Everybody seems to agree that the Supreme Court is likely to uphold the TikTok ban:
Chief Justice John Roberts said the court couldn’t ignore congressional concerns that Beijing could use TikTok to spread propaganda and stockpile sensitive user data on Americans.
“It seems to me that you’re ignoring the major concern here of Congress, which was Chinese manipulation of the content and acquisition and harvesting of the content,” Roberts said.
Justice Elena Kagan said the law “is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
This isn't too surprising. Courts are usually very deferential to national security arguments.
TikTok's lawyer said the app will go dark in nine days if the court upholds the ban. There's no telling if this is real or just special pleading.
I continue to be (slightly) surprised that neither Congress nor the Justice Department tried to base the TikTok ban on the simple principle of reciprocity: we allow only apps from countries that allow our apps. Maybe that wouldn't have passed constitutional muster?
It seems likely that a law requiring such reciprocity would be constitutional under the Commerce Clause. But the national security basis has a long history of being supported by both sides of the Court; anytime you're treading old ground, life is easier.
At some point in the future, assuming this nation remains a liberal democracy and a beacon of freedom, shouldn't the US incorporate a set of universal rights across all borders to all peoples?
I like that you assume we will remain a liberal democracy. I really hope you're right. I fear wishes and hope these days are not worth much.
* Also, reciprocity could fall under the President's power to make treaties.
Reciprocity is not a principle enshrined in any law that I know of. Of course, IANAL.
It's a good principle to drive negotiations and agreements. But in that context, one would also have to negotiate an agreement to submit to legal process.
None of that is in place for TikTok, and we should not wait for it to be in place. It is, at least potentially, spyware.
My kids got my on TikTok during the pandemic and I found it quite enjoyable as a time waster. But leading up to the election last year it became apparent that it was just another tool to push disinformation. I'm completely fine with the ban for the reasons Congress outlawed it. I deleted my TikTok account a few months before the election because despite trying to change my algorithm, all I got was pro trump videos.
Luckily, no US social media platforms push disinformation. Sigh.
If you are so against disinformation on SM platforms have you deleted your FB, Instagram, Shitter, etc. accounts as well?
I only have an IG account and am seriously thinking about ending it. I gave up on FB and Twitter years ago
+1
Also, will give this Europeans to (hopefully) ban Shitter and Melon Usk’s stupidity 🤞
Personally, I just don’t find the reciprocity principle to be very convincing.
And I do find the principle that a free press can be required to be owned by US citizens of our own country perfectly reasonable. I just never found the free speech aspect remotely compelling. It’s a company owned by foreign citizens, not a US citizen in any sense.
And yet it seems we will have propaganda galore (both foreign and domestic) on the platforms owned/controlled by people ostensibly US citizens.
I never used any social media platform, though I have taken (a bit) to BlueSky recently. With that said, bluntly, if I did use social media more, I'd prefer the CPP have my data than any of the fucking fascist supporting assholes running the social media platforms in this country.
Yeah, I'm baffled why TikTok is the target since Facebook happily sells their info and network to any buyers, and twitter seems no more resistant to their bots.
The servers are in the US now, the owners aren't Chinese...
"I'd prefer the CPP have my data than any of the fucking fascist supporting assholes running the social media platforms in this country."
Hyuck hyuck hyuck.
But note: those fascist supporting assholes through that support seek to make the US more like China. China, of course, already is like China.
" China, of course, already is like China." Excellent point.
Justice Elena Kagan said the law “is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
Wait, what? Is that a thing? Corporations have no first amendment rights if they're "foreign"? Since when?
WSJ has this as a direct quote of Kagan, which makes me wonder: Was there some context here that didn't make it into the quote? Was that apparently extremely broad statement really something more like "this particular corporation, whose first amendment rights aren't relevant in this particular context because of an exception that we're all clear on at this point in the discussion?"
From summaries, I get the idea there was a good deal of discussion about how foreign intelligence services don't have first amendment rights. So was this quote, for instance, take as its premise that TikTok is a tool of China's intelligence services, and that's the reason it's got no first amendment rights, rather than the fact that it's a corporation with majority foreign ownership?
I think the argument is that TikTok is a foreign corporation run in a foreign country and not subject to US Law and therefore has no rights under the US Constitution.
That paraphrase seems implausible or at least incomplete--the mere existence of this case demonstrates that TikTok is subject to US Law in ways that it finds extremely burdensome.
Can you point me at someone making that argument in more detail? I speculate that you're summarizing, and I'm missing out on some important elements of the argument.
Kavanaugh opinion in Agency for International Development v. Alliance for Open Society International, Inc. (2020):
Gee, if they could sue, then we wouldn't need to use the military, now would we?
Stupid Kavenaugh.
Beijing could use TikTok to spread propaganda and stockpile sensitive user data on Americans.
However if domestic companies abuse our sensitive user data, we're cool with that.
I think there's another possibility: SC issues a stay on the ban for a couple of weeks so Trump can demonstrate his awesome negotiating powers.
However if domestic companies abuse our sensitive user data, we're cool with that.
I happen to oppose the TikTok ban, but, are you seriously contending there's no difference between (1) Proctor and Gamble using personal data to sell more hair conditioner, and (2) the Chinese Communist Party using personal data to develop detailed psychological profiles of US national security personnel?
I think there's another possibility: SC issues a stay on the ban for a couple of weeks so Trump can demonstrate his awesome negotiating powers.
We'll see. But the great and the good of the SC analysis community seem to be united in their belief that there are at least five votes for upholding the law.
I still have faith in our current system. Enough money will get to the right PACs to buy approval.
I would not be surprised if they do make the app go dark in the US, hoping that an outcry causes the ban to be lifted.
FWIW, Pornhub has gone dark in Florida because of a change in age verification laws that they object to. (Or so a friend has told me . . .) So this kind of thing is not unheard of.
I would not be surprised if they do make the app go dark in the US, hoping that an outcry causes the ban to be lifted.
I think it's effectively going to quickly go dark after the court issues its ruling. While Americans with the preinstalled apps may be able access the site temporarily—and while others will use the web version—I strongly suspect US ISPs, out of a desire to eliminate legal risk, will promptly move to block access to TikTok's servers. Why take the chance you may be running afoul of the law, especially when America's mortal enemy is involved?
TikTok isn't going to completely vanish from the US. Americans can presumably pay for VPNs. But not many will.
Justice Elena Kagan said the law “is only targeted at this foreign corporation, which doesn’t have First Amendment rights.”
I've always hated this argument. But I guess it is right. At least, if you think of a right as a law then sure. We can't enforce our laws in places that aren't ours. Neither can any other nation.
But if you think of a right as a natural entitlement, an operational definition of life, liberty, and the pursuit of happiness, then what the hell? Do we really believe that all are entitled to those, or do we not?
And it isn't like this is any more than a small bump in the ability of China to get propaganda in front of our eyes.
I guess that's the reason. It's an easy way to show concern without addressing actual complex and intractable problem.
It's one step away from saying they don't have any rights, though, and they can put foreign nationals into death camps.
Because they've already done that with informants and suspects the military has taken.
+1
I continue to be (slightly) surprised that neither Congress nor the Justice Department tried to base the TikTok ban on the simple principle of reciprocity: we allow only apps from countries that allow our apps. Maybe that wouldn't have passed constitutional muster?
I don't think there would be a legal basis for such a rationale, because there's no basis in reality.
China doesn't "ban" US apps, platforms and internet services. And no, this isn't a mere technicality. While I'm grateful my county's government has far weaker powers of censorship than China's, the fact is US apps/platforms/internet services are allowed to operate in China just like (until now, at least) Chinese apps/platforms/internet services are allowed to operate in the United States, that is, provided they follow the laws of the country in which they're operating.
You'll note that, say, Bing and MSN and Apple's App Stores all operate in China. But they do so in accordance with PRC law. Google, Snapchat and Facebook by contrast evidently feel they cannot comply with PRC law (not consistent with their business models) so they stay out. Good on them: perhaps it shows integrity that they're willing to forego the profits from the Chinese market. But it's not a "ban" as such.
Plainly Congress was concerned about national security, but equally plainly there is a first amendment concern triggered here. Now, we all know rights aren't unlimited ("yelling fire in a crowded theater" etc), but isn't a government policy that hampers freedom of speech supposed to be the least restrictive means possible? Whatever happened to strict scrutiny? In other words, if the concern is Chinese government access to data about US users, does the app really have to be banned?
The reason I bring this up is, Bytedance had devised a plan to house all data on American users on US soil, with appropriate firewalls, all supervised by Oracle. Maybe this plan was unworkable. Maybe! But maybe...not? I'm no tech expert but I tend to regard Oracle as a really large, really powerful firm with robust technologies. Whatever happened to this plan? I'm surprised Bytedance's lawyers didn't bring it up (maybe they did?), because Congress's apparent unwillingness to consider less restrictive ways to protect national security strikes me as an important factor. Shouldn't Byetdance at least try and force the government to show why the Oracle solution isn't workable?
I'm inclined to think we're not so much getting the national security establishment's preferred solution so much as Mark Zuckerberg's preferred solution.