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Banning TikTok Is Unconstitutional. The Supreme Court Must Step In

35 points by teqsun 2y ago

Jimmc414 2y ago
First, let me preface that I despise TikTok and I think it is mostly garbage content-wise, however this proposal is simply un-American. Concerns about data privacy and foreign influence are legit, but banning an entire communication platform used by 170 million Americans based on hypothetical threats goes against core First Amendment principles especially considering the government's inability to provide concrete evidence of harm or to explain why less restrictive measures wouldn't suffice. If we allow platforms to be banned based on their parent company's nationality rather than actual demonstrated threats, what is next?
- pmarreck 2y ago
  American platforms are already banned in China. Some of this is a tit-for-tat, I surmise. <opinion> The embracing of terrorist sympathizers across the platform is not helping. </opinion>
  - Hizonner 2y ago
    Turns out that US law (and custom) says the US can't do that particular kind of "tit for tat". I wasn't aware that China had a veto over the US Constitution.
    - paxys 2y ago
      Is it? Congress has the authority to regulate international trade. If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not. The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again.
      - Hizonner 2y ago
        > Is it? Congress has the authority to regulate international trade. Not as a pretext for speech regulation. And the right to free speech in the US is understood to include the right to listen. > If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not. I'd like to think nobody would be arguing, because that would be clearly unconstitutional. But in fact people probably would try to claim it was somehow acceptable. They'd be wrong. They might get away with a ban on all books from a given country, if they could show it was really, truly intended to affect only the physical process of printing and the market for that service. The instant it's even peripherally intended to affect the content, it's unconstitutional. And the TikTok thing is about content and who controls content. You could buy obvious Russian propaganda in the US in the middle of the Cold War. > The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again. Great. Since banning book imports would be blatantly unconstitutional, so is this bullshit.
      - mempko 2y ago
        Except your analogy is flawed. Tiktok is selling "books" written and published in the US. It's not like the Tiktok's themselves are all Chinese made.
        paxys 2y ago
        > Tiktok is selling "books" written and published in the US The entire argument is about their algorithm. They are not written and published in the USA if someone in China controls what goes in them.
  - fsflover 2y ago
    > American platforms are already banned in China. So if Americans are discriminated in China, would you suggest to do the same with the Chinese in US?
    - elmerfud 2y ago
      That's making a false analogy and is a logical fallacy trying to compare the two. Finding ways to level international trade to ensure fair trading and equal access to markets is definitely within the government's purview to do and within the national interests of our country. One rule that I would like to see implemented to equalize trade is to not allow foreign citizens or corporations to be able to purchase real estate in this country or become majority shareholders in any corporation if the country of their citizenship or incorporation does not allow the same reciprocity. It is foolish to allow this kind of imbalanced ownership to happen.
      - deleted 2y ago
        [deleted]
    - computerdork 2y ago
      You're statement is true, would should not do the same thing in terms of discrimination, but the two situations are a bit different. Your talking about culture, while this deals more with a outside government's influence on our populace. For me, think the ACLU makes a valid argument, that this could set a bad precedent. But, the Chinese government already has a system to at least partially monitor and influence what some businesses do (requiring corporations to have role for the CCP in their charters). https://www.csis.org/analysis/new-challenge-communist-corporate-governance https://www.csis.org/analysis/new-challenge-communist-corpor.... It doesn't seem out of the realm of possibility that the CCP uses tik-tok to influence the US populace (think Russia and its use of social media during the 2016 election of Trump). Yeah, this situation is pretty messy.
- ranger_danger 2y ago
  I have to assume that either there is some ulterior motive at play, or the national security risks themselves cannot be exposed for national security reasons and that this is incompatible with the current justice system unless something like a secret FISA court is involved. Of course that would be a convenient excuse if it weren't actually real, but how would we ever know...
- teqsun 2y ago
  In a strange way, if it was a blanket China ban, it would almost feel less arbitrary than this, which was crafted to target ByteDance. The fact they packaged it inside a funding bill that would have been politically unpopular for Congress to oppose also makes me speculate that they felt it wasn't strong enough to stand up to scrutiny on its own merits
  - matthewdgreen 2y ago
    The law technically doesn't limit itself to TikTok. It seems to cover any application or foreign company that meets certain criteria, which include (1) the President identifying it and writing some reports, and (2) some restrictions on the nature of the app, which would cover other social media. It is obviously written to cover TikTok initially (the name even appears in the bill) but the powers it grants are broader. Not sure if this is better or worse.
- qoez 2y ago
  Wouldn't seem very un-american to prohibit a radio station with a pro soviet leaning stance during the cold war
- qingcharles 2y ago
  Anyone who receives garbage content on TikTok has likely gotten themselves into a bad set of recommendations. I watched someone yesterday cycling through their feed and it was 100% brainrot. My feed is very enjoyable: mostly neat cinematography tutorials, AI news, and just a little bit of OIIA.
  - nancyminusone 2y ago
    "my feed good, your feed bad"
- thehappypm 2y ago
  Americans indeed have free speech guarantees, but I don't think it's quite so clear that foreign platforms have a constitutional right to provide a platform for said speech. How far does it go? Does a North Korean or Iranian or Cuban app have a guaranteed right to exist in America because some Americans use it for their speech?
- Salgat 2y ago
  It's not a ban, it's a forced divestment from Chinese ownership. The real question is why Bytedance isn't willing to take fair market value for Tiktok instead of just losing everything, since that makes no sense if this was just "business" and there weren't ulterior motives involved.
  - redserk 2y ago
    If I owned a business in another country and that other country coerced me to sell against my wishes, I'd be very skeptical about receiving the proceeds from the sale. So TikTok sells to a domestic company, domestic company wants to wire over $40bn to ByteDance but before the transfer goes through the Treasury Department decides a $40bn payment shouldn't be sent to a "foreign adversary". It's my understanding that the Treasury has a lot of leeway in this.
    - Salgat 2y ago
      No company retains ownership if the purchase doesn't go through. They could also simply require payment up front as part of the sale terms before transfer of the platform. They've had nearlt a year to arrange all of this.
oldpersonintx 2y ago
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ranger_danger 2y ago
> If the Supreme Court allows the government to shut down an entire platform on such a flimsy evidentiary record, it would set a disturbing precedent for future government restrictions on online speech. Something something PATRIOT Act.
- bilbo0s 2y ago
  The patriot act was supported by everyone when it became law. In fact, one senator had the unmitigated gall to ask the rest of congress, “but what about Constitutional freedoms?”. So the rest of us promptly removed him from office and replaced him with a more law and order type guy. That was pretty much the only resistance to that law at the time. All that to say, you get what you vote for. And we’ve been voting very poorly for well over thirty years. In any organization, you hire that poorly for that long and you will naturally have some deleterious consequences.
  - Hizonner 2y ago
    > The patriot act was supported by everyone when it became law. I was at the time a US citizen, and I thought it was moronic authoritarian bullshit. It was basically written by taking every obnoxious proposal that various cops and spies had been having trouble getting passed, shoving them all in one document, and rushing it through unexamined. In response to essentially no surprising new information, at that. ... and lots of other people said that. I'll give you that the majority of you supported it, and that the people in Congress (who tend to have a personality type with a certain kind of blindness) supported it. "Everyone" didn't support it.
kelseyfrog 2y ago
The authors Ashley Gorski and Patrick Toomey seem to think that the rule of law and advocating for consistent ruling on constitutionality will have an effect. If I’ve learned anything about how the Supreme Court works, it’s that this is a political calculation, not a legal one. The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.
- qingcharles 2y ago
  All courts are, sadly, political because judges are human.
  - Barrin92 2y ago
    It highly depends on the design of the judicial system. As individual people obviously everyone has political opinions, but you can shield the judicial system from being politized. Systems like in Israel where judges or judicial committees have a major say in appointment of judges removes a lot of politics from the equation. That's how the Prussian/German bureaucracy was designed too. Lifetime civil service and merit based selection basically means the bureaucracy manages itself removed from the political process. The US system is extremely personalized with elections and appointments so it's uniquely nepotistic in a lot of ways.
    - qingcharles 2y ago
      I'd definitely love to learn about better designed justice systems. A lot of the systems in the USA work to an extent, but there are better solutions. The fed judges often speak about how the 50-state system in the USA should allow experiments in different areas of law and allow the best ones to win, but it doesn't work as effectively as it should.
- femiagbabiaka 2y ago
  I mean there's an irony inherent in the way the Supreme Court works in the modern American era: judicial review is not present anywhere in the Constitution, and yet the Supreme Court uses it to uphold or strike down law according to the Constitution. It's inherently a broken branch of government and it was a mistake for the Democrats to base the last 50-70 years of social progress on leveraging it.
breadwinner 2y ago
TikTok is NOT being banned. TikTok can continue unmodified if it transfers ownership to anyone outside China.
- commandlinefan 2y ago
  Ok, but I think that's as unconstitutional as a ban, by the same logic. But I'm not a lawyer.
  - Salgat 2y ago
    How so? Generally speaking, foreign entities do not have the same constitutional guarantees as domestic with regard to laws concerning national security. Mind you, if this was a domestically owned platform, they would have a very strong case.
    - otterley 2y ago
      Even for domestic companies, we've used consent decrees to force them to divest businesses (Standard Oil, AT&T, etc.) after they've been held in violation of antitrust law.
- Ateoto 2y ago
  What happens if they refuse to transfer ownership?
  - CubsFan1060 2y ago
    Sounds like they are preparing to shut down in the US. I don't think there's any reason they can't continue as a web app. I think American companies are barred from doing business with them. https://gizmodo.com/tiktok-will-reportedly-shut-down-its-app-completely-on-sunday-2000550589 https://gizmodo.com/tiktok-will-reportedly-shut-down-its-app...
- otterley 2y ago
  The ACLU is staffed with extremely competent First Amendment attorneys and yet they seem to be intentionally muddying the water about this. As a 1A scholar (and ACLU supporter) myself, I find it extremely frustrating.
russdpale 2y ago
I just wish they wouldn't stop with tik tok. Facebook, twitter and all the rest present the same danger.
- thatguymike 2y ago
  ...Explicit CCP control?
  - archagon 2y ago
    The equivalent, for sure. Especially with Zuckerberg and Musk veering hard right recently.
  - jdc0589 2y ago
    I haven't heard the Zuk as a CCP asset conspiracy theory yet. only a matter of time.
  - DonHopkins 2y ago
    Even worse than explicit CCP control.
CryptoCoreMedia 2y ago
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xutopia 2y ago
We all know it's just a way for Musk and others to get a really popular social media for cheap. This ban has nothing to do with anything else than that.
- thehappypm 2y ago
  Which is why the law was signed by .. checks notes.. Joe Biden?
  - deleted 2y ago
    [deleted]
  - DonHopkins 2y ago
    Because he's both an evil genius and a senile old man at the same time, just like Reagan. President Reagan, Mastermind - SNL: https://www.youtube.com/watch?v=b5wfPlgKFh8 https://www.youtube.com/watch?v=b5wfPlgKFh8
  - hindsightbias 2y ago
    He bailed out SVB and Sachs didn't even give him a t-shirt.
  - BeefWellington 2y ago
    Well, to be fair, the law wasn't individually passed by Biden. It was stuffed into a foreign aid bill aimed at supplying both Ukraine and Israel, as well as enforcing additional sanctions on Russia.[1] It's not entirely clear if Biden thinks it's a good move but honestly I doubt very much he has his own opinion on this as it is. [1]: https://docs.house.gov/billsthisweek/20240415/HSupp_01_xml.pdf https://docs.house.gov/billsthisweek/20240415/HSupp_01_xml.p...
- computerdork 2y ago
  ridiculous
psunavy03 2y ago
TikTok is not being banned. TikTok is being required to sell to a non-Chinese stakeholder in order to mitigate the national security threat of it being indirectly controlled by the Chinese Communist Party. These are not the same thing, and it's depressing how vulnerable people seem to be to propaganda anymore. No one can even read a legal brief or a law.
- moralestapia 2y ago
  Yeah, and what if they don't comply?
- slowmovintarget 2y ago
  Absolutely, all of these articles are appeals to emotion. I imagine that works especially for the folks who have an addiction to the propaganda dispenser.
- cma 2y ago
  Microsoft is not being banned from China. China just asks that Microsoft sell itself to a non-American company or they will be banned (but it's not a ban).
wedn3sday 2y ago
Another bad take by the nazi defenders over at the ACLU. If the same people behind tiktok tried to buy the Washington Post or CNN they would be blocked by existing laws prohibiting foreign adversaries from controlling American media companies, but somehow its fine if its social media? For better or worse social media is where a huge amount of people get their news these days, and unless we want Putin to run the NYT we need laws in place to stop foreign billionaires from filling the discourse with Russian/Chinese/Saudi propaganda (more than they already do).
ccvannorman 2y ago
If I had children aged 7-17 and felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness, and if I was unable to control their access to it, I guess I might appreciate that my government had banned it. But, as others have mentioned, it sets a dangerous precedent. If nothing else, this attempted ban has raised national awareness about the negative impacts of TikTok. What could the US Federal Government do instead, assuming it is important to consider such platforms as per their effects on the population? If China sold candies that contained poison and marketed them to Us children, it would be easy, since the FDA prohibits this. If the FDA didn't exist, perhaps poisoned candy sales would prompt the creation of such a regulatory body. So I guess I oppose the ban while recognizing the danger, and suggest we consider regulating digital goods in the same manner as consumable foods; if provable harmful effects are evident then that is grounds for a ban of a product on the basis of health protection.
- ccvannorman 2y ago
  A very naive and hopeful part of me would wish for Facebook, Twitter, and other vapidness-enhancing platforms be regulated too. But the untrusting, freedom loving red-blooded American in me is also wary of government controls and power consolidation bordering on censorship. No easy answers I suppose; we'll just have to find a way to thrive in spite of platforms that profit from our wasted time.
  - amarcheschi 2y ago
    Hey, one platform is Chinese, the others are American. That's the difference you're looking for
- croes 2y ago
  > felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness A ban based on a feeling?
- glitchc 2y ago
  I think that's where we were with seatbelts in the 1950s, tobacco in the 1920s and alcohol in the 1850s. In all of those cases, society ultimately decided that guardrails were needed.
egberts1 2y ago
We are getting Lemonade 8 app for US TikTok users to continue.
DarkKnightKing 2y ago
Huawei and several other companies have faced this. Several American companies face this in China. Its not unprecedented. Are you suggesting its unconstitutional because freedom of expression is being curbed? Thats not true, those creators have other platforms to post their content.
- teqsun 2y ago
  To quote directly from the linked article: "The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead."
lenerdenator 2y ago
You can still access it through the mobile site, no?
- nyantaro1 2y ago
  From other comments I have read, the web version should be safe from this
slowmovintarget 2y ago
All of these posts keep talking about banning TikTok... The law doesn't ban TikTok. It bans its continued operation in the U.S. under the ownership of a foreign adversary. The law: > It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of ) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following: ... In order to take this seriously as speech infringement, you'd have to define software as speech. Precedent holds that the expressive part (source code) is speech, but that the functional part that operates is not speech. This law bans the software function.
TheCapeGreek 2y ago
The word around socials seems to be that users are just moving to Rednote, another Chinese social media app - doesn't that just defeat the purpose of this and end up with a cat and mouse game?
belorn 2y ago
Banning citizens from using the app seems unconstitutional, but is preventing the the company ByteDance to operate inside the US unconstitutional? Those two seems like two completely different questions even if the outcome is similar. From a EU perspective, regulating what companies do is not in conflict at all with human rights. The privilege to operate a company, provide advertisement, sell products and services, to use the local economy, all that is regulated. It should also be mentioned that companies generally tend to receive some benefits that individual persons do not, especially when it comes to taxes, risk taking, and debt. Companies can own and operate things which private person can't. The distinction between the rights, responsibilities and privileges that a private person has compared to a commercial company are fairly major. Why is the ACLU talking like TikTok is a US citizen which free speech rights are being infringed?
- teqsun 2y ago
  Really? From my reading of it, it seems to focus how such a ban would inhibit the speech of US citizens who use the application, not TikTok as an entity.
  - belorn 2y ago
    Regulation that dictate how a company may operate will naturally inhibit the consumers if the regulations is so heavy that the company will no longer exist. That doesn't mean such regulation is impossible. The ban does not say that US citizens are not allowed to use the application (or apply speech). The method of the ban is similar to those blocking torrent sites, as in blocking them on an ISP level. ISP already operating a fairly large block lists, both in the US and EU, blocking everything from pirate sites, scam sites, and more serious criminal ventures. The legal frame work generally do not talk about users (outside of deep packet inspection territory). They simply get applied more like industry regulation. It should be noted that the 1965 case has not prevented ISP block lists, and I would assume that the long list of pirate cases where ISP has objected to block lists in the last 30+ years has thoroughly tested the 1965 case. We can also look at the very recent net neutrality situation, where ISP has very much been defined as something very different from the postal service. As a minor aspect being said in articles describing the ban, the ban would not prevent users from accessing the app if its already installed. As an ISP block it would break the functionality of the app, and new users would only get a spinning bar when trying to download it, but citizens would not be legally bound by the ban. That is mostly semantics but there is a legal distinction.
paxys 2y ago
Social media platforms hosted in the USA are voluntarily bending to the President's will. Social media platforms hosted outside the USA are going to be banned, because national security. People may not realize or acknowledge it, but we are in the very last days of "free speech" on the internet.
- aprilthird2021 2y ago
  Unfortunately people are cheering it on :/
4ndrewl 2y ago
How does banning a platform reduce free speech? Which topics can you only discuss on TikTok and not elsewhere?
teqsun 2y ago
I will say: Tiktok is very popular in many countries other than America. Forcing a company to sell its entire business just to continue operations in one country seems flawed, even if the US constitutes a major share.
yodon 2y ago
The ACLU has really lost its way
henryfjordan 2y ago
From the ACLU amicus brief (linked in the article) > Although the D.C. Circuit ostensibly applied strict scrutiny in upholding the ban, it subjected the government’s assertions to little genuine scrutiny in the end Does the author understand checks-and-balances? The DC Circuit found that Congress did a lot to try to investigate and come to an agreement with Bytedance that would resolve their concerns. After all that, it's Congress' power to decide what to do, not the courts. They are not just allowed to second-guess congress. They can only look at the "how" of the law, the "why" is largely non-justiciable. And if the goal is to stop CCP speech, through the TikTok algo, then there's really nothing to do other than ban TikTok. Personally I think the ban is xenophobic and we should instead regulate ALL of these apps (X, Meta...) but it is legal
iteratethis 2y ago
I think the times have changed. The Great Powers of the world are becoming more hostile to each other yet we continue to operate the naive way. We play by the rules but our rivals have no rules. This makes us weak, exploitable and ineffective. As such, I support the ban, for the sake of doing something. I admit it's not ideal but we live in a messy and tense world. User's speech isn't really taken away, just use another dopamine feed. Better yet: use none. You'll find it's in particular activists protesting this move.
NuSkooler 2y ago
The Supreme Court is bought and paid for by the group that wants to <s>ban</s> likely take over. So, regardless of what your thoughts on TikTok are, it's mostly all irrelevant.
disambiguation 2y ago
I wonder how long until public discourse is willing to acknowledge that social media is not just a fun little way to stay in touch with old friends, but a straight up tool of surveillance and influence. For those that agree, do you think governments should do nothing? For those not convinced, what more evidence do you need?
SmarsJerry 2y ago
A foreign citizen or foreign corporation does not have first amendment rights so this is constitutional. However they should not ban TikTok if they want to hold any moral high ground over China.
stewardyunn 2y ago
AppStore should have had some review mechanisms from the beginning. When an app reaches a certain scale, it should be required to ensure that its data centers are supervised by government technical personnel and accessible to the government. This approach is similar to China's, because data is valuable—it can feed algorithms, making them more powerful and making the "candy" for kids even more addictive. The platforms where data resides can also do many things; just look at what Elon did on X regarding the election. Otherwise, it's like shooting oneself in the foot. By the way, I found a ridiculous website https://www.tiktok-alternatives.com/ https://www.tiktok-alternatives.com/ Zack is just too funny.
chrismcb 2y ago
Baking tik tok isn't a first amendment issue. As much of an advocate for free speech and the first amendment, I think Congress has the right to regulate trade and prevent a foreign company from doing business on American soil.

35 points by teqsun 2y ago

First, let me preface that I despise TikTok and I think it is mostly garbage content-wise, however this proposal is simply un-American. Concerns about data privacy and foreign influence are legit, but banning an entire communication platform used by 170 million Americans based on hypothetical threats goes against core First Amendment principles especially considering the government's inability to provide concrete evidence of harm or to explain why less restrictive measures wouldn't suffice. If we allow platforms to be banned based on their parent company's nationality rather than actual demonstrated threats, what is next?

pmarreck 2y ago
American platforms are already banned in China. Some of this is a tit-for-tat, I surmise. <opinion> The embracing of terrorist sympathizers across the platform is not helping. </opinion>
- Hizonner 2y ago
  Turns out that US law (and custom) says the US can't do that particular kind of "tit for tat". I wasn't aware that China had a veto over the US Constitution.
  - paxys 2y ago
    Is it? Congress has the authority to regulate international trade. If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not. The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again.
    - Hizonner 2y ago
      > Is it? Congress has the authority to regulate international trade. Not as a pretext for speech regulation. And the right to free speech in the US is understood to include the right to listen. > If TikTok was shipping books into the USA no one would be arguing whether it would be constitutional to ban them or not. I'd like to think nobody would be arguing, because that would be clearly unconstitutional. But in fact people probably would try to claim it was somehow acceptable. They'd be wrong. They might get away with a ban on all books from a given country, if they could show it was really, truly intended to affect only the physical process of printing and the market for that service. The instant it's even peripherally intended to affect the content, it's unconstitutional. And the TikTok thing is about content and who controls content. You could buy obvious Russian propaganda in the US in the middle of the Cold War. > The constitution hasn't been updated for the internet and smartphones but they absolutely can be governed the same way, as courts have ruled over and over again. Great. Since banning book imports would be blatantly unconstitutional, so is this bullshit.
    - mempko 2y ago
      Except your analogy is flawed. Tiktok is selling "books" written and published in the US. It's not like the Tiktok's themselves are all Chinese made.
      - paxys 2y ago
        > Tiktok is selling "books" written and published in the US The entire argument is about their algorithm. They are not written and published in the USA if someone in China controls what goes in them.
- fsflover 2y ago
  > American platforms are already banned in China. So if Americans are discriminated in China, would you suggest to do the same with the Chinese in US?
  - elmerfud 2y ago
    That's making a false analogy and is a logical fallacy trying to compare the two. Finding ways to level international trade to ensure fair trading and equal access to markets is definitely within the government's purview to do and within the national interests of our country. One rule that I would like to see implemented to equalize trade is to not allow foreign citizens or corporations to be able to purchase real estate in this country or become majority shareholders in any corporation if the country of their citizenship or incorporation does not allow the same reciprocity. It is foolish to allow this kind of imbalanced ownership to happen.
    - deleted 2y ago
      [deleted]
  - computerdork 2y ago
    You're statement is true, would should not do the same thing in terms of discrimination, but the two situations are a bit different. Your talking about culture, while this deals more with a outside government's influence on our populace. For me, think the ACLU makes a valid argument, that this could set a bad precedent. But, the Chinese government already has a system to at least partially monitor and influence what some businesses do (requiring corporations to have role for the CCP in their charters). https://www.csis.org/analysis/new-challenge-communist-corporate-governance https://www.csis.org/analysis/new-challenge-communist-corpor.... It doesn't seem out of the realm of possibility that the CCP uses tik-tok to influence the US populace (think Russia and its use of social media during the 2016 election of Trump). Yeah, this situation is pretty messy.
ranger_danger 2y ago
I have to assume that either there is some ulterior motive at play, or the national security risks themselves cannot be exposed for national security reasons and that this is incompatible with the current justice system unless something like a secret FISA court is involved. Of course that would be a convenient excuse if it weren't actually real, but how would we ever know...
teqsun 2y ago
In a strange way, if it was a blanket China ban, it would almost feel less arbitrary than this, which was crafted to target ByteDance. The fact they packaged it inside a funding bill that would have been politically unpopular for Congress to oppose also makes me speculate that they felt it wasn't strong enough to stand up to scrutiny on its own merits
- matthewdgreen 2y ago
  The law technically doesn't limit itself to TikTok. It seems to cover any application or foreign company that meets certain criteria, which include (1) the President identifying it and writing some reports, and (2) some restrictions on the nature of the app, which would cover other social media. It is obviously written to cover TikTok initially (the name even appears in the bill) but the powers it grants are broader. Not sure if this is better or worse.
qoez 2y ago
Wouldn't seem very un-american to prohibit a radio station with a pro soviet leaning stance during the cold war
qingcharles 2y ago
Anyone who receives garbage content on TikTok has likely gotten themselves into a bad set of recommendations. I watched someone yesterday cycling through their feed and it was 100% brainrot. My feed is very enjoyable: mostly neat cinematography tutorials, AI news, and just a little bit of OIIA.
- nancyminusone 2y ago
  "my feed good, your feed bad"
thehappypm 2y ago
Americans indeed have free speech guarantees, but I don't think it's quite so clear that foreign platforms have a constitutional right to provide a platform for said speech. How far does it go? Does a North Korean or Iranian or Cuban app have a guaranteed right to exist in America because some Americans use it for their speech?
Salgat 2y ago
It's not a ban, it's a forced divestment from Chinese ownership. The real question is why Bytedance isn't willing to take fair market value for Tiktok instead of just losing everything, since that makes no sense if this was just "business" and there weren't ulterior motives involved.
- redserk 2y ago
  If I owned a business in another country and that other country coerced me to sell against my wishes, I'd be very skeptical about receiving the proceeds from the sale. So TikTok sells to a domestic company, domestic company wants to wire over $40bn to ByteDance but before the transfer goes through the Treasury Department decides a $40bn payment shouldn't be sent to a "foreign adversary". It's my understanding that the Treasury has a lot of leeway in this.
  - Salgat 2y ago
    No company retains ownership if the purchase doesn't go through. They could also simply require payment up front as part of the sale terms before transfer of the platform. They've had nearlt a year to arrange all of this.

oldpersonintx 2y ago

[dead]

ranger_danger 2y ago

> If the Supreme Court allows the government to shut down an entire platform on such a flimsy evidentiary record, it would set a disturbing precedent for future government restrictions on online speech. Something something PATRIOT Act.

bilbo0s 2y ago
The patriot act was supported by everyone when it became law. In fact, one senator had the unmitigated gall to ask the rest of congress, “but what about Constitutional freedoms?”. So the rest of us promptly removed him from office and replaced him with a more law and order type guy. That was pretty much the only resistance to that law at the time. All that to say, you get what you vote for. And we’ve been voting very poorly for well over thirty years. In any organization, you hire that poorly for that long and you will naturally have some deleterious consequences.
- Hizonner 2y ago
  > The patriot act was supported by everyone when it became law. I was at the time a US citizen, and I thought it was moronic authoritarian bullshit. It was basically written by taking every obnoxious proposal that various cops and spies had been having trouble getting passed, shoving them all in one document, and rushing it through unexamined. In response to essentially no surprising new information, at that. ... and lots of other people said that. I'll give you that the majority of you supported it, and that the people in Congress (who tend to have a personality type with a certain kind of blindness) supported it. "Everyone" didn't support it.

kelseyfrog 2y ago

The authors Ashley Gorski and Patrick Toomey seem to think that the rule of law and advocating for consistent ruling on constitutionality will have an effect. If I’ve learned anything about how the Supreme Court works, it’s that this is a political calculation, not a legal one. The outcomes are decided first, and then jurisprudence is employed to substantiate them — not the other way around.

qingcharles 2y ago
All courts are, sadly, political because judges are human.
- Barrin92 2y ago
  It highly depends on the design of the judicial system. As individual people obviously everyone has political opinions, but you can shield the judicial system from being politized. Systems like in Israel where judges or judicial committees have a major say in appointment of judges removes a lot of politics from the equation. That's how the Prussian/German bureaucracy was designed too. Lifetime civil service and merit based selection basically means the bureaucracy manages itself removed from the political process. The US system is extremely personalized with elections and appointments so it's uniquely nepotistic in a lot of ways.
  - qingcharles 2y ago
    I'd definitely love to learn about better designed justice systems. A lot of the systems in the USA work to an extent, but there are better solutions. The fed judges often speak about how the 50-state system in the USA should allow experiments in different areas of law and allow the best ones to win, but it doesn't work as effectively as it should.
femiagbabiaka 2y ago
I mean there's an irony inherent in the way the Supreme Court works in the modern American era: judicial review is not present anywhere in the Constitution, and yet the Supreme Court uses it to uphold or strike down law according to the Constitution. It's inherently a broken branch of government and it was a mistake for the Democrats to base the last 50-70 years of social progress on leveraging it.

breadwinner 2y ago

TikTok is NOT being banned. TikTok can continue unmodified if it transfers ownership to anyone outside China.

commandlinefan 2y ago
Ok, but I think that's as unconstitutional as a ban, by the same logic. But I'm not a lawyer.
- Salgat 2y ago
  How so? Generally speaking, foreign entities do not have the same constitutional guarantees as domestic with regard to laws concerning national security. Mind you, if this was a domestically owned platform, they would have a very strong case.
  - otterley 2y ago
    Even for domestic companies, we've used consent decrees to force them to divest businesses (Standard Oil, AT&T, etc.) after they've been held in violation of antitrust law.
Ateoto 2y ago
What happens if they refuse to transfer ownership?
- CubsFan1060 2y ago
  Sounds like they are preparing to shut down in the US. I don't think there's any reason they can't continue as a web app. I think American companies are barred from doing business with them. https://gizmodo.com/tiktok-will-reportedly-shut-down-its-app-completely-on-sunday-2000550589 https://gizmodo.com/tiktok-will-reportedly-shut-down-its-app...
otterley 2y ago
The ACLU is staffed with extremely competent First Amendment attorneys and yet they seem to be intentionally muddying the water about this. As a 1A scholar (and ACLU supporter) myself, I find it extremely frustrating.

russdpale 2y ago

I just wish they wouldn't stop with tik tok. Facebook, twitter and all the rest present the same danger.

thatguymike 2y ago
...Explicit CCP control?
- archagon 2y ago
  The equivalent, for sure. Especially with Zuckerberg and Musk veering hard right recently.
- jdc0589 2y ago
  I haven't heard the Zuk as a CCP asset conspiracy theory yet. only a matter of time.
- DonHopkins 2y ago
  Even worse than explicit CCP control.

CryptoCoreMedia 2y ago

[dead]

xutopia 2y ago

We all know it's just a way for Musk and others to get a really popular social media for cheap. This ban has nothing to do with anything else than that.

thehappypm 2y ago
Which is why the law was signed by .. checks notes.. Joe Biden?
- deleted 2y ago
  [deleted]
- DonHopkins 2y ago
  Because he's both an evil genius and a senile old man at the same time, just like Reagan. President Reagan, Mastermind - SNL: https://www.youtube.com/watch?v=b5wfPlgKFh8 https://www.youtube.com/watch?v=b5wfPlgKFh8
- hindsightbias 2y ago
  He bailed out SVB and Sachs didn't even give him a t-shirt.
- BeefWellington 2y ago
  Well, to be fair, the law wasn't individually passed by Biden. It was stuffed into a foreign aid bill aimed at supplying both Ukraine and Israel, as well as enforcing additional sanctions on Russia.[1] It's not entirely clear if Biden thinks it's a good move but honestly I doubt very much he has his own opinion on this as it is. [1]: https://docs.house.gov/billsthisweek/20240415/HSupp_01_xml.pdf https://docs.house.gov/billsthisweek/20240415/HSupp_01_xml.p...
computerdork 2y ago
ridiculous

psunavy03 2y ago

TikTok is not being banned. TikTok is being required to sell to a non-Chinese stakeholder in order to mitigate the national security threat of it being indirectly controlled by the Chinese Communist Party. These are not the same thing, and it's depressing how vulnerable people seem to be to propaganda anymore. No one can even read a legal brief or a law.

moralestapia 2y ago
Yeah, and what if they don't comply?
slowmovintarget 2y ago
Absolutely, all of these articles are appeals to emotion. I imagine that works especially for the folks who have an addiction to the propaganda dispenser.
cma 2y ago
Microsoft is not being banned from China. China just asks that Microsoft sell itself to a non-American company or they will be banned (but it's not a ban).

wedn3sday 2y ago

Another bad take by the nazi defenders over at the ACLU. If the same people behind tiktok tried to buy the Washington Post or CNN they would be blocked by existing laws prohibiting foreign adversaries from controlling American media companies, but somehow its fine if its social media? For better or worse social media is where a huge amount of people get their news these days, and unless we want Putin to run the NYT we need laws in place to stop foreign billionaires from filling the discourse with Russian/Chinese/Saudi propaganda (more than they already do).

ccvannorman 2y ago

If I had children aged 7-17 and felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness, and if I was unable to control their access to it, I guess I might appreciate that my government had banned it. But, as others have mentioned, it sets a dangerous precedent. If nothing else, this attempted ban has raised national awareness about the negative impacts of TikTok. What could the US Federal Government do instead, assuming it is important to consider such platforms as per their effects on the population? If China sold candies that contained poison and marketed them to Us children, it would be easy, since the FDA prohibits this. If the FDA didn't exist, perhaps poisoned candy sales would prompt the creation of such a regulatory body. So I guess I oppose the ban while recognizing the danger, and suggest we consider regulating digital goods in the same manner as consumable foods; if provable harmful effects are evident then that is grounds for a ban of a product on the basis of health protection.

ccvannorman 2y ago
A very naive and hopeful part of me would wish for Facebook, Twitter, and other vapidness-enhancing platforms be regulated too. But the untrusting, freedom loving red-blooded American in me is also wary of government controls and power consolidation bordering on censorship. No easy answers I suppose; we'll just have to find a way to thrive in spite of platforms that profit from our wasted time.
- amarcheschi 2y ago
  Hey, one platform is Chinese, the others are American. That's the difference you're looking for
croes 2y ago
> felt China was intentionally nudging them via algorithmic suggestions away from STEM and toward vapidness A ban based on a feeling?
glitchc 2y ago
I think that's where we were with seatbelts in the 1950s, tobacco in the 1920s and alcohol in the 1850s. In all of those cases, society ultimately decided that guardrails were needed.

egberts1 2y ago

We are getting Lemonade 8 app for US TikTok users to continue.

DarkKnightKing 2y ago

Huawei and several other companies have faced this. Several American companies face this in China. Its not unprecedented. Are you suggesting its unconstitutional because freedom of expression is being curbed? Thats not true, those creators have other platforms to post their content.

teqsun 2y ago
To quote directly from the linked article: "The law’s supporters have, at times, minimized the ban’s impact on the First Amendment, citing the mistaken belief that TikTok users can simply move to another platform. From a constitutional perspective, this is nonsense. The government can’t justify shutting down The Washington Post because readers can simply buy The New York Times instead."

lenerdenator 2y ago

You can still access it through the mobile site, no?

nyantaro1 2y ago
From other comments I have read, the web version should be safe from this

slowmovintarget 2y ago

All of these posts keep talking about banning TikTok... The law doesn't ban TikTok. It bans its continued operation in the U.S. under the ownership of a foreign adversary. The law: > It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of ) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following: ... In order to take this seriously as speech infringement, you'd have to define software as speech. Precedent holds that the expressive part (source code) is speech, but that the functional part that operates is not speech. This law bans the software function.

TheCapeGreek 2y ago

The word around socials seems to be that users are just moving to Rednote, another Chinese social media app - doesn't that just defeat the purpose of this and end up with a cat and mouse game?

belorn 2y ago

Banning citizens from using the app seems unconstitutional, but is preventing the the company ByteDance to operate inside the US unconstitutional? Those two seems like two completely different questions even if the outcome is similar. From a EU perspective, regulating what companies do is not in conflict at all with human rights. The privilege to operate a company, provide advertisement, sell products and services, to use the local economy, all that is regulated. It should also be mentioned that companies generally tend to receive some benefits that individual persons do not, especially when it comes to taxes, risk taking, and debt. Companies can own and operate things which private person can't. The distinction between the rights, responsibilities and privileges that a private person has compared to a commercial company are fairly major. Why is the ACLU talking like TikTok is a US citizen which free speech rights are being infringed?

teqsun 2y ago
Really? From my reading of it, it seems to focus how such a ban would inhibit the speech of US citizens who use the application, not TikTok as an entity.
- belorn 2y ago
  Regulation that dictate how a company may operate will naturally inhibit the consumers if the regulations is so heavy that the company will no longer exist. That doesn't mean such regulation is impossible. The ban does not say that US citizens are not allowed to use the application (or apply speech). The method of the ban is similar to those blocking torrent sites, as in blocking them on an ISP level. ISP already operating a fairly large block lists, both in the US and EU, blocking everything from pirate sites, scam sites, and more serious criminal ventures. The legal frame work generally do not talk about users (outside of deep packet inspection territory). They simply get applied more like industry regulation. It should be noted that the 1965 case has not prevented ISP block lists, and I would assume that the long list of pirate cases where ISP has objected to block lists in the last 30+ years has thoroughly tested the 1965 case. We can also look at the very recent net neutrality situation, where ISP has very much been defined as something very different from the postal service. As a minor aspect being said in articles describing the ban, the ban would not prevent users from accessing the app if its already installed. As an ISP block it would break the functionality of the app, and new users would only get a spinning bar when trying to download it, but citizens would not be legally bound by the ban. That is mostly semantics but there is a legal distinction.

paxys 2y ago

Social media platforms hosted in the USA are voluntarily bending to the President's will. Social media platforms hosted outside the USA are going to be banned, because national security. People may not realize or acknowledge it, but we are in the very last days of "free speech" on the internet.

aprilthird2021 2y ago
Unfortunately people are cheering it on :/

4ndrewl 2y ago

How does banning a platform reduce free speech? Which topics can you only discuss on TikTok and not elsewhere?

teqsun 2y ago

I will say: Tiktok is very popular in many countries other than America. Forcing a company to sell its entire business just to continue operations in one country seems flawed, even if the US constitutes a major share.

yodon 2y ago

The ACLU has really lost its way

henryfjordan 2y ago

From the ACLU amicus brief (linked in the article) > Although the D.C. Circuit ostensibly applied strict scrutiny in upholding the ban, it subjected the government’s assertions to little genuine scrutiny in the end Does the author understand checks-and-balances? The DC Circuit found that Congress did a lot to try to investigate and come to an agreement with Bytedance that would resolve their concerns. After all that, it's Congress' power to decide what to do, not the courts. They are not just allowed to second-guess congress. They can only look at the "how" of the law, the "why" is largely non-justiciable. And if the goal is to stop CCP speech, through the TikTok algo, then there's really nothing to do other than ban TikTok. Personally I think the ban is xenophobic and we should instead regulate ALL of these apps (X, Meta...) but it is legal

iteratethis 2y ago

I think the times have changed. The Great Powers of the world are becoming more hostile to each other yet we continue to operate the naive way. We play by the rules but our rivals have no rules. This makes us weak, exploitable and ineffective. As such, I support the ban, for the sake of doing something. I admit it's not ideal but we live in a messy and tense world. User's speech isn't really taken away, just use another dopamine feed. Better yet: use none. You'll find it's in particular activists protesting this move.

NuSkooler 2y ago

The Supreme Court is bought and paid for by the group that wants to <s>ban</s> likely take over. So, regardless of what your thoughts on TikTok are, it's mostly all irrelevant.

disambiguation 2y ago

I wonder how long until public discourse is willing to acknowledge that social media is not just a fun little way to stay in touch with old friends, but a straight up tool of surveillance and influence. For those that agree, do you think governments should do nothing? For those not convinced, what more evidence do you need?

SmarsJerry 2y ago

A foreign citizen or foreign corporation does not have first amendment rights so this is constitutional. However they should not ban TikTok if they want to hold any moral high ground over China.

stewardyunn 2y ago

AppStore should have had some review mechanisms from the beginning. When an app reaches a certain scale, it should be required to ensure that its data centers are supervised by government technical personnel and accessible to the government. This approach is similar to China's, because data is valuable—it can feed algorithms, making them more powerful and making the "candy" for kids even more addictive. The platforms where data resides can also do many things; just look at what Elon did on X regarding the election. Otherwise, it's like shooting oneself in the foot. By the way, I found a ridiculous website https://www.tiktok-alternatives.com/ https://www.tiktok-alternatives.com/ Zack is just too funny.

chrismcb 2y ago

Baking tik tok isn't a first amendment issue. As much of an advocate for free speech and the first amendment, I think Congress has the right to regulate trade and prevent a foreign company from doing business on American soil.