Terence Check (Ohio State University, John Glenn School of Public Affairs & Cleveland State University College of Law) has posted Are TikTok “Bans” a Bill of Attainder?, 26 Tul. J. Tech. & Intell. Prop. ___ (2024), on SSRN. Here is the abstract:
Are the growing number of TikTok “bans” prohibited under the Bill of Attainder Clause of the U.S. Constitution? Probably not, but this conclusion is not as obvious as one might think. Accordingly, this brief Article examines one of the most pressing national security issues of the current moment: increasing legislative activity at federal and state levels to ban TikTok, and whether such bans would comport with the Constitution’s prohibitions against “bills of attainder.” TikTok is a hugely popular social media application owned by ByteDance, a technology company located in the People’s Republic of China (PRC). Due to these deep ties to the PRC, a growing number of legislators, governors, and federal government agencies have taken steps to limit the reach of TikTok within the United States on security grounds. The security concerns used to justify the bans fall into two general categories. First, there is the risk of misuse of the personal, demographic, and social data gathered by TikTok. Second, there is the opportunity that TikTok provides to the PRC to disseminate Chinese Communist Party (CCP) propaganda. Within the United States, these concerns pit state and federal government interests against the extensive economic activity of a $400 billion corporate behemoth, making for a potential legal battle of great societal significance. The particularity of these government actions regarding TikTok may seem to raise questions about the Constitution’s Bill of Attainder Clause, which is designed to prevent such punishments that arose in an unseemly era of legislative pronouncements of guilt motivated by the caprice of kings and politicians. This Article examines whether TikTok bans would constitute bills of attainder by analyzing Kaspersky Laboratory v. DHS, which reviewed a Congressional ban on using Kaspersky Labs products by the federal government. Kaspersky is a leading case in bill of attainder jurisprudence. It presents a similar fact pattern involving foreign technology and government action to prevent security threats and accordingly has great significance for the current moment. This Article concludes that not only are TikTok bans as currently conceived not bills of attainder (because they do not punish) but also that the ahistorical and atextual judicial expansion of the range of laws covered by the Bill of Attainder Clause may become untenable in an age of complex nation-state competition where nimble legislative interventions for security matters beyond TikTok may become increasingly necessary.
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