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?

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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


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  • identicon
    Rekrul, 18 Sep 2020 @ 10:13am

    The important thing is that it makes Trumpelthinskin feel better. His feefees got hurt by all the mean TikTok users!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Sep 2020 @ 11:10am

    But china, and National Security, and the holy Free Market...

    At this point I suspect that the only people honestly in favor of Trump's little tantrum here are either ignorant of what it actually involves and means, or those with a financial stake in it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2020 @ 11:45am

    Just use an.offshore vpn to get around the resteictions

    probblem solved

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2020 @ 12:34pm

    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

    What other countries will be affected, as it says supply from a US store, and not supply to US users?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2020 @ 2:02pm

      Re:

      Honestly, the major app stores are Apple, Amazon, Google, and probably least Cydia, which is the Jailbreak app store for Apple.
      I'm hoping this actually will open up more app stores, both in Android and iOS, and force them to legitimize them. Perhaps Epic, Steam, Amazon, et al can create their own App store on both platforms and actually treat phones as computers from now on. Seriously, what's the difference besides an ARM processor and the shape of the device.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2020 @ 4:30pm

      Re:

      Using a VPN to byoass any geofiltrring to.be able to download orbupdate tiktok or wechat dies not bteai any laws 8n the United states.

      This is why i would start buying stock 8n VPN companies. I think they ate about to get w lot more business

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 21 Sep 2020 @ 8:44am

      Re:

      If someone lives close enough to the Canadian border to get wifi from Canada, would they be able to download WeChat or TikTok?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2020 @ 2:09pm

    So does this mean tik Tok can be updated in Europe or in other country's on Google play or on apple devices outside the USA.
    So people can still use tik Tok if they have it installed on their phones.
    Of course the new bill on section 230 will weaken security as it will penalise tech apps or services that use encryption to protect user data.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 18 Sep 2020 @ 3:17pm

      Re:

      So does this mean tik Tok can be updated in Europe or in other country's on Google play or on apple devices outside the USA.

      My guess is that they have to pull it from their app-stores regardless from what region you access them. Just compare the situation to Huawei-phones, you can't access Google play from the new line of phones that goes on sale now even if the phones are sold outside of the USA.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Sep 2020 @ 9:21pm

        Re: Re:

        There is scuttkebutt that irump is rw elected California, Oregon and Washington might secede and firm new country

        If that wwre to hapoen the play store woukd no longer be in the united states and mo.longer have to comply wirh USA laes and woukd be abke to allow doenloads of tiktok and WeChat to anyone incmyding those in the remaining 47 United States

        US law would have no jurisdiction in the new country.

        reply to this | link to this | view in chronology ]

      • icon
        Valis (profile), 19 Sep 2020 @ 8:53am

        Re: Re:

        Huawei phones are extremely popular here in South Africa. The switch from Google play to AppGallery has actually boosted sales of Huawei phones here!

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Sep 2020 @ 1:17am

        Re: Re:

        Not sure where you got that from. I'm on a new Huawei phone in the Uk and can access the Play store just fine.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Sep 2020 @ 4:40am

          Re: Re: Re:

          Maybe becuase you are not in the USA

          If you ever visit the USA, just set up a VPN on your home computer in the UK, if your broadband provider allows severs.

          This will make it look to the Play Store like you are in Britain, and Google will never be the wiser,

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2020 @ 4:44am

    TikTok will be 100% secure in the US.

    Because once Oracle and the terminally uncool Larry Ellison own it either it will cost $2 per post plus a $50/month subscription for the basic package with 420p video/ $75/month if you want 1080p PLUS Oracle will start adding 'cringey' memes etc. everywhere, driving people away.

    reply to this | link to this | view in chronology ]


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