APPLICATION OF PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT TO TIKTOK
This executive order temporarily suspends enforcement of the Protecting Americans from Foreign Adversary Controlled Applications Act's restrictions on TikTok for 75 days.
The order cites national security concerns and the Act's unfortunate timing, which became effective a day before the new President's inauguration.
The President aims to assess national security implications, explore solutions, and prevent an immediate shutdown of the platform while safeguarding US interests, utilizing the 75-day period to achieve these goals.
Arguments For
- Intended benefits: Provides time for the new administration to thoroughly assess the national security risks posed by TikTok and negotiate a resolution that balances national security with the platform's widespread use.
- Evidence cited: The Executive Order cites the Act itself (Pub. L. 118-50, div. H) and the President's constitutional responsibility for national security and foreign policy.
- Implementation methods: The Attorney General is directed to refrain from enforcing the Act for 75 days and to issue guidance clarifying this instruction.
- Legal/historical basis: The order is based on the President's constitutional authority and the unusual timing of the Act's enforcement, which began a day before the new administration took office.
Arguments Against
- Potential impacts: The delay could allow TikTok to continue operating, potentially exposing US users to national security risks during this period.
- Implementation challenges: Ensuring complete compliance by the Department of Justice and preventing any indirect enforcement attempts might prove difficult.
- Alternative approaches: Alternative solutions to address national security concerns related to TikTok could include stricter data security regulations or working with other countries to implement international standards for digital safety.
- Unintended effects: The delay may lead to uncertainty and legal challenges, potentially affecting other related companies or applications.
APPLICATION OF PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT TO TIKTOK
By the authority vested in me as President by the Constitution and the laws of the United States of America it is hereby ordered:
This opening section states the executive order's title and asserts the President's authority to issue it based on the US Constitution and laws.
Section 1. Policy. The Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) (Pub. L. 118-50, div. H) regulates “foreign adversary controlled applications,” specifically those operated by TikTok and any other subsidiary of its China-based parent company, ByteDance Ltd., on national security grounds.
This section introduces the Protecting Americans from Foreign Adversary Controlled Applications Act (PFAACAA) and its focus on applications controlled by foreign adversaries, particularly those run by TikTok and its parent company.
The Act's stated basis is addressing national security concerns.
Section 2(a) of the Act prohibits entities from distributing, maintaining, or updating certain defined foreign adversary controlled applications within the territory of the United States by providing (A) services for such distribution, maintenance, or updates by means of an online mobile application store or other marketplace; or (B) internet hosting services to enable the distribution, maintenance, or updating of such applications. Section 2(g) of the Act defines “Foreign Adversary Controlled Application” to include websites, desktop applications, mobile applications, and augmented or immersive technology applications operated directly or indirectly by ByteDance Ltd. or TikTok. Under section 2(a) of the Act, the prohibitions of the Act with respect to these entities became effective on January 19, 2025.
This section details the specific prohibitions of Section 2(a) of the PFAACAA. It outlines how the act restricts the distribution, maintenance, and updating of foreign adversary-controlled applications, while also clarifying what constitutes these applications, including various forms like websites and mobile apps.
The section notes the effective date of January 19, 2025.
I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. To fulfill those responsibilities, I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans. My Administration must also review sensitive intelligence related to those concerns and evaluate the sufficiency of mitigation measures TikTok has taken to date.
This section asserts the President's constitutional role in national security and foreign policy.
It explains the intention to consult with advisors, seek a solution that addresses both national security and the platform's user base, and review relevant intelligence and TikTok's mitigation efforts.
The unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States — interferes with my ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect. This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns. Accordingly, I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans.
This section highlights the problematic timing of the Act's enforcement, which started the day before the new President's term.
It explains how this timing hinders the administration's ability to properly assess the situation and negotiate a solution.
Therefore, the President instructs the Attorney General to temporarily halt enforcement for 75 days.
Sec. 2. Action. (a) I hereby order the Attorney General not to take any action on behalf of the United States to enforce the Act for 75 days from the date of this order, to permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok. During this period, the Department of Justice shall take no action to enforce the Act or impose any penalties against any entity for any noncompliance with the Act, including for distributing, maintaining, or updating (or enabling the distribution, maintenance, or updating) of any foreign adversary controlled application as defined in the Act. In light of this direction, even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order.
This section details the specific instruction given to the Attorney General: to refrain from enforcing the PFAACAA concerning TikTok for 75 days.
This pause extends to imposing penalties for any non-compliance during that duration, as well as prior periods.
(b) The Attorney General shall take all appropriate action to issue written guidance to implement the provisions of subsection (a).
(c) I further order the Attorney General to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order.
(d) Because of the national security interests at stake and because section 2(d) of the Act vests authority for investigations and enforcement of the Act only in the Attorney General, attempted enforcement by the States or private parties represents an encroachment on the powers of the Executive. The Attorney General shall exercise all available authority to preserve and defend the Executive’s exclusive authority to enforce the Act.
This section outlines further instructions for the Attorney General.
Subsection (b) mandates the creation of written guidance for implementing the 75-day enforcement halt; subsection (c) directs the issuing of letters to providers clarifying non-liability for past actions; subsection (d) emphasizes the Attorney General's exclusive authority to enforce the Act and prohibits state or private party enforcement to prevent conflicts.
Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
This section includes general provisions.
Subsection (a) clarifies that the order does not affect existing executive department or agency authority.
Subsection (b) notes the order's implementation depends on legal compliance and funding availability.
Subsection (c) states that the order does not create any legally enforceable rights.
THE WHITE HOUSE,
January 20, 2025.
This section simply indicates the date and location of the order's issuance.