alt Hacker NewsThe interesting bits from the text[1], relative to the now flagged sibling
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(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.—The term “foreign adversary controlled application” means a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate), by—
(A) any of—
(i) ByteDance, Ltd.;
(ii) TikTok;
(iii) a subsidiary of or a successor to an entity identified in clause (i) or (ii) that is controlled by a foreign adversary; or
(iv) an entity owned or controlled, directly or indirectly, by an entity identified in clause (i), (ii), or (iii); or
(B) a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—
(I) a public notice proposing such determination; and
(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture.
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The way I read this is that Congress is bootstrapping the law with its own finding that ByteDance, Ltd/TikTok are Foreign Adversary Controlled Applications, but then, in (3)(B), the President is responsible for determining any other entities this law should cover given previously stated parameters (what they mean by "covered entity" here), using the procedure it then provides.
I believe that addresses the concern about this being a "Bill of Attainder".
Edit: Obviously IANAL, but it also doesn't appear that this issue of this being a Bill of Attainder was raised by TikTok, nor was it considered in this opinion. Perhaps they will do so in a separate action, or already have and it just hasn't made its way to the court(?), but if it were such a slam dunk defense, you think their expensive lawyers would have raised it.
[1]: https://www.congress.gov/bill/118th-congress/house-bill/7521...
Replies
> I believe that addresses the concern about this being a "Bill of Attainder".
The definition of "foreign adversary controlled application" in the bill is explicit in including either (a) this specific list of organizations, OR (b) other organization that might meet certain criteria later. I'm not sure how the existence of (b) addresses the concern that (a) amounts to a bill of attainder.
This analysis seems reasonable, but I think the simpler explanation blatant corruption, since the legislation is moving judicial responsibility from from the judicial branch to the legislature and president, and a great deal of money is involved.
The Supreme Court has made only very narrow rulings around Bills of Attainder.
To me this bill seems problematic on that front in two directions. One is that it explicitly names a target of the ban. Secondly, it grants the president power to arbitrarily name more. Similar to how a King can declare certain Subjects be Attainded on His Whim.
But the petitioners (TikTok) did not raise this issue so the court did not have to decide on it. Instead they focused on the first amendment issue, which seems like a loser -- there is no speech present on TikTok that the law bans; any content on TikTok can be posted to red-blooded American apps like shorts or reels so the speech itself is not affected.