{"id":5305,"date":"2026-01-13T20:36:17","date_gmt":"2026-01-13T20:36:17","guid":{"rendered":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/?p=5305"},"modified":"2026-01-13T20:37:20","modified_gmt":"2026-01-13T20:37:20","slug":"tiktok-pafaca-and-the-new-national-security-playbook","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2026\/01\/13\/tiktok-pafaca-and-the-new-national-security-playbook\/","title":{"rendered":"TikTok, PAFACA, and the New National Security Playbook"},"content":{"rendered":"\n

(Source<\/a>)<\/p>\n\n\n\n

TikTok is a defining part of modern American culture, particularly among younger Americans, with 170 million domestic users<\/em><\/a> on the app. Yet, TikTok\u2019s Chinese parent, ByteDance, has received heavy scrutiny from U.S. regulators and officials who are concerned<\/em><\/a> that the Chinese government could steal access to American users\u2019 data or manipulate the platform\u2019s algorithms to influence public opinion to view the Chinese government\u2019s actions in a more favorable light. Responding to concerns about TikTok, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act<\/em><\/a> (PAFACA) in April 2024. PAFACA required ByteDance to divest TikTok\u2019s U.S. operations<\/em><\/a> within 270 days or face a nationwide ban on the app. Congress justified the legislation<\/em><\/a> as an important national security measure, stating they wanted to prevent foreign adversaries from exploiting Americans\u2019 data, rather than regulate free speech.<\/p>\n\n\n\n

PAFACA followed a series of earlier attempts to ban TikTok. In 2020, President Trump issued executive orders under the International Emergency Economic Powers Act<\/em><\/a> (IEEPA) to ban<\/em><\/a> TikTok and WeChat, but these attempts were halted by federal courts due to exceeding statutory and constitutional limits. Similarly, Montana enacted<\/em><\/a> a ban on TikTok in 2023, but was prevented by a federal court for violating the First Amendment. Learning from these past attempts, the authors of PAFACA took a targeted approach. Instead of banning specific forms of content, the law prohibited the operation<\/em><\/a> of foreign adversary-controlled applications with over one million active users unless ownership was transferred to a different company not controlled by an adversary. The Statute defines controlled broadly, covering companies that are headquartered in, have their principles place of business in, or organized under the laws of a foreign adversary country<\/em><\/a>, which are North Korea, China, Russia, and Iran. The Statute also explicitly mentions ByteDance, TikTok, and any subsidiaries or successors.<\/p>\n\n\n\n

TikTok and its parent company, ByteDance, challenged PAFACA, asserting that it amounted to an unconstitutional ban on free speech. In TikTok Inc. v. Garland<\/em>, the U.S. Court of Appeals for the D.C. Circuit upheld the law<\/em><\/a>, holding it addressed national security threats stemming from corporate control rather than users\u2019 free expression. The Supreme Court affirmed that decision in January 2025, finding the statute<\/em><\/a> was narrowly tailored to serve a compelling government interest: preventing the Chinese government from accessing sensitive user data or manipulating digital discourse. In a per curiam <\/em>decision, the Court distinguished<\/em><\/a> between regulating free speech, which is prohibited by the First Amendment, and regulating ownership and digital infrastructure, which can indirectly affect free expression but also support national security objectives.<\/p>\n\n\n\n

The litigation raised several constitutional questions. Under the First Amendment, the Court treated PAFACA as a content-neutral law that incidentally burdens free speech by restricting access to a particular platform. Because PAFACA\u2019s focus was on ownership<\/em><\/a> and not on the substance of user speech, it survived the intermediate scrutiny standard. TikTok\u2019s claim under the Takings Clause also failed, with the Court finding that requiring divestment to continue operating in the U.S. did not amount to the federal government seizing private property, but rather imposed a lawful condition<\/em><\/a> tied to national security objectives.<\/p>\n\n\n\n

The policy debate around TikTok continues to dominate, even after the ban was signed into law. PAFACA supporters claim<\/em><\/a> that foreign media platforms can spread propaganda and spy on users, and preventing such risks justifies PAFACA\u2019s strict language, viewing PAFACA as a legitimate exercise of Congress\u2019s national security powers. On the other side, critics caution<\/em><\/a> that regulation tailored to platforms may lead to government interference in online speech becoming more common. These same critics argue that the logic used to pass the TikTok ban could extend to other platforms based on future geopolitical tensions. <\/p>\n\n\n\n

As of now, TikTok has reached a deal<\/em><\/a> with several investors, including software-focused venture capital firm Andreessen Horowitz (a16z), private-equity firm Silver Lake, and technology giant Oracle to buy a controlling 80% stake in its US operations. The TikTok ban and litigation highlight the tension between national security and free speech. However, this struggle between technology and national security has been prevalent for decades. Congress\u2019 grant of emergency economic in IEEPA, the foreign-investment screening system under CFIUS<\/em><\/a>, and a First Amendment framework that treats these measures as content-neutral conduct regulations provide significant deference when the government claims national-security risks exist. When looking at issue through a broader lens, PAFACA and the Supreme Court\u2019s holding show a willingness to regulate platforms based on security risk rather than content, an approach which could extend far beyond TikTok.


Suggested Citation: <\/em>Akshey Mulpuri, TikTok, PAFACA, and the New National Security Playbook<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter, (Jan. 13, 2026), https:\/\/publications.lawschool.cornell.edu\/jlpp\/2026\/01\/13\/tiktok-pafaca-and-the-new-national-security-playbook\/.

<\/p>\n\n\n\n

About the Author<\/strong><\/p>\n\n\n

\n
\"\"
Akshey Mulpuri is a J.D. Candidate at Cornell Law School in the class of 2027. He graduated from Cornell University with a degree in Industrial and Labor Relations. Aside from his involvement with Cornell Law School\u2019s Journal of Law and Public Policy, Akshey serves as the Vice President of External Affairs for the South Asian Law Student Association and the Academic Chair of the Business Law Society.<\/figcaption><\/figure>\n<\/div>","protected":false},"excerpt":{"rendered":"

(Source) TikTok is a defining part of modern American culture, particularly among younger Americans, with 170 million domestic users on the app. Yet, TikTok\u2019s Chinese parent, ByteDance, has received heavy scrutiny from U.S. regulators and officials who are concerned that the Chinese government could steal access to American users\u2019 data or manipulate the platform\u2019s algorithms…<\/p>\n","protected":false},"author":59,"featured_media":5306,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[18,1733],"tags":[1072,1403,1764],"class_list":["post-5305","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-feature","category-featured-home","tag-national-security","tag-social-media","tag-tiktok"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/5305","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/59"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=5305"}],"version-history":[{"count":2,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/5305\/revisions"}],"predecessor-version":[{"id":5309,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/5305\/revisions\/5309"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/5306"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=5305"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=5305"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=5305"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}