US can’t ban TikTok for security reasons while ignoring Temu, other apps, TikTok argues
TikTok's survival in the US may depend on an appeals court ruling this December.
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Legally it is a very good argument. A law targeting a single company in name or effect is literally unconstitutional. It's called a "Bill of Attainder".
The counter argument is indicting Facebook because they never stopped selling information directly to the CCP.
Cool, let's ban Temu then. Nothing of value will be lost.
I said Facebook because we know they're doing it and you'd still have to actually prove that case.
Sure, and we should absolutely indict Facebook. And ideally our government wouldn't be so corrupt that it could indict our own government agencies from buying information from them in violation of the 1st, 4th, 5th, 6th, and 9th amendments (and probably the 14th).
How about making data collection other than necessary to operate a website illegal, then making the sale of that data illegal, and absolutely require a warrant to collect it, including from FISA court?
I disagree, especially because "other than necessary" is a pretty squishy concept (i.e. selling tailored ads could be considered "necessary to operate a website"). Instead of that, I think selling or providing any form of data collected without the customer's explicit consent (and to consent, the customer must know what data is being s hared) or without a warrant (and only the data in the warrant) should be illegal.
That should be sufficient and actually enforceable, since it has very clear boundaries on what's included.
I think we're in agreement. I could have said "technologically necessary" to have been more clear, but I don't agree sale or sharing should be by consent. I think it should be illegal, full stop.
I think it should be illegal, full stop.
Then we're certainly not in agreement. And that's fine.
I think sale of data should be 100% allowed, provided the customer consents (and gets fair compensation). The customer, however, needs to be aware of what data is being sold, to whom, and what they're getting in return. Burying that 20 pages deep in a TOS doesn't count, it needs to be in a format that an average person could reasonably be expected to fully understand. The service provider and the company receiving the data should have strict legal requirements to keep that data safe, so if there's a breach of any variety, the consequences would be a lot steeper than a few dollars per person affected.
So essentially what I'm after here is transparency to the customer, and actual consequences for companies that fail to protect customer data.
The reason I didn't agree with that is because desperate people do desperate things, despite how clear and concise information available is. With every person had guaranteed, decent housing, food, comprehensive medical, decent clothing and other needs met, I may reconsider.
The Constitution doesn’t only protect American citizens, it protects everyone
Uh, no. It doesn't protect everyone, not by a long shot. The US constitution doesn't guarantee Chinese citizens, living in China, the right to freedom of the press.
...And this isn't about which speech they're allowing. This is about who controls the platform, and how they respond to gov't inquiries. If TikTok is divested from ByteDance, so that they're no longer based in China and subject to China's laws and interference, then there's no problem. There are two fundamental issues; first, TikTok appears to be a tool of the Chinese gov't (this is the best guess, considering that large parts of the intelligence about it are highly classified), and may be currently being used to amplify Chinese-state propaganda as well as increase political division, and second, what ByteDance is doing with the enormous amounts of data it's collection, esp. from people that may be in sensitive or classified locations.
As I stated, if TikTok is sold off so that they're no longer connected to China, then they're more than welcome to continue to operate. ByteDance is refusing to do that.
There's no been proof that Tik Tok sends all the data to China or that China manipulates the algorithm. In fact, to appease the US before, they agreed to let Oracle and a purely US subsidiary look at all their code and data and content moderation. Oracle would spot check the data flows and where it goes. Tik Tok would report to Committee on Foreign Investment in the US on everything, even hiring practices. And a 2021 study found Tik Tok didn't really collect data beyond the norm of other players in the industry, or beyond what it said it did in it's policy.
All this scaring is literally just because politicians are scared that people in Gaza can use it to report what's happening to themselves during the genocide, without the blatant censorship of American companies on the issue. Even Romney admitted that's the reason. I don't actually use Tik Tok and I think it's algorithms are bad for our ADHD addled brains, but I would also apply that to YouTube shorts and Instagram stories. They should all be regulated, not banned. Hell, we actually could use more foreign companies that aren't vulnerable to US censorship, not the opposite. This is especially important since reporters aren't being let in Gaza and the ones who are are killed. And we'll probably lose it once they finish their restructuring in Project Texas, although sounds like they'll be banned before they do.
The US constitution doesn’t guarantee Chinese citizens, living in China, the right to freedom of the press.
True, but the US constitution guarantees Chinese citizens, living in or visiting the US or its territories, all the rights in the Constitution. So when TikTok operates in the US and provides services to US customers, it gets the protections of the US Constitution, as well as the obligations of US law.
TikTok appears to be a tool of the Chinese gov’t
And this is covered by freedom of the press. There's no legal requirement for press to be pro-US, and it doesn't necessarily need to be accurate, it just can't be fraudulent. If TikTok is being fraudulent, then they should be held accountable for that.
As I stated, if TikTok is sold off so that they’re no longer connected to China, then they’re more than welcome to continue to operate.
Yes, according to the law that they're contesting.
I'm saying that I don't think this law is constitutional. I don't use TikTok, I believe TikTok is dangerous, and I don't think anyone should use it, but I'm also uncomfortable with the government picking and choosing which apps I can use, especially when the justification seems to be about the speech on that app. So even though I wish TikTok would disappear, I don't think that justifies using the law to accomplish that.
And this is covered by freedom of the press.
Their freedom of the press isn't what's in question. Their ownership is. They are welcome to continue operating as long as they are not owned by a Chinese company based in China and subject to Chinese national security laws.
But, even if it's really, truly, a 1A issue, no rights are absolute. You can not, for instance, publish classified information, and then claim that it's a free speech issue. National security interests can, and do, outweigh individual and especially corporate rights to free speech.
especially when the justification seems to be about the speech on that app
But that's not the justification. The justification is first, access to data, and second, manipulation of that data. The gov't is arguing that TT is hoovering up massive amounts of data on users, and then is manipulating the content that is shown to them in order to unjustly influence international policy, and all done with no transparency at all. It's on-par with Russian election interference, although perhaps a little longer lasting and more subtly done.
They are welcome to continue operating as long as they are not owned by a Chinese company
Yes, according to the recently passed law. And the justification for that law is the notion of "enemy of the state," which is, IMO, a tricky argument to make when they're such a huge trading partner. It makes a lot of sense for something like N. Korea, Iran, or Russia where we have pretty much no economic involvement, but China is a weird one because of our close trading relationship.
To me, this smells like the US doesn't feel comfortable not controlling every massive SM company. Would we try something similar if it came from a non-enemy, non-ally like India? That I even feel unsure of the answer is a massive problem IMO.
manipulation of that data
Which is speech. If I (US citizen) built something like TikTok and manipulated the sorting algorithm to show content consistent with my political views in an effort to change the outcome of the election, would I be shut down? Surely I have some cover from the 1A. Facebook, Google, and Twitter seemed to get away with some of that, and X seems to be getting away with it now. If TikTok was owned by a US company and manipulated data in exactly the same way, would they be okay?
This smells like they're arguing the 1A only applies to US-based companies. It should apply to any company doing business in the US for customers who are in the US.
China having access to the data is certainly problematic, but does is it actually something that rises to the status of a national security issue? I completely agree with banning it for any US government personnel (esp. those who work at secure facilities), and I'm fine with an active campaign against people using it, but I think banning it outright unless China's involvement is eliminated oversteps the bounds of the Constitution. I should be able to use any app I want and companies should be able to distribute any app they want, but if an app is used to commit a crime, that crime should be prosecuted. If certain apps are more likely to be used for crime, they should be closely monitored by law enforcement. But distributing software, by itself, should never be a crime outside of things like IP law.
It’s on-par with Russian election interference, although perhaps a little longer lasting and more subtly done.
The Russian election interference concern is overblown IMO. Yes, they have a heavy pro-Russia information campaign where they want US citizens to elect pro-Russian representatives. Pretty much everyone does this, and IMO it's not election interference unless there's actual fraud (i.e. ballot box stuffing, manipulation of voting machines, intimidation, etc), none of which there's any evidence for given Trump's fruitless lawsuits in the 2020 election. It's a bunch of FUD IMO.
Yes, Russia and China suck for trying to sway American votes, but at the end of the day, Americans are the ones deciding the outcome of the election, not Russia or China, and it's the US government's job to counter that misinformation, but not by banning misinformation sources, but by pointing out and challenging the misinformation.
In the US, we do things differently. Instead of banning things we don't like, we challenge and inform so the general public can make a better decision. Or at least that's how it should be. The moment we collectively decide to let the government think for us is the moment we set ourselves up for fascism, and I want no part in it.
A US Citizen might be protected by Article 1 Section 9, but courts have adopted a three-part test to determine if a law functions as a bill of attainder:
And unfortunately for the CCP they fail #3 unless the Chinese owners divest and all Chinese centralization for the company gets shut down.
Also, the tiktok ban was passed alongside a bill outlawing sale of data to China, Iran, Russia, etc. So if FB is still selling to China it is also illegal.
You mean the CCP is not an "individual or group"?
#3. Number 3. The third part. THREE. Learn to read. All three are required conditions.
The parent company don't have judicial protections. They're based in China and are state owned and operated. The US-Based subsidiary isn't being punished, they're explicitly allowed to operate if the parent company divests, but are choosing to shut down instead.
The parent company don’t have judicial protections.
But the subsidiary does.
And the subsidiary has explicit permission to continue operating if the parent company divests.
But explicit prohibition on continued operation if they don't. ByteDance is not affected outside of the US. Only US employees are being threatened.
ByteDance employees chose to work for a Chinese PsyOp parent company who refuses to sell ByteDance. If anything, those employees are suffering because the CCP were given too many rights and protections for owning a business in the USA.
So you're agreeing this is a Bill of Attainder limited to a single group of American citizens?
Thanks.
The single group of American Citizens are facing no repercussions from the US Government. They're being thrown under the bus by the Chinese.
Only US employees are being threatened.
Lmao, that's quite the stretch. The way I see it, US employees AND citizens would be protected from foreign spyware.
if the XI's China could stop trying to interfere with the world beyond its border they could also probably stop themselves from being targeted by legislature aimed at protecting citizens of countries outside China.
And unfortunately for the CCP they fail #3
The bill doesn't target the CCP, it targets a US subsidiary of a Singapore-based multinational.
unless the Chinese owners divest and all Chinese centralization for the company gets shut down
A rule that applies exclusively to the US subsidiary of TikTok.
It would be akin to passing a law that says @finitebanjo must have all of his possessions seized in the next nine months, because he took money from the Canadian government. Canada isn't the target of the legislation and the scope of the legislation isn't universal - it's only assigning a punishment to a single domestic resident - and entirely on the grounds that the current chief executive doesn't like Justin Trudeau.
It would be akin to passing a law that states Finite Banjo's friend Jose must no longer act as a proxy between Finite Banjo and Jose's friend Juan, as Finite Banjo is not constitutionally protected but Jose is, or Jose must cut all contact with Juan because Finite Banjo is harming Juan.
The fact that you think you can remove all context in an attempt to win an argument is just evidence of your inability to comprehend complexity.
It would be akin to passing a law that states Finite Banjo’s friend Jose
Except, again, the business being penalized is the American subsidiary.
The fact that you think you can remove all context
The context is that the commercial assets and employees being threatened by the US government are all within US territory.
Not environmentally...
I thought we like disruption.