5 ms·

I haven't heard a good explanation yet for whether this is even legal. It seems like a textbook example of an unconstitutional bill of attainder. You'd have to

by lukev 3y ago

I haven't heard a good explanation yet for whether this is even legal. It seems like a textbook example of an unconstitutional bill of attainder. You'd have to ban TikTok based on something it does, and any such law would impact a lot of other companies too. Or I guess you could ban all Chinese software using trade laws, but that has even bigger ramifications.

ejlxsh 3y ago
Can’t you ban an app based on purpose, “they’re using the app to spy on us”, and then case law applies it on an app by app basis?
- diogenes4 3y ago
  Surely this would mostly apply to non-chinese companies, no? This would wipe the market out.
  - ac54321 3y ago
    OK. How about “they’re using the app to spy on us for a Foreign Hostile Government”
    - colordrops 3y ago
      Is "Foreign Hostile Government" an official legal distinction? I thought the US was still on good terms with China as a trade partner.
      - cjbgkagh 3y ago
        It’s a weird duality with import taxes acting as a middle ground. It seems the belief that a conflict with China is inevitable is becoming more pervasive. So much of the US economy relies on reselling Chinese goods that to stop trading completely would be calamitous. I think the idea is to keep trading right up until the war starts. I’ve already stocked up on goods and materials that are only available from China as I include myself as one of those who believe a great power conflict is coming.
        diogenes4 3y ago
        > It seems the belief that a conflict with China is inevitable is becoming more pervasive. An actual kinetic conflict would result in a complete destruction of the world economy and WWIII. You can't take these people seriously without carefully examining their motivations (certainly most notably, to build up the capacity of our own military).
        cjbgkagh 3y ago
        They don’t start that way, they start as regional conflicts and grow. ‘How could we not help the poor so and sos that we’ve signed some tangling alliance with…’
        colordrops 3y ago
        Which goods in particular are you stocking up on?
        cjbgkagh 3y ago
        I do small scale manufacturing as a hobby which covers quite a gamut of fields from woodworking, machining, electronics, chemistry etc. So a huge amount of tools and industrial consumables. A lot of electronics modules. Basically anything I think I might need I buy and store. My plan for war breaking out is to stay home and do engineering work.
      - kube-system 3y ago
        "Foreign Adversary" is, and the US considers China to be one. https://www.ecfr.gov/current/title-15/subtitle-A/part-7/subpart-A/section-7.4 https://www.ecfr.gov/current/title-15/subtitle-A/part-7/subp...
    - whatshisface 3y ago
      Given the Snowden revelations any kind of reciprocity in the international community regarding that principle would make basically all US tech companies US-market only...
    - dtjb 3y ago
      KSA used Pegasus to spy on and murder an american journalist. They're also a major shareholder of twitter.
      - ac54321 3y ago
        I’m not really sure what the legal status of Pegasus is. Also, I doubt it’s on 150 million American’s phones, though who knows. I don’t believe TikTok and Pegasus belong in the same category. Regarding Twitter, only Elon can answer how much of American’s Twitter data is flowing through KSA, though I believe it’s zero. Edit: I’m fully behind any moves to ban Pegasus.
    - diogenes4 3y ago
      So long as this is equally applied to a domestic hostile government I'm fine with that.
  - digging 3y ago
    If only!
- TheRealPomax 3y ago
  What purpose, though? Because if the purpose is "you're not allowed to spy", you can't ban software until you prove they're spying. And the US already has multiple laws that cover that problem, with courts being entirely allowed to rule that a product must be taken off the US market, be that a physical product or software. This is congress trying to ban a named product by bypassing the courts, in order not to have to bother with the whole "burden of proof" thing, rather than the justice department bringing a case to the courts to get existing laws enforced. And yes, technically it's "congress makes the laws, the courts enforce those laws", but congress is bound by the constitution, and if congress singles out a specific individual or company, that's (amazingly, because it almost never is) an actual first amendment violation. Whereas taking a company to court in order to get it banned for "spying on behalf of a foreign nation" is not.
  - kube-system 3y ago
    > until you prove they're spying. Not that I agree with the premise above, but: https://www.theguardian.com/technology/2022/dec/22/tiktok-bytedance-workers-fired-data-access-journalists https://www.theguardian.com/technology/2022/dec/22/tiktok-by...
    - TheRealPomax 3y ago
      I'd rather you expound what what part you don't agree with, because what that link tells us is that the DoJ didn't consider that severe enough to push for a ban on the product.
      - kube-system 3y ago
        It doesn't surprise me that they don't care, setting policy for forward looking national security matters isn't their job. The part I disagree with is the idea that "they're using the app to spy on us" is a benchmark that some in the government care about, or a reasonable benchmark at that. On this topic there are often people asking for evidence that TikTok has done anything wrong, but that's really besides the whole point. Governance can be an issue whether or not someone has abused a power. Past performance is not the be-all and end-all of security; means and motivations are also something to consider.
usernomdeguerre 3y ago
Are national security arguments not legal? My understanding was that Chinese Tech companies are required by law to serve as (willing or unwilling) arms of the domestic spy agency in China.
- johngalt_ 3y ago
  Same as in the US.
- bogwog 3y ago
  If the data collected on TikTok is a national security issue, that would be a good admission since it would mean we'd have to pass some actual privacy laws in this country. Facebook/Google/Microsoft/etc collect the same kind of data, and their revenues are not as important to protect as our national security (I assume).
- Gormo 3y ago
  > Are national security arguments not legal? Arguments aren't a source of law, and what's permissible in legislation is defined by the constitution.
  - throwawaymaths 3y ago
    > what's permissible in legislation is defined by the constitution. Oh, sweet, summer child.
  - falcolas 3y ago
    The constitution and the dozens of dozens of interpretations of the constitution by way of case law rendered by the supreme court. Reading the full text of the constitution won't do much but put you a toe past the starting line in understanding what is and is not "constitutional" in the US.
- marcosdumay 3y ago
  If there are no clear rules, no, it's not legal (by definition, "law" is a set of clear rules). If you decide that "no Chinese social network is allowed", you can create a law for that. But the TikTok ban is not like this.
xwdv 3y ago
I think it’s fine to ban first and ask questions later. If we find out later we shouldn’t have done it we’ll just lift the ban.
- standardUser 3y ago
  In America it should not be "fine" to ban first and ask questions later. That's preposterous and sets a horrifying precedent. We're a trading nation, not a banning nation.
  - wolverine876 3y ago
    Also a free nation.
    - digging 3y ago
      For certain definitions of free.
- kccqzy 3y ago
  I think it's fine to incarcerate all Japanese first and ask questions later. If we find out later they aren't really spies and we shouldn't have done it we'll just release them. /s I think it's fine to incarcerate suspected terrorists first and ask questions later. Since the courts most definitely won't allow that on American soil, we'll incarcerate them in Guantanamo. If we find out later they aren't terrorists we'll just release them. /s
duxup 3y ago
I have no problem as far as handling it like a trade issue. China doesn't allow such social media networks from the US. I got no problem banning theirs.
- archagon 3y ago
  Well, I want to keep using TikTok. The government can go suck eggs.
- rchaud 3y ago
  'Social Media' isn't a product category with safety and quality guidelines like agriculture or steel. It can't be banned on the basis of tit-for-tat without triggering a trade war blanket-banning a whole range of consumer software.
  - webninja 3y ago
    First, the trade war already started with China banning US companies domestically. Second, it’s not like the US can’t trade more with its South American neighbors instead anyways.
    - unmole 3y ago
      > China banning US companies domestically. When did this happen?
      - rasz 3y ago
        ~2009 was FB, google, clouds followed in 2017 https://www.reuters.com/article/us-china-amazon-cloud/amazon-sells-off-china-cloud-assets-as-tough-new-rules-bite-idUSKBN1DE0CL https://www.reuters.com/article/us-china-amazon-cloud/amazon...
        goodbyesf 3y ago
        What ban? FB, Google, etc simply chose not to follow chinese laws and left. What US laws is tiktok violating? None.
enragedcacti 3y ago
The media refers to it as a TikTok ban and its apparent that TikTok is the inspiration, but the RESTRICT act never mentions TikTok specifically. Instead, the act: > proposes that the Secretary of Commerce be given the power to review business transactions involving certain information and communications technologies products or services when they are connected to a "foreign adversary" of the United States, and pose an "undue and unacceptable risk" to the national security of the United States or its citizens. A court could still find it unconstitutional depending on how its targeted and the statements of its sponsors, but textually it is a ban based on broad criteria. https://en.wikipedia.org/wiki/RESTRICT_Act https://en.wikipedia.org/wiki/RESTRICT_Act
- whatshisface 3y ago
  "Undue" national security risk? In contrast to a due national security risk? Who is writing these? ...
  - pseudalopex 3y ago
    Yes. Risks judged reasonable are accepted.
throwawaymaths 3y ago
Not really. IANAL but I imagine one could conditionally disincorporate tik tok (unless it complies with X Y or Z). Incorporation is a privilege, not a right, so that's not attainder. It would likely also be administrative , through FTC, so, also not congressional. At that point the owners of tiktok would become legally liable for the things that it does and also I think it would also lose safe harbor provisions. Nobody wants to operate a tiktok in that state.
wolverine876 3y ago
> I guess you could ban all Chinese software using trade laws, but that has even bigger ramifications. I guess you could institute privacy laws and regulations to protect consumers from all software.
deleted 3y ago
[deleted]
jjcon 3y ago
I don’t understand how people don’t think the government doesn’t have the authority to regulate international commerce. They literally do this all the time, banning trade or goods from one country or another. I don’t think any country in the world guarantees citizens access to the international market. I think for some reason since this is more public facing people seem to think it is somehow different than bans on Russian firearms or engaging with literally any commerce with Iran.
cm2012 3y ago
China banned all our social networks, we ban their's, simple trade stuff works.
esotericimpl 3y ago
[dead]
tzs 3y ago
To be a bill of attainder it would have to criminalize things that have already happened and were not criminal when they happened. A bill that says it is criminal to have ever had TikTok on your phone or it is criminal to have every distributed TikTok in the US would likely be a bill of attainder. A bill that says that after some date that future it becomes illegal to have TikTok or distribute it would not be a bill of attainder.
fomine3 3y ago
For China relationship, there should be reciprocity principle.

by lukev 3y ago

ejlxsh 3y ago

Can’t you ban an app based on purpose, “they’re using the app to spy on us”, and then case law applies it on an app by app basis?

diogenes4 3y ago
Surely this would mostly apply to non-chinese companies, no? This would wipe the market out.
- ac54321 3y ago
  OK. How about “they’re using the app to spy on us for a Foreign Hostile Government”
  - colordrops 3y ago
    Is "Foreign Hostile Government" an official legal distinction? I thought the US was still on good terms with China as a trade partner.
    - cjbgkagh 3y ago
      It’s a weird duality with import taxes acting as a middle ground. It seems the belief that a conflict with China is inevitable is becoming more pervasive. So much of the US economy relies on reselling Chinese goods that to stop trading completely would be calamitous. I think the idea is to keep trading right up until the war starts. I’ve already stocked up on goods and materials that are only available from China as I include myself as one of those who believe a great power conflict is coming.
      - diogenes4 3y ago
        > It seems the belief that a conflict with China is inevitable is becoming more pervasive. An actual kinetic conflict would result in a complete destruction of the world economy and WWIII. You can't take these people seriously without carefully examining their motivations (certainly most notably, to build up the capacity of our own military).
        cjbgkagh 3y ago
        They don’t start that way, they start as regional conflicts and grow. ‘How could we not help the poor so and sos that we’ve signed some tangling alliance with…’
      - colordrops 3y ago
        Which goods in particular are you stocking up on?
        cjbgkagh 3y ago
        I do small scale manufacturing as a hobby which covers quite a gamut of fields from woodworking, machining, electronics, chemistry etc. So a huge amount of tools and industrial consumables. A lot of electronics modules. Basically anything I think I might need I buy and store. My plan for war breaking out is to stay home and do engineering work.
    - kube-system 3y ago
      "Foreign Adversary" is, and the US considers China to be one. https://www.ecfr.gov/current/title-15/subtitle-A/part-7/subpart-A/section-7.4 https://www.ecfr.gov/current/title-15/subtitle-A/part-7/subp...
  - whatshisface 3y ago
    Given the Snowden revelations any kind of reciprocity in the international community regarding that principle would make basically all US tech companies US-market only...
  - dtjb 3y ago
    KSA used Pegasus to spy on and murder an american journalist. They're also a major shareholder of twitter.
    - ac54321 3y ago
      I’m not really sure what the legal status of Pegasus is. Also, I doubt it’s on 150 million American’s phones, though who knows. I don’t believe TikTok and Pegasus belong in the same category. Regarding Twitter, only Elon can answer how much of American’s Twitter data is flowing through KSA, though I believe it’s zero. Edit: I’m fully behind any moves to ban Pegasus.
  - diogenes4 3y ago
    So long as this is equally applied to a domestic hostile government I'm fine with that.
- digging 3y ago
  If only!
TheRealPomax 3y ago
What purpose, though? Because if the purpose is "you're not allowed to spy", you can't ban software until you prove they're spying. And the US already has multiple laws that cover that problem, with courts being entirely allowed to rule that a product must be taken off the US market, be that a physical product or software. This is congress trying to ban a named product by bypassing the courts, in order not to have to bother with the whole "burden of proof" thing, rather than the justice department bringing a case to the courts to get existing laws enforced. And yes, technically it's "congress makes the laws, the courts enforce those laws", but congress is bound by the constitution, and if congress singles out a specific individual or company, that's (amazingly, because it almost never is) an actual first amendment violation. Whereas taking a company to court in order to get it banned for "spying on behalf of a foreign nation" is not.
- kube-system 3y ago
  > until you prove they're spying. Not that I agree with the premise above, but: https://www.theguardian.com/technology/2022/dec/22/tiktok-bytedance-workers-fired-data-access-journalists https://www.theguardian.com/technology/2022/dec/22/tiktok-by...
  - TheRealPomax 3y ago
    I'd rather you expound what what part you don't agree with, because what that link tells us is that the DoJ didn't consider that severe enough to push for a ban on the product.
    - kube-system 3y ago
      It doesn't surprise me that they don't care, setting policy for forward looking national security matters isn't their job. The part I disagree with is the idea that "they're using the app to spy on us" is a benchmark that some in the government care about, or a reasonable benchmark at that. On this topic there are often people asking for evidence that TikTok has done anything wrong, but that's really besides the whole point. Governance can be an issue whether or not someone has abused a power. Past performance is not the be-all and end-all of security; means and motivations are also something to consider.

usernomdeguerre 3y ago

Are national security arguments not legal? My understanding was that Chinese Tech companies are required by law to serve as (willing or unwilling) arms of the domestic spy agency in China.

johngalt_ 3y ago
Same as in the US.
bogwog 3y ago
If the data collected on TikTok is a national security issue, that would be a good admission since it would mean we'd have to pass some actual privacy laws in this country. Facebook/Google/Microsoft/etc collect the same kind of data, and their revenues are not as important to protect as our national security (I assume).
Gormo 3y ago
> Are national security arguments not legal? Arguments aren't a source of law, and what's permissible in legislation is defined by the constitution.
- throwawaymaths 3y ago
  > what's permissible in legislation is defined by the constitution. Oh, sweet, summer child.
- falcolas 3y ago
  The constitution and the dozens of dozens of interpretations of the constitution by way of case law rendered by the supreme court. Reading the full text of the constitution won't do much but put you a toe past the starting line in understanding what is and is not "constitutional" in the US.
marcosdumay 3y ago
If there are no clear rules, no, it's not legal (by definition, "law" is a set of clear rules). If you decide that "no Chinese social network is allowed", you can create a law for that. But the TikTok ban is not like this.

xwdv 3y ago

I think it’s fine to ban first and ask questions later. If we find out later we shouldn’t have done it we’ll just lift the ban.

standardUser 3y ago
In America it should not be "fine" to ban first and ask questions later. That's preposterous and sets a horrifying precedent. We're a trading nation, not a banning nation.
- wolverine876 3y ago
  Also a free nation.
  - digging 3y ago
    For certain definitions of free.
kccqzy 3y ago
I think it's fine to incarcerate all Japanese first and ask questions later. If we find out later they aren't really spies and we shouldn't have done it we'll just release them. /s I think it's fine to incarcerate suspected terrorists first and ask questions later. Since the courts most definitely won't allow that on American soil, we'll incarcerate them in Guantanamo. If we find out later they aren't terrorists we'll just release them. /s

duxup 3y ago

I have no problem as far as handling it like a trade issue. China doesn't allow such social media networks from the US. I got no problem banning theirs.

archagon 3y ago
Well, I want to keep using TikTok. The government can go suck eggs.
rchaud 3y ago
'Social Media' isn't a product category with safety and quality guidelines like agriculture or steel. It can't be banned on the basis of tit-for-tat without triggering a trade war blanket-banning a whole range of consumer software.
- webninja 3y ago
  First, the trade war already started with China banning US companies domestically. Second, it’s not like the US can’t trade more with its South American neighbors instead anyways.
  - unmole 3y ago
    > China banning US companies domestically. When did this happen?
    - rasz 3y ago
      ~2009 was FB, google, clouds followed in 2017 https://www.reuters.com/article/us-china-amazon-cloud/amazon-sells-off-china-cloud-assets-as-tough-new-rules-bite-idUSKBN1DE0CL https://www.reuters.com/article/us-china-amazon-cloud/amazon...
      - goodbyesf 3y ago
        What ban? FB, Google, etc simply chose not to follow chinese laws and left. What US laws is tiktok violating? None.

enragedcacti 3y ago

The media refers to it as a TikTok ban and its apparent that TikTok is the inspiration, but the RESTRICT act never mentions TikTok specifically. Instead, the act: > proposes that the Secretary of Commerce be given the power to review business transactions involving certain information and communications technologies products or services when they are connected to a "foreign adversary" of the United States, and pose an "undue and unacceptable risk" to the national security of the United States or its citizens. A court could still find it unconstitutional depending on how its targeted and the statements of its sponsors, but textually it is a ban based on broad criteria. https://en.wikipedia.org/wiki/RESTRICT_Act https://en.wikipedia.org/wiki/RESTRICT_Act

whatshisface 3y ago
"Undue" national security risk? In contrast to a due national security risk? Who is writing these? ...
- pseudalopex 3y ago
  Yes. Risks judged reasonable are accepted.

throwawaymaths 3y ago

Not really. IANAL but I imagine one could conditionally disincorporate tik tok (unless it complies with X Y or Z). Incorporation is a privilege, not a right, so that's not attainder. It would likely also be administrative , through FTC, so, also not congressional. At that point the owners of tiktok would become legally liable for the things that it does and also I think it would also lose safe harbor provisions. Nobody wants to operate a tiktok in that state.

wolverine876 3y ago

> I guess you could ban all Chinese software using trade laws, but that has even bigger ramifications. I guess you could institute privacy laws and regulations to protect consumers from all software.

deleted 3y ago

[deleted]

jjcon 3y ago

I don’t understand how people don’t think the government doesn’t have the authority to regulate international commerce. They literally do this all the time, banning trade or goods from one country or another. I don’t think any country in the world guarantees citizens access to the international market. I think for some reason since this is more public facing people seem to think it is somehow different than bans on Russian firearms or engaging with literally any commerce with Iran.

cm2012 3y ago

China banned all our social networks, we ban their's, simple trade stuff works.

esotericimpl 3y ago

[dead]

tzs 3y ago

To be a bill of attainder it would have to criminalize things that have already happened and were not criminal when they happened. A bill that says it is criminal to have ever had TikTok on your phone or it is criminal to have every distributed TikTok in the US would likely be a bill of attainder. A bill that says that after some date that future it becomes illegal to have TikTok or distribute it would not be a bill of attainder.

fomine3 3y ago

For China relationship, there should be reciprocity principle.