At its core, the PFACAA allows the government to label any business with even tenuous ties to foreign adversaries as a “foreign adversary-controlled application.” Businesses risk falling under this designation if:
- They have more than 20% ownership by individuals or entities in designated adversary countries.
- They are deemed “subject to the direction or control” of foreign adversaries—a vague standard open to broad interpretation.
- They operate platforms enabling user-generated content, from social media to review sites, making them susceptible to government scrutiny.
This law doesn’t just apply to high-profile platforms like TikTok. Any app or service with user-generated content—whether a niche video-sharing site, an e-commerce platform, or a business review aggregator—could face restrictions.
Companies with no direct foreign ties could find themselves caught in the PFACAA’s expansive net through contractual partnerships, international investments, or mere allegations of foreign influence.
The ACLU Agrees
In its amici brief opposing the PFACAA, the ACLU warned of its chilling implications for free speech. The Act imposes burdens on targeted businesses and millions of users whose access to digital platforms may be curtailed. By allowing the government to ban a platform based on speculative risks, the law empowers Congress to suppress speech it finds inconvenient or objectionable.
The ACLU’s arguments highlight three critical concerns:
- Content-Based Discrimination: The PFACAA singles out platforms based on the type of content they enable, violating the First Amendment’s protections against content-based regulation.
- Chilling Effect: The law’s vague standards discourage businesses from engaging in speech that might draw government scrutiny, chilling innovation and expression.
- Precedent for Broader Overreach: The PFACAA creates a dangerous precedent for government control over private enterprises, potentially extending beyond apps to other industries like fintech, media, or e-commerce.
How the PFACAA Could Expand
The Act’s vague definitions and broad powers invite misuse. Consider these scenarios:
- A global e-commerce platform with international shareholders could be targeted for allegedly exposing sensitive user data to foreign entities.
- A messaging app might face restrictions for failing to meet undefined data isolation standards despite no evidence of wrongdoing.
- Foreign adversaries could accuse platforms that enable political discourse or controversial viewpoints of “covert manipulation,” justifying their removal.
This expansion potentially threatens tech giants and smaller businesses reliant on cross-border operations or partnerships. If left unchecked, the PFACAA could evolve into a tool for economic protectionism and censorship, weaponized to suppress competitors or dissenting voices under the guise of national security.
What Businesses Must Know About Compliance
If the PFACAA survives legal challenges, businesses must prepare for its potential application. Here’s what companies should do:
- Audit Ownership and Operations: Assess ownership structures and relationships to identify potential risks under the PFACAA.
- Enhance Data Security: Adopt robust data isolation practices, ensuring sensitive user data remains protected and inaccessible to foreign entities.
- Document Transparency: Prepare for mandatory disclosures, including content moderation policies and data-handling procedures.
- Engage Stakeholders: Involve legal, cybersecurity, and policy experts to ensure compliance with evolving interpretations of the law.
Why Overturning the PFACAA Matters
Overturning the PFACAA isn’t just about saving TikTok—it’s about protecting fundamental freedoms and limiting government overreach. By targeting a single company, Congress has opened the door to broader censorship and regulation of private enterprises. Allowing this law to stand would embolden future efforts to suppress speech and control industries under the pretense of security.
The PFACAA is a blunt instrument that sacrifices constitutional freedoms for speculative fears. There are less intrusive ways.
