5 ms·

The state already blacklists certain programs. Pretty much anything that illegally contains copyrighted content or some other form of illegal numbers.

quotemstr 6y ago
No, the state doesn't blacklist programs. Code is speech. Bernstein v. Department of Justice established that [1] in the 1990s. Sure, if you have an app, and you distribute copyrighted material as part of that app, yes, you can be prosecuted under copyright law and be forced (via injunction) to stop distributing that app. But the word "law" is essential: there is a specific rule, set out in advance, which applies to everyone, and for which there are clear penalties. I have seen nobody explain what law TikTok is supposedly breaking. If TikTok is doing something bad, fine. Make a rule against the bad thing, then ban TikTok on the basis of breaking that rule. You can't just bypass the whole "make a rule" and "show that $X broke the rule" thing and go straight to "punish X". That's called passing a "bill of attainder", and it's such a terrible idea that the practice is specifically banned in the constitution. Now, maybe this situation isn't technically a bill of attainder, but it's the same damned principle at work, and it's still a bad idea. [1] https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech https://www.eff.org/deeplinks/2015/04/remembering-case-estab...
- xxpor 6y ago
  And SCOTUS has shown no issue with rebuking Trump for shortcutting the APA.
  - dragonwriter 6y ago
    Any action here would almost certainly be under the IEEPA, to which APA rulemaking process does not apply.
- dragonwriter 6y ago
  > You can't just bypass the whole "make a rule" and "show that $X broke the rule" thing and go straight to "punish X". Yes, as long as the punishment isn't essentially criminal in nature, you can, and it's long been a regularly used tool of foreign policy, under the International Emergency Economic Powers Act. When sanctions are declared against foreign companies or individuals or trade with them otherwise restricted, it's based on declared threats to the country, not general rules that are announced in advance and then the specific individuals involved found guilty in some judicial process of breaking after the rule was declared. It's all by executive finding.
  - quotemstr 6y ago
    That this particular banning may be legal (and I think that's arguable) doesn't make it good policy (which I strongly believe it is not), because the reasoning behind nulla poena sine lega applies here too. The whole reason we have rules and not a chaos of capriciousness is to make it possible to plan, predict, and invest. A state that arbitrarily punishes international parties for unclear reasons will decrease confidence in all foreign interactions.

quotemstr 6y ago

No, the state doesn't blacklist programs. Code is speech. Bernstein v. Department of Justice established that [1] in the 1990s. Sure, if you have an app, and you distribute copyrighted material as part of that app, yes, you can be prosecuted under copyright law and be forced (via injunction) to stop distributing that app. But the word "law" is essential: there is a specific rule, set out in advance, which applies to everyone, and for which there are clear penalties. I have seen nobody explain what law TikTok is supposedly breaking. If TikTok is doing something bad, fine. Make a rule against the bad thing, then ban TikTok on the basis of breaking that rule. You can't just bypass the whole "make a rule" and "show that $X broke the rule" thing and go straight to "punish X". That's called passing a "bill of attainder", and it's such a terrible idea that the practice is specifically banned in the constitution. Now, maybe this situation isn't technically a bill of attainder, but it's the same damned principle at work, and it's still a bad idea. [1] https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech https://www.eff.org/deeplinks/2015/04/remembering-case-estab...

xxpor 6y ago
And SCOTUS has shown no issue with rebuking Trump for shortcutting the APA.
- dragonwriter 6y ago
  Any action here would almost certainly be under the IEEPA, to which APA rulemaking process does not apply.
dragonwriter 6y ago
> You can't just bypass the whole "make a rule" and "show that $X broke the rule" thing and go straight to "punish X". Yes, as long as the punishment isn't essentially criminal in nature, you can, and it's long been a regularly used tool of foreign policy, under the International Emergency Economic Powers Act. When sanctions are declared against foreign companies or individuals or trade with them otherwise restricted, it's based on declared threats to the country, not general rules that are announced in advance and then the specific individuals involved found guilty in some judicial process of breaking after the rule was declared. It's all by executive finding.
- quotemstr 6y ago
  That this particular banning may be legal (and I think that's arguable) doesn't make it good policy (which I strongly believe it is not), because the reasoning behind nulla poena sine lega applies here too. The whole reason we have rules and not a chaos of capriciousness is to make it possible to plan, predict, and invest. A state that arbitrarily punishes international parties for unclear reasons will decrease confidence in all foreign interactions.