TikTok and the "Foreign Adversary"
The Wartime Logic of the TikTok Ban Invites Authoritarianism
I recently had an exchange on Bluesky with Nilay Patel, the editor-in-chief of The Verge. We disagreed about the extent to which the Protecting Americans from Foreign Adversary Controlled Applications Act — known colloquially as the TikTok ban — represents a threat to free speech. Patel isn’t concerned because he doesn’t believe the threatened ban will take effect; a US buyer will swoop in, purchase the platform, and “that will be a fine outcome.”
I’m not at all reassured by that possibility. After all, using the threat of a ban to compel a sale is still a violation of the First Amendment. This is intuitive. If a mugger holds you up at gunpoint, they don’t get away with the crime scot-free simply because they didn’t pull the trigger after you complied with their demands. The law recognizes that the threat of bodily injury enhances the grievousness of the crime. To extend the metaphor, the ban is the gun pointed at TikTok to compel a taking, the sale. Even if the ban doesn’t happen, it doesn’t negate the power of the threat to free speech.
But let’s set aside that consideration for sake of argument. I want to make the case on entirely practical grounds for why Patel’s blasé attitude is dangerously ill-informed. Simply because, as Patel puts it, he is “a US citizen who founded a US website owned by a US corporation” does not mean that “nothing in this law or decision opens the door to overcoming our First Amendment rights.”
Why? Well, even if a forced sale happens and a TikTok ban is avoided, this law gives the executive branch a remarkable, unilateral, and unprecedented power to harass US companies so long as they are owned by a small number of investors from “foreign adversary” countries.
I suspect when most people hear that the law is about “foreign adversary controlled” companies, they imagine corporations that are headquartered in, fully controlled by, and mostly owned by citizens of countries like China and Russia (which are both on the list). But that’s not at all the case.
The law applies to any company — even those founded or headquartered in the US — with as little as 20% ownership by investors from any foreign adversary nation. That number — 20% — is remarkably low. The threshold needed to be that low because the primary target of the bill was TikTok, and a majority of its parent company, Bytedance, is actually owned by American and other international investors.
But setting the threshold so low gives the US president an unprecedented degree of peacetime economic power over a swathe of American social media and news companies. Bear in mind that foreign investors own more than 40% of all US corporate equity, including hundreds of billions in Chinese direct investment.
Note that reaching that 20% threshold doesn’t require that all 20% ownership come from an individual foreign adversary nation; a combination of investors from any of the proscribed nations hitting 20% is enough to trigger the law.
But it’s not only Chinese or Russian investors that are qualified. The language of the law includes any foreign investor that is “domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country.” In other words, any non-US investor who happens to live in one of these countries or who does much of their business there would count against the threshold. If you’re from, say, Canada, but you live in China, you would count towards the 20% as well. If you’re British, but you work for a Russian-headquartered company, you count too.
Furthermore, while the law explicitly targets TikTok and is readily applicable to many social media platforms, the final language is even broader. Covered companies include any which 1) operate a website, 2) allows user-created accounts for merely viewing text, and 3) has 1 million+ monthly active users. By that definition, it would extend to many major newspapers!
To return to Nilay Patel, I don’t know anything about the foreign ownership percentage of Verge or Vox Media or their user count — they might be too small to qualify — but if the number is in excess of 20%, his company could qualify as a target for a ban or forced sale under the law. If I were him, I’d check with his board about it before January 20th rolls around and these plenipotentiary powers devolve on a new occupant of the Oval Office who has a notorious axe to grind towards dissenting media outlets.
To make a broader point, if you’re worried about the ways that incoming President Donald Trump could abuse his tariff-setting powers to punish his personal enemies and reward his friends, then you should be at least somewhat concerned about the possibility that Trump could bully so many US social media and news companies because of this poorly-written and ill-conceived law. The decision to target a qualified company lies solely with the president, who must only inform Congress of his intent within 30 days.
Let’s now take a step back and think about the phrase being tossed about in the law: “foreign adversaries.” It’s very odd. “Foreign adversary” barely charts on Google Ngrams — with an exception for its use in a popular 1823 edition of Gibbons Decline and Fall of the Roman Empire — until a gradual increase from the 1970s-2000s that suddenly ticked up in the 2010s.
In fact, looking at the books that deploy the term, it’s clear that “foreign adversary” first became popular because it was capacious enough to encompass two separate concepts: our enemies in active wars + our enemies in cold wars. It was an extension of the logic of, first, the Cold War and, then, the War on Terror; it was a way of eliding the fact that the US was engaged in global warfare while technically still at peace.
This was useful. It allowed Congress to avoid its politically-messy Constitutional duty to declare war and shovel it off on the president, who could back paramilitaries, launch cruise missiles, and execute a handful of brush wars or occupations at any given point in time. In other words, “foreign adversaries” is a rhetorical attempt to justify warlike behavior during official peacetime.
But the logic of the “foreign adversary” was not only a means of justifying military action abroad during peacetime but also a way of excusing peacetime violations of civil liberties on the homefront. War creates exceptions to the constitutional order. Violations of civil liberties that would be unthinkable in times of peace are sanctioned by the courts during war, from censorship boards to mass surveillance to a command economy.
There is an inherent threat involved when puncturing holes in the constitutional order: the creeping worry that next time our system of rights won’t snap all the way back after the war is over. Arguably it never fully has. In recognition of that threat, our system places a (theoretically) high bar on the ability of the executive to declare war, a responsibility delegated exclusively to Congress, even if that body has proven itself derelict in that duty.
But labeling countries as “foreign adversaries” requires no declaration of war. There is no legislative oversight over the consequences, no checks and balances. It is a legal fiction — fabricated whole cloth — that is used to justify wartime exigencies during peacetime.
Note that all of the countries currently on the list of covered foreign adversaries — Russia, Iran, North Korea, and China — are either legacy candidates from the Cold War or members of George W. Bush’s “Axis of Evil” during the War on Terror. We are at war with none of them.1
This is the utility of creating the legal category of “foreign adversaries” for the TikTok ban. It allows the federal government to take warlike actions against countries like China — seizing economic assets is a classic wartime measure — during a time of peace. Think of it as preemptive economic warfare.
Indeed, the ban’s definition of foreign adversary is cribbed from a different law passed during the first Trump administration, which was meant to prevent China et al from acquiring rare metals and magnets that had potential military applications, things like “neodymium-iron-boron magnets” and “tantalum alloys.”
It is also preemptive information warfare. One used to have to wait for a declaration of war before the courts would tolerate government censorship; but it turns out that sprinkling “national security” pixie dust on the legal filings is enough to convince the courts to impair the speech of the more than half of Americans who use the TikTok app.
In conclusion, those who pooh-pooh the impact of the TikTok law — regardless of whether they’re confident it won’t come to an actual ban or because they don’t think it could apply to US companies — are wrong. The actual text of the law reveals that it invests the president with unchecked potential control over a swathe of social media and news companies. It grants wartime powers in a time of peace through a novel legal fiction that blurs the distinction between the two.
Regardless of how you feel about TikTok and its Chinese ownership, this law represents a much broader and fundamental threat to the American democratic order.
Yes, yes. Technically we’re still at war with North Korea. Pat yourself on the back.
Another spot on post