Regardless of one’s view on the outcome, this case is a reminder that textualism as a legal philosophy stands on shaky ground. This case is decided not on some strict analysis of the words written by a legislator, but on the court’s subjective view that there is a compelling national interest (which in turn seems based on speculation about the future, rather than a factual analysis of events). Textualism might give t…
Supreme Court upholds TikTok ban, but Trump might offer lifeline
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Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#92Link to opinion: https://www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf
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(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.—The term “foreign adversary controlled application” means a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate), by—
(A) any of—
(i) ByteDance, Ltd.;
(ii) TikTok;
(iii) a subsidiary of or a successor to an entity identified in clause (i) or (ii) that is controlled by a foreign adversary; or
(iv) an entity owned or controlled, directly or indirectly, by an entity identified in clause (i), (ii), or (iii); or
(B) a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present a significant threat to the national security of the United States following the issuance of—
(I) a public notice proposing such determination; and
(II) a public report to Congress, submitted not less than 30 days before such determination, describing the specific national security concern involved and containing a classified annex and a description of what assets would need to be divested to execute a qualified divestiture.
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The way I read this is that Congress is bootstrapping the law with its own finding that ByteDance, Ltd/TikTok are Foreign Adversary Controlled Applications, but then, in (3)(B), the President is responsible for determining any other entities this law should cover given previously stated parameters (what they mean by "covered entity" here), using the procedure it then provides.
I believe that addresses the concern about this being a "Bill of Attainder".
Edit: Obviously IANAL, but it also doesn't appear that this issue of this being a Bill of Attainder was raised by TikTok, nor was it considered in this opinion. Perhaps they will do so in a separate action, or already have and it just hasn't made its way to the court(?), but if it were such a slam dunk defense, you think their expensive lawyers would have raised it.
[1]: https://www.congress.gov/bill/118th-congress/house-bill/7521...
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#93By the given reasoning every official at the EU wonders why they ever allowed Google, Facebook or Twitter to exist. This is balkanization.
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#94I'm sure the other countries are watching this and considering what the US is doing with their data in its apps.
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#95Everybody knows the fearmongering about Chinese control and manipulation is a smokescreen. The real reason is that Tiktok doesn't fall in line with State Department propaganda [1].
It's noteworthy that SCOTUS sidestepped this issue entirely by not even considering the secret evidence the government brought.
That being said, it's unsurprising because you can make a strictly commerce-based argument that has nothing to do with speech and the First Amendment. Personally, I think reciprocity would've been a far more defensible position, in that US apps like Google, FB, Youtube and IG are restricted from the Chinese market so you could demand recipricol access on strictly commerce grounds.
The best analogy is the restriction on foreign ownership of media outlets, which used to be a big deal. Back in the 1980s and 1990s, US companies would defend themselves from foreign takeovers by buying TV stations, for example. That's basically the premise of the movie Working Girl, as one (fictional) example.
Politically, the big loser here is Biden and the Democratic Party because they will be (rightly) blamed for banning a highly popular app (even though the Congressional vote was hugely bipartisan) and Trump will likely get credit for saving Tiktok.
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#96Still have no good answer on why its bad for a company that is supposedly under Chineese influence to collect this kind of information on us, and adjust and tweak an 'algorith' for displaying content. But its perfectly fine for a US company to do it? Wouldn't the right solution be to protect the citizens from all threats, foreign and domestic?
The whole case turns on foreign adversary control of the data.
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#97Still have no good answer on why its bad for a company that is supposedly under Chineese influence to collect this kind of information on us, and adjust and tweak an 'algorith' for displaying content. But its perfectly fine for a US company to do it? Wouldn't the right solution be to protect the citizens from all threats, foreign and domestic?
And domestically in the US - citizens should be demanding the dismantling of the big powerful players - which ironically the US government is against because of it's usefulness abroad..... ( let's assume for one moment, despite evidence to the contrary, that the US government doesn't use these tools of persuasion on it's own population ).
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#98This may be a bit of relevance when talking about how banning a website get applied through the legal system.
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#99Regardless of one’s view on the outcome, this case is a reminder that textualism as a legal philosophy stands on shaky ground. This case is decided not on some strict analysis of the words written by a legislator, but on the court’s subjective view that there is a compelling national interest (which in turn seems based on speculation about the future, rather than a factual analysis of events). Textualism might give t…
SCOTUS didn't have much to work with aside from level of scrutiny. They defer to Congress regarding national security.
Re: Supreme Court upholds TikTok ban, but Trump might offer lifeline
#100Still have no good answer on why its bad for a company that is supposedly under Chineese influence to collect this kind of information on us, and adjust and tweak an 'algorith' for displaying content. But its perfectly fine for a US company to do it? Wouldn't the right solution be to protect the citizens from all threats, foreign and domestic?
If China could effectively influence the American populations opinions, how would that not be bad?