HR 5692: Everything You Need to Know About the Foreign Adversary Controlled Applications Act

Table of Contents#

1. What Is HR 5692? An Overview
2. Key Provisions of the Foreign Adversary Controlled Applications Act
   • Identification of High-Risk Apps
   • Restrictions on Distribution and Use
   • Due Process for App Developers
3. Defining "Foreign Adversary Controlled Applications"
4. Enforcement Mechanisms and Penalties
5. Potential Impact: Users, Businesses, and Developers
6. Criticisms and Controversies
7. Next Steps for HR 5692
8. Conclusion
9. References

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1. What Is HR 5692? An Overview#

HR 5692 is a bipartisan piece of legislation introduced on July 27, 2023, by Representatives Mike Gallagher (R-WI) and Raja Krishnamoorthi (D-IL). Its core purpose is to grant the U.S. government authority to regulate or ban apps that are controlled by foreign adversaries and pose an unacceptable risk to national security.

The bill responds to longstanding concerns about apps like TikTok (owned by China-based ByteDance), which critics argue could be compelled by foreign governments to share user data or spread disinformation. Unlike previous attempts to ban specific apps, HR 5692 creates a broader, systematic framework for identifying and addressing risks from any foreign-controlled app.

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2. Key Provisions of the Foreign Adversary Controlled Applications Act#

The bill outlines three primary pillars of action to mitigate national security risks:

2.1 Identification of High-Risk Apps#

The Secretary of Commerce, in consultation with the Attorney General, Secretary of Homeland Security, Director of National Intelligence, and other relevant agencies, will:

• Develop criteria to identify "Foreign Adversary Controlled Applications (FACAs)" that pose a threat to U.S. national security.
• Maintain a public, updated list of these high-risk apps.
• Conduct regular reviews to assess new apps or changes to existing ones that may alter their risk profile.

2.2 Restrictions on Distribution and Use#

For apps listed as FACAs, the Secretary of Commerce has the authority to issue rules to:

• Prohibit or restrict distribution through app stores, internet platforms, or other digital marketplaces.
• Ban users from downloading, installing, or using the app on U.S.-based devices.
• Require the removal of the app from existing devices.
• Prohibit transactions related to the app, such as in-app purchases or advertising partnerships.

2.3 Due Process for App Developers#

The bill includes safeguards to prevent arbitrary action against developers:

• App developers have the right to appeal their inclusion on the FACA list through an administrative process.
• If dissatisfied with the administrative decision, developers can seek judicial review in federal court.
• The Secretary must provide clear, written justification for listing an app, including evidence of foreign control and national security risk.

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3. Defining "Foreign Adversary Controlled Applications"#

HR 5692 defines a FACA as an app that meets one or more of the following criteria:

• Owned, controlled, or directed by a "foreign adversary" (a designation that includes China, Russia, Iran, North Korea, Cuba, and Venezuela, as well as any foreign government or entity deemed a threat by the Secretary of Commerce).
• Processes sensitive personal data of U.S. users (e.g., location data, financial information, health records).
• Has access to critical infrastructure (e.g., energy grids, transportation systems) or can disrupt essential services.
• Is used to spread disinformation, manipulate public opinion, or engage in cyberattacks against U.S. interests.

For example, TikTok would likely qualify as a FACA under this definition, given its ownership by ByteDance and its collection of extensive user data.

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4. Enforcement Mechanisms and Penalties#

To ensure compliance, HR 5692 establishes strict penalties for violations:

• Civil Penalties: Up to $1 million per violation, or twice the gross gain or loss resulting from the violation (whichever is higher).
• Criminal Penalties: For intentional violations, individuals or entities may face fines up to $5 million and imprisonment for up to 10 years.
• Cease-and-Desist Orders: The Secretary of Commerce can issue immediate orders to stop distributing or using a FACA, with penalties for non-compliance.

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5. Potential Impact: Users, Businesses, and Developers#

HR 5692 would have far-reaching effects across the tech ecosystem:

5.1 Impact on Users#

• Loss of Access: Users may lose access to popular foreign-controlled apps (e.g., TikTok, WeChat) if they are listed as FACAs.
• Data Protection: The bill could reduce the risk of sensitive user data being shared with foreign governments, enhancing privacy and security.
• Increased Transparency: Users would receive clear notifications about apps deemed high-risk, helping them make informed choices about their digital tools.

5.2 Impact on Businesses#

• App Stores: Apple, Google, and other app store operators would be required to remove listed apps, potentially losing revenue from app downloads and in-app purchases.
• Tech Companies: U.S. firms that partner with foreign-controlled apps (e.g., advertisers) would need to terminate those partnerships to avoid penalties.
• Small Businesses: Companies that rely on foreign-controlled apps for operations may need to find alternative tools, incurring additional costs.

5.3 Impact on Developers#

• Foreign Developers: Developers based in adversary countries would have to either divest from foreign control or face being banned from U.S. markets.
• Small Foreign Developers: Some smaller developers without ties to foreign governments may be caught up in the net if their apps meet broad risk criteria.
• U.S. Developers: Domestic developers could benefit from reduced competition, but may face increased scrutiny if they have foreign partnerships.

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6. Criticisms and Controversies#

While HR 5692 has bipartisan support, it has sparked debate:

• Government Overreach: Critics argue the bill gives the Secretary of Commerce excessive authority to ban apps without clear, narrow guidelines, potentially stifling innovation and free speech.
• Unintended Consequences: Small developers or apps with minor foreign ties may be unfairly targeted, harming global tech collaboration.
• Geopolitical Tensions: The bill could escalate tensions with countries like China, which may retaliate by banning U.S. apps (e.g., Facebook, Instagram) in its domestic market.
• User Privacy Concerns: Some worry that the government’s monitoring of app data could lead to increased surveillance of U.S. users.

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7. Next Steps for HR 5692#

As of 2024, HR 5692 is currently under review by the U.S. House Committee on Energy and Commerce. The next steps include:

1. Committee Markup: Lawmakers will revise the bill based on input from stakeholders, including tech companies, user advocacy groups, and national security experts.
2. Floor Vote: If approved by the committee, the bill will move to the full House of Representatives for a vote.
3. Senate Consideration: A companion bill would need to be introduced in the Senate, followed by similar committee review and floor vote.
4. Presidential Signoff: If passed by both chambers, the bill would go to the President for signature to become law.

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Conclusion#

HR 5692 represents a significant step toward addressing national security risks posed by foreign-controlled apps. While it offers critical protections for U.S. users and infrastructure, it also raises important questions about government overreach, innovation, and geopolitical relations. As the legislation moves through Congress, balancing these competing interests will be key to creating a law that effectively mitigates risks without harming the global tech ecosystem.

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References#

1. Congress.gov. (2023). H.R.5692 - Foreign Adversary Controlled Applications Act. Retrieved from https://www.congress.gov/bill/118th-congress/house-bill/5692
2. CNN. (2023, July 27). Bipartisan bill would give US power to ban TikTok and other foreign-controlled apps. Retrieved from https://www.cnn.com/2023/07/27/tech/tiktok-ban-bill-hr-5692/index.html
3. Wired. (2023, July 28). The New TikTok Ban Bill Is Broad, Bipartisan, and Likely to Pass. Retrieved from https://www.wired.com/story/hr-5692-tiktok-ban-bill-explained/
4. U.S. House Committee on Energy and Commerce. (2023). Gallagher, Krishnamoorthi Introduce Bipartisan Bill to Regulate Foreign Adversary-Controlled Apps. Retrieved from https://energycommerce.house.gov/news/press-releases/gallagher-krishnamoorthi-introduce-bipartisan-bill-to-regulate-foreign