Elon Musk’s decision to accept some foreign investors as part of his $44 billion (roughly Rs. 3,37,000 crore) buyout of Twitter runs the risk of inviting the kind of regulatory scrutiny over US national security that social media peer TikTok faced, legal experts say.
Musk disclosed on Thursday that Saudi Arabia’s Prince Alwaleed bin Talal, Qatar’s sovereign wealth fund and Binance, the world’s biggest cryptocurrency exchange founded by Chinese native Changpeng Zhao, were part of a group of investors that will help him fund the acquisition of Twitter.
This could give the Committee on Foreign Investment in the United States (CFIUS) an opening to scrutinize the deal for potential national security risks, six regulatory lawyers not involved in the transaction and interviewed by Reuters said. CFIUS is a panel of government agencies and departments that reviews mergers and acquisitions for potential threats to US security.
“To the extent that Musk’s proposed acquisition of Twitter includes foreign investment, it very well could fall under CFIUS jurisdiction,” said Chris Griner, chair of law firm Stroock & Stroock & Lavan LLP’s national security practice.
A spokesperson for the US Treasury Department, which chairs CFIUS, declined to comment on whether the national security panel planned to scrutinize Musk’s Twitter deal.
Spokespeople for Musk, bin Talal, Qatar and Binance did not immediately respond to requests for comment.
Former President Donald Trump’s administration turned to CFIUS in 2020 in a bid to force TikTok’s Chinese parent ByteDance to divest the short video app. His successor Joe Biden abandoned that effort after ByteDance agreed to changes on how the data of US users are stored and protected.
The regulatory lawyers interviewed by Reuters said the risk of CFIUS blocking Musk’s deal is small because he will control Twitter under the proposed takeover and the foreign investors are acquiring relatively small stakes.
They added that their assessment would change were Musk to give the foreign investors influence over the company, through a seat on its board or other means.
The risk is not negligible, however, given that the business of handling personal data by social media companies such as Twitter is typically viewed as critical infrastructure by CFIUS, the lawyers said.
“One of the items that’s considered sensitive personal data, is non-public electronic communications. So that would be email, messaging or chat communications between users. Twitter allows you to do that,” law firm Vinson & Elkins LLP partner Richard Sofield said.
One area of potential scrutiny for CFIUS, the lawyers said, could be Musk’s business dealings with foreign governments hostile to free speech or keen to overtake the United States technologically. Tesla, the electric car maker he leads, relies heavily on China, for example, to manufacture and sell its vehicles.
China blocked Twitter in 2009 but many Chinese officials have been active on the social media platform. Some of them have complained that the company’s efforts to restrict misinformation have targeted them unfairly.
“One of the considerations would be whether or not there will be an opportunity for China to leverage its business activity in order to achieve a desired outcome,” Sofield added.
BROADCOM PRECEDENT
There is precedent for CFIUS shooting down a deal based on the risk that an acquirer’s business ties could compromise them, the lawyers said. Trump blocked chip maker Broadcom $117 billion (roughly Rs. 8,99,595 crore) acquisition of US peer Qualcomm 2018 after CFIUS raised concerns about the deal.
Broadcom was a publicly listed company with US shareholders that was headquartered in Singapore, but the White House fretted that Broadcom’s relationship with “third-party foreign entities” would set the US back in its technology race with China.
Nevena Simidjiyska, a regulatory lawyer at law firm Fox Rothschild LLP, said it was possible CFIUS would look into whether Musk or other US investors in the Twitter deal can be influenced by foreign entities in a similar way.
“CFIUS may determine that even US investors in Twitter fall under CFIUS review if they are controlled by foreign parties,” Simidjiyska said.
Musk’s Twitter deal does not face the most common type of regulatory risk seen in mergers and acquisitions — pushback from antitrust regulators. The world’s richest man has no media holdings, and regulatory experts have said they do not expect the deal to face significant antitrust scrutiny.
© Thomson Reuters 2022
