TikTok Ban Reveals Congress’ Power in Place of CFIUS Limits
The new law calling for TikTok's Chinese parent company to sell the app or get banned in the U.S. reflects the limits of national security reviews and shows how Congress and the president may bolster, or circumvent, them going forward.
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Former President Donald Trump's executive order following TikTok's first CFIUS review was based on his authority under the International Emergency Economic Powers Act. ByteDance and prominent users of the app successfully petitioned federal courts to enjoin the order, citing free speech limitations on that authority known as the Berman Amendments.
No such carveouts are attached to the new law, which also appears to offer no concessions for companies that have previously been vetted.
"I don't see any safe harbor for something that's cleared CFIUS," said Blank Rome LLP partner Anthony Rapa.
At the same time, the law's requirement that the president identify a significant national security threat related to the target company appeared to mitigate its potential to be exploited as an "end run" around CFIUS, Rapa said.
"What this seems to be doing is giving the president another bite at the apple," he said.
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"TikTok Ban Reveals Congress’ Power in Place of CFIUS Limits," by Jennifer Doherty was published in Law360 on April 26, 2024.