Last week, as the House passed the TikTok divestiture bill with overwhelming support, a few highly influential tech leaders shrugged off concerns over espionage and trade reciprocity, and argued this was the first step to Biden banning Elon’s X. While the letter of the law explicitly indicates nothing of the sort is possible, detractors argue ambiguous phrasing of the bill leaves an opening for abuse. Now, the bill’s explicit naming of four hostile countries, a list itself subject to congressional vote, doesn’t seem that ambiguous to me, and legal precedent would indicate interpretation of the bill as fairly straightforward. But we are living in a world post-Covid, and, as David Sacks’ notes, Jack Smith’s pursuit of Trump in the bank-shot fraud case indicates legal precedent has never mattered less. Natural questions follow: can any piece of legislation now be interpreted in any way, at any time, in favor of our despotic government’s whims? And if this is the case, if things are truly this bad, is a policy in favor of a massively popular Chinese spy app enough to protect us? My sense is probably not, and the implicit call here is for some kind of total revolution, which… well, an interesting discussion for another day.

In the meantime, a thought experiment: if the letter of the law does still matter in America, what can this TikTok bill actually do? Is the ambiguous reading of “direction or control” popular among the company’s unofficial legal team legitimate? Does the bill truly open Elon’s Twitter, or any other social media company unpopular with the state, to federal attack? I think the question would benefit from some familiarity with the language of bills like this in general, how they’re interpreted, and why. I reached out to Mike Wacker, a former tech fellow in Congress, to break the other side down.

—Solana

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On a 352-65 vote, the House passed a bill that would force the Chinese Communist Party (CCP) to divest TikTok; if the CCP refused to divest, TikTok would be banned. But could this bill also be used to target Elon Musk and Twitter? As someone who understands both the tech and tech policy angles, I can tell you the answer is no.

Learning how to read a bill is different than learning how to read (though it’s still easier than learning how to code), and to be blunt, many of the bill’s critics don’t know how to read a bill. Laws may not be as precise as code, but legal language is still much more precise than ordinary language.

When reading a bill, the key point to keep in mind is that the legal meaning of a word or phrase is often different from its common meaning. (Many bad arguments against the bill rely on the common meaning of a word or phrase instead of its legal meaning.) When we’re dealing with a phrase like “foreign adversary country” or “controlled by a foreign adversary,” remembering that key point is crucial.

Some phrases will have explicit definitions — key components of any bill. The President, for example, can’t arbitrarily label a country a “foreign adversary country.” In the TikTok bill, the phrase has an explicit definition: “The term ‘foreign adversary country’ means a country specified in section 4872(d)(2) of title 10, United States Code.” If you read section 4872, you will see it lists four countries: China, Russia, Iran, and North Korea.

If you wanted to add a country to that list, Congress would have to pass a law that amends 10 USC § 4872(d)(2). Of course, this would involve drafting a bill, which must then be approved by both the House of Representatives and the Senate, and subsequently signed into law by the President (this is not even to mention the potential Judicial check). So the President can’t just add nations to the foreign adversary list willy-nilly. Jokes about Justin Trudeau aside, Canada legally is not a foreign adversary country. So, no, the TikTok bill can’t be used to target Rumble — headquartered in Canada — as people have begun worrying about on X.

Another key phrase in the bill is “controlled by a foreign adversary.” If a social media app isn’t controlled by a foreign adversary, the President has no power over the app — even if he dubiously labels it a “national security threat.” “Controlled by a foreign adversary” also has an explicit definition:

The term “controlled by a foreign adversary” means, with respect to a covered company or other entity, that such company or other entity is—

(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;

(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or

(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).

Subparagraphs (A) and (B) would apply when a social media app is owned by a Chinese, Russian, Iranian, or North Korean entity. For example, they would apply to ByteDance, TikTok’s parent company, which is headquartered in China. Under Chinese law — for example the 2017 National Intelligence Law — ByteDance must obey the dictates of the CCP.

Subparagraphs (A) and (B) are necessary but not sufficient. China, for example, will argue that while ByteDance is a Chinese company, TikTok is an American company. But since TikTok is still “subject to the direction or control” of its parent company ByteDance, however, subparagraph (C) would kick in. TikTok is legally controlled by a foreign adversary according to its own country's laws.

(Separate from this definition, another provision of the law – section (g)(3)(A) — directly states that it applies to both ByteDance and TikTok.)

The bill’s critics have focused somewhat obsessively over subparagraph (C), arguing the phrase “subject to the direction or control” is too vague and broad. For example, could an anti-Elon lawyer successfully argue Elon Musk is subject to the direction of the CCP?

I’ll not whitewash Musk’s connections to China here. To be clear, he’s deeply entangled in China via Tesla. When pressed by Bari Weiss, Musk conceded that Twitter would carefully choose its words regarding China, and said there are “two sides” to China’s genocide of the Uyghurs.

However you might interpret these facts, though, Musk is still not legally subject to the direction of the CCP.

While “direction” does not have an explicit definition in the bill, a legal rule of thumb still determines how you read a law: the canons of construction. Most of the canons are simply common sense rules.

For example, in the phrase “cars, trucks, motorcycles, or other vehicles,” “other vehicles” would only include land-based vehicles; it would not include airplanes. This commonsense rule has a fancy legal name, ejusdem generis: “A general term that follows an enumerated list of more specific terms should be interpreted to cover only ‘matters similar to those specified.’”

If you remember learning about “context clues” in grade school, they also have a fancy legal name, the whole-text canon: “Courts ‘do not . . . construe statutory phrases in isolation; [they] read statutes as a whole.’”

For the TikTok bill, it would be obscene to interpret the word “direction” in isolation. Instead, it’s rightly understood in the context of the phrase “direction or control,” which itself needs to be parsed in the context of the entire definition — one that's about foreign ownership.

A more likely interpretation is that a social media app is “controlled by a foreign adversary” when its foreign ownership is obscured through layers of indirection such as a shell corporation. In my view, nebulous claims that Musk is under the direction of the CCP can't be interpreted as him being legally controlled by a foreign adversary.

"Direction or control" is not some nebulous new phrase, either. It has appeared in several other laws, such as the Foreign Agent Registration Act (FARA). In the same sense that software engineers will often reuse code (rather than reinvent the wheel), lawmakers will often reuse terms and phrases from other laws.

“Direction or control” is battle-tested; we have a good idea of what it means — and does not mean — from other laws that already use it, and the court cases that interpret those laws. For example, United States v. Rafiekian clarified that one is not subject to direction or control “simply by acting in accordance with foreign interests or by privately pledging allegiance.”

If the phrase “direction or control” will be abused, critics should point to a court case where such abuse occurred. If critics of the bill can’t summon such evidence, it's reasonable to be skeptical of their argument.

Adversaries will obviously be creative when trying to circumvent the law. They may, for example, only acquire a minority stake of 10% in a company (the law requires a 20% stake), but also acquire a majority of the voting rights. “Direction or control” strikes the right balance: it provides the flexibility to deal with creative arrangements like these, but it's also a well-understood term with precedent.

Could the TikTok bill be used to target Elon Musk and Twitter? If you don’t know how to read a bill, there are many specious arguments that could trick you into thinking that the answer is yes. If you know how to read a bill, though, the answer is a clear no.

— Mike Wacker