo’s leadership, CFIUS scrutinized ByteDance’s 2017 acquisition of Musical.ly, a popular social media application,

which was acquired by ByteDance and merged with

its TikTok application. On or around late 2019,

CFIUS undertook an investigation of ByteDance’s acquisition to assess the national security risks arising

from the transaction, including the potential for U.S.

user data access by the PRC government.

Separate from the CFIUS authorities, in early August 2020 then-President Trump issued an Executive

Order under the International Emergency Economic

Powers Act, to address national security threats

posed by TikTok. Addressing the Threat Posed by TikTok, and Taking Additional Steps To Address the National Emergency With Respect to the Information and

Communications Technology and Services Supply

Chain, Exec. Order No. 13942, 85 Fed. Reg. 48637

(Aug. 6, 2020). He observed TikTok’s data collection

“threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information—potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” Id. As a result of this Executive Order, the Secretary of Commerce prohibited

certain transactions with TikTok, such as the provision of content delivery network and hosting services.

Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat

Posed by TikTok and the National Emergency with

Respect to the Information and Communications

22

Technology and Services Supply Chain, 85 Fed. Reg.

60061 (2020); see Mulligan, supra.

Shortly thereafter, on August 14, 2020, following

CFIUS’s referral of its national security assessment

of the ByteDance acquisition to the President, President Trump invoked his authority under both the

Constitution and the Defense Production Act to order

ByteDance to divest “all interests and rights in any

tangible or intangible assets or property” of TikTok in

the United States. See Regarding the Acquisition of

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

further ordered the divestment of all interests and

rights in “any data obtained or derived from TikTok

application or Musical.ly application users in the

United States.” Id. In justifying these actions and

others regarding TikTok in the United States, the

President cited to “credible evidence” that ByteDance

could “take action that threatens to impair the national security of the United States.” Id.

After a change in Administrations, President

Biden on June 9, 2021, revoked the August 6, 2020

Executive Order but, to date, has kept in effect the

August 14, 2020 presidential order requiring divestment of TikTok’s U.S. assets and U.S. person data.

See Thomas Feddo, Three Years’ Delay to Rein in TikTok, RealClear Defense (Feb. 15, 2023), https://tinyurl.com/32vbtmse; Protecting Americans’ Sensitive

Data from Foreign Adversaries, Exec. Order No.

14034, 86 Fed. Reg. 31423 (June 9, 2021). The national security concern about TikTok, therefore, is the

“considered judgment of two presidents.” Feddo, supra. And over the course of these two presidencies,

“TikTok has only grown in influence and further insinuated itself into American life.” Id.

D.

23

Other Former Government Officials,

Politicians, and Academics Agree.

Other former government officials and academics

share amici curiae’s concerns about PRC corporate

ownership and the magnitude of the threat it poses to

national security. The Vandenberg Coalition, a group

that includes many former high-ranking government

officials, has argued that the CCP represents perhaps

the greatest threat to United States national security.

See Vandenberg Coalition, Around the World: Essential Foreign Policy Issues for Leaders at 1 (Oct. 2022).

For example, the “CCP has purchased American

farmland and infrastructure near military bases for

espionage purposes,” “advanced China’s military and

technological capabilities through intellectual property theft,” and “catalyzed America’s synthetic opioid

crisis by flooding our country with fentanyl.” Vandenberg Letter. The Vandenberg Coalition estimates

that China’s theft of American intellectual property

costs the United States around $600 billion every

year. See Vandenberg Coalition, Myth vs. Fact, Protecting Americans from Foreign Adversary Controlled

Applications Act at 1 (Apr. 10, 2024).

TikTok is a particularly effective tool for the CCP

to achieve its geopolitical objectives. China’s corporate control makes TikTok in particular “extremely

vulnerable to CCP demands.” Wang, supra. As the

Vandenberg Coalition has explained, companies

“must comply” with PRC “government requests [for]

company data, networks, or related information.”

Vandenberg Letter. And ByteDance is no exception.

Id. In short, China’s industry and the CCP work together to reach CCP-determined goals. See Final

Brief for FCC and United States at 76, Huawei Techs.

24

USA, Inc. v. FCC, No. 19-60896 (5th Cir. 2020) (describing government authorities’ belief that China

significantly threatens national security).

Recognizing the danger, in 2022 Democratic Senator Mark Warner and Republican Senator Marco Rubio sent a letter to the Federal Trade Commission

(“FTC”) expressing concerns over China’s collection of

Americans’ data through TikTok. Letter from Sens.

Mark Warner & Marco Rubio, to Chairwoman Lina

Khan, FTC (July 5, 2022). This came after TikTok

previously settled with the FTC to pay $5.7 million

over allegations that the company illegally collected

personal information from children. Video Social Networking App Musical.ly Agrees to Settle FTC Allegations That it Violated Children’s Privacy Law, FTC

(Feb. 27, 2019), https://tinyurl.com/yc3bm84a. And

just this summer, the FTC referred a new complaint

to DOJ indicating new or ongoing TikTok violations of

data-privacy practices. Statement of the FTC in the

Matter of ByteDance/Musical.ly, (June 18, 2024),

https://tinyurl.com/4tc9jxr3.

FBI Director Christopher Wray similarly explained before Congress that ByteDance “is, for all intents and purposes, beholden to the CCP.” Worldwide

Threats Assessment: Hearing Before the U.S. Senate

Select Committee on Intelligence (Mar. 11, 2024). He

explained that the CCP “influence operation” is “extraordinarily difficult to detect, which is part of what

makes the national security concerns represented by

TikTok so significant.” Id. Director Wray also recently explained that TikTok allows the Chinese government to “manipulate content” and “collect data

through [TikTok] on users which can be used for traditional espionage operations.” Christopher Wray,

2022 Josh Rosenthal Memorial Talk, University of

Michigan

(Dec.

nyurl.com/49vw9bhn.

25

2,

2022),

https://ti-

The public shares these concerns. According to a

2023 Pew Research Center survey, most Americans

believe that TikTok is a national security threat and

are concerned about TikTok’s data collection practices. Colleen McClain, Majority of Americans say

TikTok is a threat to national security, Pew Research

Center (July 10, 2023), https://tinyurl.com/4tp8sd8x.

II.

Viewed in This Light, TikTok’s Various

Objections to the Divestiture Act Are

Misplaced.

Because the Divestiture Act targets the serious

national security threats that TikTok poses, TikTok’s

attempt to mischaracterize how the Act operates and

what it is designed to accomplish fails.

TikTok argues that the Act “discriminate[s] based

on speaker and content.” TikTok Br. 4. But the Act

does no such thing.

Rather, the Act targets

ByteDance’s conduct and is based on the government’s longstanding concerns about that conduct. See

App. 30a (slip op. 30) (Congress’s effort to “counter the

PRC’s efforts to collect great quantities of data about

tens of millions of Americans” “does not reference the

content of speech or reflect disagreement with an idea

or message,” and Congress’s effort to “limit the PRC’s

ability to manipulate content covertly on the TikTok

platform” merely aims to “preclude a foreign adversary from manipulating public dialogue.”). The Act

fits comfortably alongside the existing regulatory

structures discussed in this brief that similarly aim to

tackle evolving national security risk.

26

The Act does not regulate speech based on “who

the speaker is and what they speak about.” TikTok

Br. 33. Indeed, the Act is utterly indifferent to who

the speaker is or what the speech is. The Act is indifferent even as to whether the speech occurs on TikTok

or a different platform, so long as the platform does

not operate under the authority of the CCP. See App.

30a (slip op. 30) (the Act “narrowly addresses foreign

adversary control of an important medium of communication in the United States” and “does not suppress

content or require a certain mix of content”). What

the Act is not indifferent to is whether the CCP has

the ability to spy on Americans and then use their

data against them. See App. 32a (slip op. 32) (the Act

was “carefully crafted to deal only with control by a

foreign adversary”); Public Redacted Br. for Resp’t at

66-67 (“The restriction on TikTok’s ownership reflects

the considered judgment of the political branches that

China has the capability and incentive to use the application to amass massive amounts of U.S. user data

and to exert covert influence over U.S. affairs in direct

contravention of U.S. interests.”). That reflects the

government’s longstanding and salutary approach to

national security.

Similarly, the Act’s naming of TikTok does not

“single[] out TikTok for disfavor” or “punishment.”

See TikTok Br. 3, 61-68. Congress and the Executive

Branch have routinely identified in legislation or regulation specific companies under China’s control that

pose particular national security risk. That is true for

Huawei, ZTE, Dahua, Hikvision, and Hytera. See supra. In these other instances, just as with the Divestiture Act, Congress put in place a process for future

designations in addition to naming particular threats.

27

See supra. A practice that spans across many companies and reflects particular risk assessments does not

single anyone out for punishment. The focus, rather,

is on present risk based on a national security assessment made by members of Congress and the Executive Branch from different parties and different administrations. See App. 58a (slip op. 58) (“[T]he 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.”).

As noted above, statutes and regulations of this

kind have repeatedly been upheld by the courts. In

Huawei, the Fifth Circuit sustained the FCC’s designation of Huawei and ZTE as covered companies.

Huawei, 2 F.4th at 427. In Hikvision v. FCC, the

court below rejected Hikvision and Dahua’s challenge

to the FCC’s designation of their products on its list

of covered equipment. See 97 F.4th at 944. And in

2020, a federal district judge directly rejected a billof-attainder challenge to the NDAA. Huawei, 440

F.Supp.3d. Despite naming Huawei, the NDAA did

not impose “punishment.” Id. at 630-50. “China is

one of the leading threats” to the United States’ cybersecurity, the court observed. Id. at 641 (cleaned

up). And addressing a national security threat in this

way is a “legitimate regulation of conduct.” Id. at 636.

The same is true here.

When Congress legislates pursuant to its enumerated powers, it may advance any purpose not constitutionally prohibited. See McCulloch v. Maryland, 17

U.S. 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

28

the letter and spirit of the Constitution, are Constitutional.”). Indeed, the Constitution “entrust[s] the law

making power to the Congress alone.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952).

The Divestiture Act, which regulates TikTok’s interstate and international commercial activity, is an

unextraordinary exercise of Congress’s lawmaking

power. See, e.g., U.S. Const. art. I, § 8, cl. 3 (foreign

and interstate commerce powers), cl. 18 (Necessary

and Proper Clause). Indeed, because the Act regulates domestic activity, it stands at the core of Congress’s legislative power. McCulloch, 17 U.S. at 421;

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.”). Congress’s decision to determine that TikTok presents sufficient

national security risk to require divestiture, rather

than leaving that determination to executive judgment, does not offend our constitutional scheme.

CONCLUSION

This Court should affirm.

29

Respectfully submitted,

THOMAS M. JOHNSON, JR.

Counsel of Record

JEREMY J. BROGGI

MICHAEL J. SHOWALTER

STEPHANIE RIGIZADEH

WILEY REIN LLP

2050 M Street N.W.

Washington, D.C. 20036

tmjohnson@wiley.law

(202) 719-7000

December 27, 2024

Counsel for Amici Curiae