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Three TikTok Influencers Influenced A Judge To Block Trump's TikTok Ban

from the now-that's-influence dept

Remember Trump’s ridiculous executive order to ban TikTok if it wasn’t sold to an American company? Then there was a grifty non-deal in which Oracle agreed to host TikTok’s new American subsidiary, though nothing about that deal appears to have been finalized, and the executive order was still somewhat in place. The first stage of the ban on the app was blocked by a judge in a lawsuit from TikTok itself. But that ruling did not (yet) block the second stage of the executive order which was set to go into effect this month.

So some good news: that too has been blocked thanks to a lawsuit from three TikTok influencers: Douglas Marland, Cosette Rinab, and Alec Chambers. The three of them filed their lawsuit in September, right after the details of the executive order came out. I don’t know much about these influencers, but I will note they had some high-powered, big time lawyers working the case for them (including the firm the judge in this very case worked at prior to being put on the bench…).

The lawsuit noted that the three influencers were a comedian, a fashion creator and a musician “each of whom has developed a significant following by creating and posting content on TikTok.” They argued that the executive order violated their 1st Amendment rights, creating prior restraint of their speech. As they correctly note, even on the flimsy “national security” basis that Trump, Wilbur Ross, and Mike Pompeo made in pushing through this executive order, you can’t just ban speech broadly like that.

The Executive Order and implementing regulations violate the First Amendment because they are unconstitutionally overbroad and an impermissible prior restraint of speech. Purportedly issued to address national security concerns, the Executive Order approaches this alleged problem with a sledgehammer, not a scalpel, as the First Amendment requires. If in fact TikTok poses national security risks, the government must identify those risks and tailor the solution narrowly to address the risks, without unnecessarily trampling on Plaintiffs? constitutional rights. The Executive Order and regulations fail to do so.

The DOJ insisted that this was all normal national security stuff (it’s not) and that the 1st Amendment claims were “meritless.” Honestly, I hope the DOJ lawyers who had to write this feel bad. It’s such a weak argument that they have to know is utter bullshit. They claim that because they’re only banning business transactions (that will make it impossible to use TikTok) that’s not the same as actually banning TikTok. They also claim — again, laughably — that the ban is narrowly tailored to the national security interests of the government. They must have been laughing (or drinking heavily) when they wrote that.

Here, the Executive Order and Commerce Identification prohibit business-to-business economic transactions with a foreign entity and its subsidiaries based on the President?s national security determinations. The fact that those prohibitions may have adverse, downstream effects on a purported forum for Plaintiffs? speech is legally irrelevant:

Let’s just say the judge was not impressed. The opinion cuts through the DOJ’s argument pretty thoroughly. Though Judge Wendy Beetlestone doesn’t issue a full ruling on all of the arguments brought by the influencers, she notes that they have established a likelihood of success that the Commerce Department’s planned implementation of the executive orders is beyond its legal authority (in legal talk: “ultra vires”).

The judge essentially laughs at the DOJ for arguing that courts are not allowed to review decisions made by the Executive Branch under the IEEPA (the national security law that Trump tried to stretch to justify this executive order). The court points out that, contrary to the DOJ’s beliefs, there are plenty of aspects of the IEEPA that courts absolutely can review — including in this case. And, in reviewing it, it seems that the one who has exceeded their authority here is not the court, but the Commerce Department. Specifically, as was noted in the case brought by TikTok that barred the first part of the Commerce Department plan, the IEEPA has a very clear exemption: it can’t be used to block “information or informational materials.” And thus, the implementation here would do that, which is not allowed under the IEEPA.

The next question, then, is whether or not these influencers have shown that they will face irreparable harm if the block goes into effect. And the judge decides that the answer is yes:

Plaintiffs have established themselves as significant influencers based on their ability to engage large audiences on the TikTok platform. If the Commerce Identification goes into effect, Plaintiffs will lose the ability to engage with their millions of followers on TikTok, and the related brand sponsorships. According to Plaintiffs, each has tried and failed to establish a following and work as an influencer on competitive platforms. Shuttering TikTok would in fact shut down Plaintiffs? influencing activities. This harm is not merely possible, but certain to occur after November 12.

Finally, the court notes that an injunction makes sense from a public interest standpoint:

The Government contends that the national security interests identified in the TikTok Executive Order and the Commerce Identification outweigh the harm Plaintiffs will suffer absent injunctive relief. But Congress has already performed a balancing act, and has determined that the President?s ability to exercise his IEEPA authority to respond to a national emergency does not extend to actions that directly or indirectly regulate the importation or exportation of informational materials…. Granting an injunction to prevent a violation of IEEPA?s informational materials exception would be consistent with this congressional determination.

Moreover, the Government?s own descriptions of the national security threat posed by the TikTok app are phrased in the hypothetical. The Government notes that TikTok?s parent company ?ByteDance has significant and close ties to the CCP which could potentially be leveraged to further [the CCP?s] agenda.? It states that one of the risks posed by TikTok ?is the possibility that the PRC government could . . . compel TikTok to provide systemic access to U.S. user?s sensitive personal information.? The Court cannot say the risk presented by the Government outweighs the public interest in enjoining the Commerce Identification, when Plaintiffs have established a clear likelihood that the Identification?s prohibitions contravene IEEPA.

And thus, the Commerce Department is blocked from implementing its planned rules to block TikTok.

There had been some chatter a few weeks back that since Trump got all the headlines he wanted out of his TikTok ban and the Oracle deal, he no longer much cares about it. The assumption was that the administration would likely just let the issue fade away, and now the court is helping that process move along. Of course, this also demonstrates what a preposterous, vindictive, unconstitutional, garbage move this whole thing was in the first place.

Filed Under: alec chambers, authority, commerce department, cosette rinab, donald trump, douglas marland, executive order, ieepa, influencers, information service, tiktok ban
Companies: tiktok

Judge Rejected Ban On TikTok Because Trump's DOJ Can't Show Any Real National Security Threat

from the because-of-course dept

Earlier today we wrote about a judge blocking Trump’s TikTok ban, though noting that the full reasoning why was under seal. Right about the time that post went up, the details were unsealed. Unlike the WeChat injunction which was done on 1st Amendment grounds, the injunction here doesn’t touch the 1st Amendment questions and just says that the Trump White House (even with presenting evidence under seal) totally failed to substantiate the national security threat of TikTok, even under the IEEPA (International Emergency Economic Powers Act) which grants the President tragically and dangerously broad powers to claim a “national emergency” to block international commerce.

As noted above, IEEPA contains a broad grant of authority to declare national emergencies and to prohibit certain transactions with foreign countries or foreign nationals that pose risks to the national security of the United States. But IEEPA also contains two express limitations relevant here: the ?authority granted to the President . . . does not include the authority to regulate or prohibit, directly or indirectly? either (a) the importation or exportation of ?information or informational materials?; or (b) ?personal communication[s], which do[] not involve a transfer of anything of value.?

We pointed out this clause when Trump’s executive order was first issued, noting that it likely doomed it, so it’s good to see the judge highlight it. The DOJ pushed back on this, saying that since it was just prohibiting certain “business-to-business economic transactions,” it wasn’t actually prohibiting the movement of information. Incredibly the DOJ also claimed it had not taken any action concerning “TikTok users themselves.” The judge more or less responds with a sarcastic “come on, you can’t be serious.”

But that argument fails to grapple with IEEPA?s text. Section 1702(b)(3) provides that IEEPA?s grant of authority ?does not include the authority to regulate or prohibit, directly or indirectly,? the cross-border transmission of ?information and informational materials.?… The content exchanged by TikTok users constitutes ?information and informational materials?; indeed, much of that content appears to be (or to be analogous to) ?publications, films, . . . photographs, . . . artworks, . . . and news wire feeds.? Id. And the purpose and effect of the Secretary?s prohibitions is to limit, and ultimately reduce to zero, the number of U.S. users who can comment on the platform and have their personal data on TikTok…. At a minimum, then, the Secretary?s prohibitions ?indirectly? ?regulate? the transmission of ?informational materials? by U.S. persons.

Moreover, Section 1702(b)(3)?s express limitation applies to ?commercial? informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of ?informational materials,? then there would have been no reason for Congress to include the word ?commercial? when defining the scope of § 1702(b)(3)?s limitation…..

To be sure, TikTok (like a news wire, which is expressly identified in IEEPA?s carveout) is primarily a conduit of ?informational materials.? In that sense, it is (among other things) a ?medium of transmission,? and IEEPA provides that this carveout applies ?regardless of format or medium of transmission.? 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials.

From there, the DOJ tried to argue that the Espionage Act (which I and many others believe is already unconstitutional) when combined with the IEEPA can be used to block certain information under the IEEPA. But again, the judge says that’s not how any of this works, especially because kids dancing on TikTok are not violating the Espionage Act.

Finally, the government proposes a novel reading of the Espionage Act…. Section 1702(b)(3) contains an exception to its exception, so to speak, and permits the regulation of informational materials, ?with respect to . . .acts . . . prohibited by chapter 37 of Title 18.? That Title authorizes life imprisonment or the death penalty for those who share U.S. defense secrets (especially classified government materials) with foreign adversaries…. But it is not plausible that the films, photos, art, or even personal information U.S. users share on TikTok fall within the plain meaning of the Espionage Act.

At the end of the order, the Court also addresses the national security question while looking at the “balance of equities” in determining whether or not an injunction against the ban was appropriate. And it notes that, despite the DOJ presenting evidence in sealed filings, it wasn’t enough to substantiate the claims that TikTok is a national security threat.

The government argues that a preliminary injunction would displace and frustrate the President?s decision on how to best address a national security threat?an area where the courts typically defer to the President?s judgment…. The Court must, of course, give deference to the Executive Branch?s ?evaluation of the facts? and the ?sensitive and weighty interests of national security and foreign affairs,? Holder v. Humanitarian Law Project, 561 U.S. 1, 33?34 (2010), including ?the timing of those . . . decisions.? Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 74 n.28 (D.D.C. 2002). Here, the government has provided ample evidence that China presents a significant national security threat, although the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions are the only effective way to address that threat, remains less substantial.

As for why the court only granted the injunction for last night’s ban, and not the November 12th more complete ban, the court basically says “we have time to deal with that one later,” but presents no suggestion that it would allow that ban to move forward either.

… the only truly imminent and immediate harm that Plaintiffs will suffer absent an injunction relates to paragraph 1 of the Commerce Identification. The Court therefore agrees with the government that injunctive relief should be limited to the prohibitions contained in paragraph 1, and that the other paragraphs of the Commerce Identification should appropriately be the subject of separate proceedings, which can be briefed and decided (potentially through cross-motions for summary judgment, and on a full administrative record) prior to those restrictions? effective date of November 12.

So, the WeChat ban gets blocked on 1st Amendment grounds, and the TikTok ban gets blocked because the IEEPA doesn’t let the President do what he wants to do, and all of this is just performative nonsense anyway, wasting two separate courtrooms’ time, not to mention significant concerns among many different companies which would have had to deal with the fallout of a ban. All because Trump is mad at kids on TikTok who don’t like him.

Still, it does seem notable that even under seal that government couldn’t present any real evidence to the court of the threat of TikTok being owned by a Chinese firm. As if we didn’t already have enough evidence about the fact that this entire debacle was a made up culture war, rather than a serious concern. It remains incredible to me that otherwise serious people jumped on board with Trump’s decision to ban these apps.

Filed Under: china, doj, donald trump, executive order, ieepa, injunction, national security
Companies: bytedance, tiktok

The TikTok 'Deal' Was A Grift From The Start: Accomplishes None Of The Stated Goals; Just Helps Trump & Friends

from the a-joke dept

A week ago, we explained that the announced “deal” between Oracle and TikTok was a complete joke and what appeared to be a grift to let Trump claim he had done something, while really just handing a big contract to one of his biggest supporters. That was based on the preliminary details. As more details came out, it became even clearer that the whole thing was a joke. TikTok’s investors actively recruited Oracle because they knew they needed to find a company that “Trump liked.”

Over the weekend, Trump officially gave the “okay” on the Oracle deal (which now also involves Walmart). And before we get into the details of the deal and why it’s a total grift, I’d like to just step back and highlight:

It is positively insane, Banana Republic, kleptocratic nonsense that any business deal should hinge on whether the President himself gives it a thumbs up or a thumbs down. Do not let all the insanity of this current administration hide this fact. If this had happened during the Obama administration, how crazy do you think Hannity/Carlson/Breitbart/etc. would be going right now about “big government” and claiming that the President is corrupt beyond belief? We should never, ever be in a situation where any President is giving the personal thumbs up or thumbs down to a business deal (and that’s leaving out the fact that he forced this business deal in the first place with a blatantly unconstitutional executive order.

Okay, now back to the actual deal. Oracle and Walmart will team up to create a “new” (very much in quotes) company called TikTok Global that will be headquartered in the US. Of course, this is a joke. TikTok already has US operations. Oracle and Walmart will end up with a small equity stake in this “new” company (combined about 20%), but the Chinese company ByteDance will still own the majority of the company and will still control the TikTok algorithm. While there is some chatter about how the data will be hosted in the US, for the most part that was already true. Oracle says that it will review things to make sure that the data is secure, but remember, this is the same Oracle that collects a shit ton of data on internet users via Blue Kai, and then leaked it all. It’s also the same Oracle that works closely with US spy agencies and isn’t exactly known as being particularly good at security.

As the NY Times notes, this deal appears to accomplish literally nothing. As we said before, it was all performative, letting Trump claim he had “done something,” when the rationale for the deal (“national security”) was always bogus, and this is proved by the fact that nothing in the new setup changes whatever national security questions there were about the app before. So, rather than force ByteDance to “sell” the company to protect “US national security” as the NY Times rightly notes all that came out of this was:

A cloud computing contract for the Silicon Valley business software company Oracle, a merchandising deal for Walmart and a claim of victory for President Trump.

As former FCC chair Tom Wheeler tells the NY Times:

Vetting deals ?is normally a process that involves multiple thoughtful people coming to the issue from multiple different concerns,? said Tom Wheeler, a former Democratic chairman of the Federal Communications Commission. ?This appears as though what passes for process is what pleases one man: Donald J. Trump.?

Again, Banana Republic kleptocracy.

The NY Times also noted that Walmart either seemed to rush out its press release over the deal, or whoever wrote it had a heart attack in the process of composing it:

?This unique technology eliminates the risk of foreign governments spying on American users or trying to influence them with disinformation,? the company said. ?Ekejechb ecehggedkrrnikldebgtkjkddhfdenbhbkuk.?

And that’s not even getting into the whole issue of the mysterious 5billioneducationfund.Withtheannouncement,OracleandWalmartsaidthenewcompanywould“pay5 billion education fund. With the announcement, Oracle and Walmart said the new company would “pay 5billioneducationfund.Withtheannouncement,OracleandWalmartsaidthenewcompanywould“pay5 billion in new taxes to the Treasury,” and then separately that it would “develop an educational curriculum driven by artificial intelligence to teach children basic reading, history and other subjects.” Those two points got conflated to suggest that it was putting $5 billion into that project — which sounded suspiciously like the finder’s fee Trump demanded when first talking about forcing TikTok to be sold.

This got even more insane when Trump declared that he wanted the $5 billion to be used for his new 1776 history project, which is his new fascistic indoctrination education program, which Trump and his idiot followers insist is necessary because they falsely believe that kids are being indoctrinated to hate America (they’re not — they’re just finally being taught, at least a little bit, that slavery is a key part of American history).

And the story got even more crazy when, after Trump talked about all of this, ByteDance came out with a giant shrug, saying it was totally unaware of any $5 billion education fund and appeared to have no interest in actually doing that.

It seems that most of the confusion was — as per usual — on the part of our not very intelligent President, who couldn’t comprehend that the small education fund was different than the $5 billion, which is merely just estimate future tax revenues to the Treasury that, given the tax breaks this same President has helped set up, will probably never actually materialize.

It’s like a clusterfuck of stupidity, corruption and kleptocracy. It’s America in 2020.

Filed Under: banana republic, china, donald trump, grift, ieepa, kleptocracy, larry ellison, nonsense
Companies: bytedance, oracle, tiktok, walmart

Details Of Unconstitutional WeChat/TikTok Ban Actually Would Make Users Of Those Apps Less Secure, Not More

from the what-the-fuck-is-this? dept

This morning the Commerce Department released the details of how the WeChat and TikTok bans will work. It’s possible that the ban on TikTok will get lifted if Treasury Secretary Mnuchin can convince enough people in the administration to buy into the grifty Oracle non-sale, but the WeChat ban is happening no matter what.

The details reinforce two key points:

1. This is way unconstitutional and should be offensive to any 1st Amendment/free speech supporter.
2. The excuses about national security are utter and total garbage, because this would actually make users of those apps significantly less secure.

So, great. We have some applications bans, premised on national security, that are unconstitutional piles of garbage that make people less secure, and the only possible path out is through a grifty deal, pushed deliberately to a large donor to the President, who has said multiple times he’s hoping for a kickback on the deal. We’re witnessing an astounding bit of corruption right here.

Here’s how the “ban” will work. First up, both apps get banned from all US app stores. The following is listed as “prohibited.”

Any provision of service to distribute or maintain the WeChat or TikTok mobile applications, constituent code, or application updates through an online mobile application store in the U.S.

That’s basically saying: “Apple and Google can no longer put those apps in their app stores.” There are 1st Amendment concerns here, in that the executive branch is telling software companies what code they can or cannot host. While the IEEPA law under which this order is being made is broad, this seems ripe for a huge 1st Amendment challenge. The President should not be able to simply ban code from app stores based on an unsubstantiated claim of “national security.”

Second, not only is this all based on unsubstantiated claims of national security, the very text proves how that’s bullshit. The fact that these app stores can no longer issue updates means that people who have the apps currently can continue using them, but if there’s a security update (say to patch a vulnerability) users can no longer patch those apps. If the goal of this ban is to “protect national security,” everything here is exactly the opposite of that. Users will still have the app, but are unable to protect themselves and can only keep using the app if they accept the obsolete and increasingly less secure version of it.

In other words: the whole “national security” claim is a total lie, because the way the ban is implemented gives Americans less security. That sure is one way to fight back against supposed Chinese surveillance through these apps. If it’s even true that China is spying on people via apps, they’re now in a “don’t throw me in the briar patch” situation — since the US government is forcing these apps to be less secure and to expose even more data to whoever has it.

Another part of the ban that raises significant 1st Amendment issues is that it prohbits:

Any utilization of the mobile application?s constituent code, functions, or services in the functioning of software or services developed and/or accessible within the U.S.

Translating that: it means that no US developer can use WeChat or TikTok’s APIs or build software using any of their code. That’s deliberately interfereing with the speech of Americans. Leaving aside the issue of whether or not banning apps that allow for communications is a 1st Amendment issue. Leaving aside the issue of whether or not banning apps at all is a 1st Amendment issue. This goes even further: it says that US-based software developers cannot write the code they want. That’s a huge 1st Amendment issue.

I discussed this a few months ago but the Supreme Court has already said that code is speech in Brown v. Entertainment Merchants Association (the case about whether or not the government could regulate video games and require age warnings). And, while it’s not the Supreme Court, the 2nd Circuit has been even more direct about code being speech protected by the 1st Amendment in the the Universal v. Corley case (about whether or not you could publish code that breaks DRM):

Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in “code,” i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone [*446] chose to write a novel entirely in computer object code by using strings of 1’s and 0’s for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English. The “object code” version would be incomprehensible to readers outside the programming community (and tedious to read even for most within the community), but it would be no more incomprehensible than a work written in Sanskrit for those unversed in that language. The undisputed evidence reveals that even pure object code can be, and often is, read and understood by experienced programmers. And source code (in any of its various levels of complexity) can be read by many more. Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language.

Later in that ruling:

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer. A recipe is no less “speech” because it calls for the use of an oven, and a musical score is no less “speech” because it specifies performance on an electric guitar. Arguably distinguishing computer programs from conventional language instructions is the fact that programs are executable on a computer. But the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions “speech” for purposes of the First Amendment.

Based on all of that, it is difficult to see how this broad ban can possibly stand up to 1st Amendment scrutiny on multiple levels. The banning of US developers coding using these companies APIs is a 1st Amendment violation. The ban on US companies hosting their code is a 1st Amendment violation. The ban on apps used for speech is likely a 1st Amendment violation (on par with breaking up printing presses). So, these bans appear to violate the 1st Amendment in multiple different ways.

And for what? The claim is “to protect national security.” We already knew that was bogus, and all of the info anyone can get from TikTok is already widely available for purchase. But now with the details coming out, in which it would make the data of US users of these services even less secure by banning updates, we have even more evidence that the national security claims are joke.

And thus, the bans are likely unconstitutional on multiple different grounds, have no national security purpose based on multiple different problems with the deal, and don’t seem to do anything other than potentially put a lucrative business deal in the pocket of a top Trump supporter. How is there anyone out there who thinks this is a reasonable thing?

Filed Under: 1st amendment, apis, bans, china, code, commerce department, donald trump, executive order, ieepa, national security, security, updates
Companies: apple, bytedance, google, oracle, tencent, tiktok, wechat

Trump Issues Ridiculous Executive Orders Banning TikTok And WeChat

from the that's-not-how-any-of-this-works dept

While he had said he would do it last weekend, and then said he’d wait until September 15th (but that he wanted a finder’s fee if TikTok was sold to Microsoft), last night the Trump White House issued two executive orders regarding apps from Chinese companies. The first one claims it’s banning TikTok and the second one says it’s banning WeChat (which isn’t even that popular in the US, though it is hugely popular in China). He separately sent a letter to Congress about the TikTok ban.

As many people expected, Trump is trying to use the IEEPA, the same (already questionable) authority he used to put tariffs on a bunch of products from China at the beginning of his nonsense tradewar. This is only supposed to be used in cases of unusual or extraordinary threats — and let’s be totally blunt: TikTok is not an unusual or extraordinary threat to anything beyond President Trump’s massive ego.

Of course, among the many problems with this, the IEEPA includes exceptions and a big one is that it does not apply to “any information or informational materials.” And I’d argue (and I imagine TikTok’s lawyers will argue) that means he can’t ban apps via an executive order under the IEEPA. But, of course, that will have to be fought out in court (and might become moot if ByteDance finalizes its sale to an American company).

Still, this is all nonsense:

I, DONALD J. TRUMP, President of the United States of America, find that additional steps must be taken to deal with the national emergency with respect to the information and communications technology and services supply chain declared in Executive Order 13873 of May 15, 2019 (Securing the Information and Communications Technology and Services Supply Chain). Specifically, the spread in the United States of mobile applications developed and owned by companies in the People?s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States. At this time, action must be taken to address the threat posed by one mobile application in particular, TikTok.

TikTok, a video-sharing mobile application owned by the Chinese company ByteDance Ltd., has reportedly been downloaded over 175 million times in the United States and over one billion times globally. TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans? personal and proprietary information ? potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.

Again, tons of apps suck up this same information — and most of our devices are built in China. The idea that TikTok is being used for “blackmail” or “corporate espionage” is beyond ludicrous. And, yeah, fine, federal employees perhaps shouldn’t have an app like TikTok on their phone, but just tell federal employees not to use it. Don’t ban it from the US.

And then there’s this:

TikTok also reportedly censors content that the Chinese Communist Party deems politically sensitive, such as content concerning protests in Hong Kong and China?s treatment of Uyghurs and other Muslim minorities. This mobile application may also be used for disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.

So… because TikTok moderates some content, the US will censor all the content? How does that make any sense at all?

In terms of what the actual order does, it bars any US person or company from conducting any transaction with TikTok’s parent company ByteDance, or any subsidiary. That would likely mean that neither Apple nor Google could carry the app in their mobile app stores, which would effectively bar it from the US (and potentially large parts of the rest of the world, as well).

The WeChat order is effectively the same, barring transactions with WeChat’s parent company Tencent Holdings “or any subsidiary of that entity.” Of course, that raised a bunch of alarm bells among gamers. Tencent owns or has invested in basically every gaming company out there, and fully owns Riot Games, makers of League of Legends. It also holds a 40% stake in Epic Games.

Honestly, it sounds like, in typical Trumpland fashion, no one in the White House recognized this. So after people started to freak out, they clarified that they didn’t mean to include the gaming companies:

Video game companies owned by Tencent will NOT be affected by this executive order!

White House official confirmed to the LA Times that the EO only blocks transactions related to WeChat

So Riot Games (League of Legends), Epic Games (Fortnite), et al are safe

(pending updates)

— Sam Dean ? (@SamAugustDean) August 7, 2020

Of course… that could change. And who knows? A plain reading of the order certainly should bar League of Legends as well. And, of course, part of this demonstrates the absolute ridiculousness of these “bans” in the first place: lots of apps (and even more devices and equipment) come from China. Doing a blanket ban is idiotic and short-sighted. Not only will it not work, not only will it deprive people of useful technology, but it justifies the Chinese approach of splintering and fragmenting the internet and censoring foreign companies. It’s an extremely dangerous game the President is playing here, with a poorly-aimed sledge hammer.

And that doesn’t get into the fact that just banning WeChat alone will be devastating for tons of American citizens and residents with family in China. While WeChat may not be particularly popular within the US, its popularity in China means that many relatives in the US rely on WeChat to communicate with family. Cutting them off is, again, embracing the Chinese Great Firewall approach.

Again, I don’t believe that the President actually has this authority, even under his already extremely broad interpretation of the IEEPA. That means there will almost certainly be multiple lawsuits over all this, and (I’m guessing) a request for a temporary restraining order to block those orders from going into effect. But still, if on Wednesday night the Trump White House made it clear it wanted to splinter the internet, last night it started to carry out that goal in practice.

Filed Under: 1st amendment, china, donald trump, executive order, free speech, ieepa, protectionism
Companies: bytedance, tencent, tiktok, wechat