Many Of The States Endlessly Freaking Out About TikTok Still Have State Websites That Funnel Sensitive Data To TikTok

Privacy

from the endless-moral-panic dept

By now we’ve noted several times how the folks most vocally calling for a nationwide TikTok ban are putting on a dumb performance designed to distract you from our lack of competent internet privacy laws and our complete unwillingness to regulate the sleazy data broker space.

As in, banning TikTok doesn’t actually fix much because the real problem goes much, much deeper than one app. There’s an absolute ocean of international telecoms, app makers, services, and others collecting torrents of sensitive health, location, and browsing data, then selling access to that feebly “anonymized” (a pointless term) data to a parade of sleazy and completely unaccountable data brokers.

That data, in turn, is available for US lawmakers looking to dodge warrants, or international intelligence agencies keen on spying on or manipulating Americans. A TikTok ban doesn’t actually fix much of anything because the broader ecosystem is leaky and rotten, overseen by regulators industry has spent decades defunding and lobotomizing in an endless quest for fatter revenues.

Interestingly enough, many of the same state politicians that have suffered absolute embolisms over supposed TikTok privacy issues, have state government websites that continue to funnel data to TikTok three years into this seemingly endless moral panic.

Take Missouri, home of insurrectionist sprinter Josh Hawley, who has attempted to ban TikTok in the pretense he cares about consumer privacy. It has a COVID site with numerous trackers continually providing TikTok with browsing, and potentially, visitor health data:

The Blacklight site inspection shows that covidvaccine.mo.gov, Missouri’s official COVID website that helps people locate vaccine and testing locations and find important health information, has embedded third party tracking cookies run by TikTok. The inspection reveals that TikTok has three cookies on the site, all related to personalizing users’ advertisements on the TikTok app. These cookies do not expire for over a year, meaning that TikTok can identify returning visitors. This data also concerns potentially sensitive health-related information.

A broader analysis of what data is being shared can be found here. Missouri’s certainly not alone; numerous states employ web developers using off-the-shelf design services that integrate this kind of third-party tracking by default.

Last March, the Wall Street Journal published a review of more than 3,500 companies, organizations, and government entities that found that tracking pixels from TikTok’s parent company ByteDance were present in 30 U.S. state-sponsored government websites across 27 states. Most of these states, the same ones that have spent 3 years freaking out about TikTok, were oblivious to the tracking.

This is not remotely unique to TikTok. With no privacy law for the internet era, and a general refusal to regulate the data broker and broader adtech space (lest U.S. companies make slightly less money and the U.S. government be forced to obtain warrants), we’ve created an information exchange ecosystem that sees little meaningful oversight or accountability.

It’s why we can’t go a week without some major scandal showcasing how companies over-collect data, which is inevitably then weaponized in new and creative ways against the public. And as a surging U.S. authoritarian movement increasingly wages an ugly ideological war in the Post-Roe era, it’s inevitable that these sort of violations only get bigger, dumber, more dangerous, and more elaborate.

Again, most of the folks (like Hawley) making the most noise about TikTok privacy issues either are too dumb to realize that TikTok is just one symptom of a much broader problem, or they’re actively misleading their constituents. Either covertly on behalf of competitors like Facebook, or to help seed xenophobia-fueled outrage among the base they can they pretend to be “fixing.”

The TikTok moral panic provides a wonderful distraction from our ongoing failure to pass even a baseline competent federal internet privacy law. And a great distraction from the fact we’ve built a massive, largely unaccountable data hoovering and monetization apparatus with paper mache guard rails.

Filed Under: abortion, josh hawley, location data, missouri, privacy, propaganda, security, social media, tiktok ban, tiktok tracker
Companies: tiktok

Now TikTok Sues To Stop Montana’s TikTok Ban

Legal Issues

from the did-they-ban-learning-how-the-constitution-works-in-montana? dept

To recap: due to unsubstantiated fear-mongering about TikTok, the lack of a real federal privacy law, and a weird obsession with China, Montana passed a blatantly unconstitutional law banning TikTok in the state. Last week, governor Greg Gianforte signed the bill into law and we predicted his doing so would cost Montana taxpayers a ton of money for the lawsuits they would soon have to deal with. The same day that the law was signed, a group of TikTok users sued the state.

And, now, this week, TikTok itself has also sued. The complaint is pretty clear and an easy read. It lays out the basics:

The State has enacted these extraordinary and unprecedented measures based on nothing more than unfounded speculation. Specifically, the State claims that the government of the People’s Republic of China (“China”) could access data about TikTok users, and that TikTok exposes minors to harmful online content. Yet the State cites nothing to support these allegations, and the State’s bare speculation ignores the reality that Plaintiff has not shared, and would not share, U.S. user data with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users, including by storing all U.S. user data by default in the United States and by erecting safeguards to protect U.S. user data. TikTok has also implemented safeguards to foster a safe environment for all users, including teens.

Ignoring these facts and the federal statutory framework already in place to address any purported concerns about foreign government access to TikTok user data, the State has mandated a complete and total ban of TikTok in Montana. It has done so despite the availability of more targeted measures to address its purported concerns. In less than eight months, no resident of, visitor to, or worker passing through Montana will be able to download TikTok on his or her phone or mobile device, post any videos to TikTok for others to see, or view any content on the platform.

Acknowledging “legal concerns” about the TikTok Ban, the Montana Governor suggested changes to the legislation after it had already been passed by the Montana Legislature. Those changes would have shifted the Ban’s focus from TikTok specifically (and the content on the TikTok platform) to social media applications connected to foreign entities more generally. But the Legislature did not consider the Governor’s suggested changes—which were legally problematic in their own right—and yet the Governor signed the TikTok Ban into law anyway. This unprecedented and extreme step of banning a major platform for First Amendment speech, based on unfounded speculation about potential foreign government access to user data and the content of the speech, is flatly inconsistent with the Constitution

It then lays out all the many ways in which the law is bullshit, which reads like a much better written, and more detailed, version of the list I put together when the bill was first passed.

The TikTok Ban is unlawful and should be enjoined for multiple, independent reasons. Specifically:

a. First Amendment. The TikTok Ban violates Plaintiff’s First Amendment rights. Through TikTok, Plaintiff exercises its constitutionally protected editorial judgment on whether, and how, to host, disseminate, and promote third-party speech created by others, and also shares its own content with users in Montana about a variety of issues and current events. The TikTok Ban, however, effects a prior restraint on the speech of Plaintiff and other TikTok users, unconstitutionally shutting down the forum for speech for all speakers on the app and singling these speakers out for disfavored treatment with the content-based rationale that videos on TikTok are harmful to minors.

b. Federal Preemption. The TikTok Ban is preempted by federal law because it intrudes upon matters of exclusive federal concern. The TikTok Ban is based on the State’s purported concern about the security of U.S. user data vis-à-vis the Chinese government. But foreign affairs and national security are matters over which the U.S. Constitution vests exclusive authority in the federal government, not the States. Indeed, Congress has created a specific federal regulatory process by which the purported national security concerns that have animated this legislation may be addressed. The TikTok Ban would necessarily disrupt and interfere with that process, which is currently underway.

c. Commerce Clause. The TikTok Ban violates the Commerce Clause of the U.S. Constitution, which limits the authority of States to enact legislation that unduly burdens interstate and foreign commerce. By banning Plaintiff from operating TikTok within Montana, the TikTok Ban imposes a state-specific ban on a communication platform that is national (indeed, international) in scope. The Ban interferes with TikTok’s operation and availability to users in other States and it risks disrupting the flow of travel and commerce between States.

d. Bill of Attainder. The TikTok Ban is an unconstitutional bill of attainder. Rather than regulate social media companies more generally, the Ban banishes TikTok, and just TikTok, from the State for purely punitive reasons, as evidenced by the State’s decision to single out Plaintiff for harsh penalties based on speculative concerns about TikTok’s data security and content moderation practices.

I’m also wondering if more lawsuits are coming, including from Google and Apple, given that the law is also written to hit them with fines if their mobile app stores make TikTok available in the state (after the law goes into effect in 2024).

Either way, this law is bad, and clearly unconstitutional, but Gianforte and the Montana legislature don’t care about rights. They care about culture wars and moral panics. And this is what they get.

Filed Under: 1st amendment, bill of attainder, commerce clause, federal preemption, free speech, greg gianforte, lawsuit, montana
Companies: tiktok

TikTok Users Waste No Time: Sue Montana Same Day TikTok Ban Was Signed

Free Speech

from the the-tiktok-dancing-legal-explainers-are-gonna-be-awesome dept

We noted yesterday that Montana’s embarrassment of a governor, Greg Gianforte, was about to cost the state a ridiculous amount of taxpayer money having to defend his obviously unconstitutional ban on TikTok. What I hadn’t realized was that by the time I’d published that article, the first such lawsuit had already been filed.

Five TikTok users have sued the state of Montana, represented by Austin Knudsen, the state’s Attorney General. And the complaint opens by using Knudsen’s own words against him:

Plaintiffs, creators and viewers of content on TikTok, bring this lawsuit to challenge An Act Banning TikTok in Montana (SB 419). The Act attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress. By shuttering an entire forum for communication that Defendant Montana Attorney General Austin Knudsen himself admitted is one of “the best way[s] … to get your free speech out there,” the law creates a prior restraint on expression that violates the First Amendment, depriving Montanans of access to a forum that for many is a “principal source[] for knowing current events” and “otherwise exploring the vast realms of human thought and knowledge.” Packingham v. North Carolina, 582 U.S. 98, 99 (2017).

The opening lays out the basis of the lawsuit pretty plainly and clearly:

Montana’s claimed interests in SB 419 are not legitimate and do not support a blanket ban on TikTok. Montana has no authority to enact laws advancing what it believes should be the United States’ foreign policy or its national security interests, nor may Montana ban an entire forum for communication based on its perceptions that some speech shared through that forum, though protected by the First Amendment, is dangerous. Montana can no more ban its residents from viewing or posting to TikTok than it could ban the Wall Street Journal because of who owns it or the ideas it publishes. Even if Montana could regulate any of the speech that users share through TikTok, SB 419 wields a sledgehammer when the First Amendment requires a scalpel.

SB 419 is unconstitutional and preempted by federal law. The Act violates the First Amendment and the Due Process Clause of the Fourteenth Amendment, as well as the Foreign Affairs and Commerce Clauses of the United States Constitution. The Act is also preempted by the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701 et seq., and by Section 721 of the Defense Production Act (Section 721), 50 U.S.C. § 4565, which authorize the President and the Committee on Foreign Investment in the United States (CFIUS)— not individual states—to investigate and if necessary mitigate national security risks arising from foreign economic actors.

You can read the whole complaint, which goes into a lot more detail on what’s stated in the two paragraphs above, but I’ll just highlight one more section, which points out that former President Trump tried and failed to ban TikTok already, so it’s unclear why Montana officials believe that their law has any chance of being found constitutional.

Federal judges have three times enjoined attempts to ban TikTok. See TikTok Inc. v. Trump, 490 F. Supp. 3d 73, 83 (D.D.C. 2020) (holding that former President Trump lacked authority to issue an executive order to “regulate or prohibit, directly or indirectly” any exchange of “informational materials” or “personal communication[s]” transmitted to the United States through TikTok) (citation & internal quotation marks omitted); Marland v. Trump, 498 F. Supp. 3d 624, 642 (E.D. Pa. 2020) (enjoining same executive order; rejecting government’s “descriptions of the national security threat posed by the TikTok app” as “hypothetical”); TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 112 (D.D.C. 2020) (enjoining the same executive order)

Montana is going to lose this lawsuit. And, in a just world, it would permanently embarrass the governor and the legislature, but in these culture warring days, it will probably just embolden them to produce even more nonsense.

Filed Under: 1st amendment, alice held, austin knudsen, carly add goddard, dale stout, free speech, greg gianforte, heather dirocco, montana, samantha alario, tiktok ban
Companies: tiktok

Congrats, People Of Montana: Your Governor Is About To Blow A Ton Of Taxpayer Money On An Unconstitutional TikTok Ban

Free Speech

from the culture-wars-are-the-opposite-of-leadership dept

“Constitutional originalists” and “fiscally conservative” Republican governors sure are having a moment these days throwing away millions upon millions of taxpayer dollars on totally unconstitutional laws that take away people’s 1st Amendment rights. It’s quite uncanny. Florida’s Ron DeSantis seems to be taking the lead here, where it seems like every other day or so he’s losing cases in court, and then turning around and passing even more ridiculously unconstitutional bills.

I recognize that Greg Abbott in Texas is trying desperately to keep up with DeSantis, but that doesn’t mean other hypocritical governors can’t play along as well. Enter Montana governor Greg Gianforte, a former tech exec, who’s probably most famous for throwing a journalist to the ground after disliking the journalist’s questions. The people of Montana still elected him after that, first to Congress and then as governor, suggesting they actually like electing people who stomp on free speech rights.

But now it’s likely to cost them a ton of taxpayer money.

That’s because Gianforte has now signed into law the blatantly, ridiculously, hilariously, obviously unconstitutional ban on TikTok. The bill was literally called “Ban tik-tok in Montana.” Anyway, we wrote about all the ways in which it was unconstitutional last month. And, originally, Gianforte sent it back to the Montana legislature with demands that they change it in a manner that would have (inadvertently, I think?) banned all social media for people in Montana.

Of course, even with his request back to the legislature, Gianforte demonstrated his supreme incompetence, as the “amendatory veto” was apparently sent back to the legislature too late for them to actually do anything about it.

So, instead, he just went ahead this week and signed the blatantly unconstitutional bill into law. The law (in theory) would go into effect in January of next year, and fine TikTok for existing in the state, as well as Google and Apple if they let people in Montana download the app to their phones.

In signing it he laughably claimed that he’s “protecting Montanans’ personal and private data from the Chinese Communist Party.”

Except, of course, he’s done no such thing. He’s trampled on the 1st Amendment rights of Montanans and put their data at much greater risk. That’s because the law will require geographic tracking by TikTok, Apple, and Google to a much more significant degree than exists currently, just to figure out who is in Montana and who is not. So, by setting up this ban, he’s forcing these companies to collect more data than they otherwise would, putting that data at much greater risk.

On top of that, if China wants that data, they can just buy it from American data brokers, because we have basically nothing in place to stop them. Banning TikTok does literally nothing to help here, other than rile up some brainwashed boomers who think that China is spying on Americans through an app kids use to share dance moves.

The ACLU has already put out a statement calling out what a blatant violation of the public’s rights this law is.

“With this ban, Governor Gianforte and the Montana legislature have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment,” said Keegan Medrano, policy director at the ACLU of Montana. “We will never trade our First Amendment rights for cheap political points.”

This law stands basically no chance of surviving a run through the courts, and all it’s going to do is suck up a ton of Montanans’ taxpayer dollars, wasted on lawyers who are going to lose.

This isn’t protecting anyone’s privacy. It’s stomping on their rights, all so Gianforte can fight a fake culture war. It seems to be all the GOP has these days. Grievances, nonsense, and culture wars. How pathetic.

Filed Under: 1st amendment, greg gianforte, montana, taxpayer money, tiktok ban
Companies: tiktok

Montana’s Governor’s Changes To TikTok Ban Bill Would Ban All Social Media Entirely

Failures

from the legislation-is-hard,-culture-wars-are-easy dept

We’ve already talked about Montana’s extraordinarily unconstitutional “ban TikTok” bill that raises a huge number of constitutional issues. Lots of individuals and organizations pointed this out to governor Greg Gianforte (who came to office as a former tech exec of an internet company, and was supposed to be someone who understand the internet).

Gianforte has now sent back to the legislature what’s known as an “amendatory veto” that basically is alternative draft language that he would approve if the legislature amends the original bill. In theory, the likely reasoning behind the alternative language was the recognition that the original bill, which called out TikTok by name (including spelling it wrong in the title) would be immediately deemed unconstitutional as a bill of attainder targeting a single company for punishment.

In theory… that’s an improvement. In reality, as pointed out by 1st Amendment lawyer Ari Cohn, Gianforte’s draft language would accidentally ban all social media in the state of Montana, because of bad drafting. As Ari points out, the new draft targets any “social media application” that allows for “the collection of personal information or data” and allows for “the personal information or data to be provided to a foreign adversary or a person or entity located within a country designated as a foreign adversary.”

Now, some might think that sounds reasonable, but the details here matter. And the details reveal that EVERY social media network collects such information and provides it to people located in countries designated as a foreign adversary. And that’s because “personal information” is a very broad term, as is “provided.”

“Surely,” you might think, “that just covers the data platforms amass by monitoring and tracking us, right?”

Perhaps not. The bill doesn’t define the term, so who knows what it means in their heads. But we have an idea of what it means out in the real (online) world, by way of the regulations implementing the Children’s Online Privacy Protection Act (COPPA). Those regulations include in the definition of “personal information” things like:

• First and last name
• Online contact information
• A screen or user name where it functions in the same manner as online contact information

In other words, the types of information that accompany virtually every piece of content posted on social media. If a platform allows that kind of information to be provided to any foreign adversary or a person or entity located within a foreign adversary, it is banned from Montana.

Do you know who might be persons located within a country designated as a foreign adversary? Users. Users who are provided the kinds of “personal information” that are inherent in the very concept of social media.

So, effectively, the bill would ban any social media company that allows any user in China, Russia, Iran, or Cuba to see content from a Montana user (and this is a generous reading, nothing in the bill seems to require that the data/information shared be from a Montana resident). On top of it, each time a user from one of those countries accesses content, platforms would be subject to a $10,000 fine.

Do you know which platforms allow people in those countries to access content posted in the United States? All of them.

Congratulations, Montana Governor Greg Gianforte. You just managed to accidentally ban all social media for Montanans. Good work.

Drafting legislation is hard. But, these kinds of mistakes are avoidable if you’re actually willing to talk to experts first — something that Montana law makers appear to have avoided entirely throughout this process.

Filed Under: greg gianforte, montana, social media, tiktok ban
Companies: tiktok

The EU Designates 17 Sites As ‘Very Large Online Platforms’ Subject To DSA’s Most Stringent Rules

Policy

from the rodents-of-unusual-size dept

I’ve been criticizing the EU’s Digital Services Act (DSA) approach to internet regulations, because they’re doing this “wink, wink, nudge, nudge” bit in which they insist that the DSA is not regulating speech, but then they admit that the point of the DSA is to see less “bad” speech on the internet.

But, whether we like it or not, it’s here. And it’s going to have a pretty big impact. Part of the law is that, while it does impact online services of all sizes, there are some categories, based on size, that will lead to more stringent rules, with the most notable one being the “Very Large Online Platforms” or VLOPs. As one friend of mine has noted, it feels kinda like the “Rodents of Unusual Size” or ROUS’s from The Princess Bride.

Even though the DSA went into effect last year, there were still a bunch of things to clarify before it meant anything, and that included who would qualify as a VLOP. There had been some discussion about whether or not Twitter would even qualify (to which one policy person told me that the EU would rewrite the rules until Twitter absolutely qualified, because they were clearly targeting the company).

A bunch of platforms were required to hand over a bunch of info to the EU to make their final determination, and now the EU has declared 17 platforms from 13 different companies to be VLOPs, and yes, Twitter made the cut:

Very Large Online Platforms:

• Alibaba AliExpress
• Amazon Store
• Apple AppStore
• Booking.com
• Facebook
• Google Play
• Google Maps
• Google Shopping
• Instagram
• LinkedIn
• Pinterest
• Snapchat
• TikTok
• Twitter
• Wikipedia
• YouTube
• Zalando

I don’t think there are really any surprises here, though people outside of the EU may be less familiar with Zalando, a successful online retailer platform in the EU. Potentially Booking.com is a bit surprising? And, personally, I can’t think of anyone who uses Google Shopping, but I guess a bunch of people do.

The very different platforms on the list also make me wonder how some of these platforms are going to deal with the various rules. Google Maps’ content moderation decisions seem… to be in a different category from Wikipedia’s, which would be very, very different from a mobile app store.

Anyway, now that Twitter is on the list, we’ll have to see if Elon still is happy that he vocally endorsed the DSA approach for Twitter a year ago. We noted, at the time, that he’d likely come to regret this, as it seemed to go against a variety of the things he claimed to stand for. Of course, now that he may start to face regulatory burdens from the DSA (and they can be very burdensome), it will not be surprising to see him change his tune on the EU.

The other one that will be interesting to see is Wikipedia. As noted above, there are pretty big differences in many of these platforms, but Wikiepedia’s moderation model is not just different in style, it’s just entirely different as so much of it is done by volunteer editors. It seems like it’s going to be a compliance challenge for Wikipedia to have to set up an appeals board for some of its content choices, as the DSA will require.

The EU also designated Google and Bing as “Very Large Online Search Engines” which also now have some specific rules, but no on else made the cut. That’s not too surprising.

I still fear the way this is going to play out, though we’ll see in the long run. As our recent research indicated, other internet regulations have served to stifle speech and competition, and give more control to the “very large” online providers who have the ability to deal with the compliance costs. One hopes that the end result of the DSA is not the same, but it wouldn’t surprise me if that’s how it ended up.

Filed Under: content moderation, dsa, speech rules, very large online platforms, vlops
Companies: alibaba, amazon, apple, booking.com, facebook, google, instagram, linkedin, meta, pinterest, snapchat, tiktok, twitter, wikipedia, youtube, zalando

FCC Commissioner Brendan Carr Continues To Enjoy Oodles Of Free Press For Fear Mongering About TikTok

Overhype

from the unserious-people-saying-unserious-things dept

The great TikTok moral panic of 2023 shows no sign of slowing down.

FCC Commissioner Brendan Carr has spent the few years getting oodles of free press attention for hyperventilating about TikTok. It doesn’t matter that Carr doesn’t have regulatory authority over TikTok, or that his proposed ban wouldn’t actually fix the problems he claims it does, or that Carr (whose generally been a muppet for AT&T) has no credibility on consumer protection or privacy.

Press outlets keep citing him credibly. That includes the Guardian, the latest outlet to stenograph Carr’s calls for a TikTok ban unskeptically without any of this context. Carr last week appeared before the Australian Senate inquiry into foreign influence through social media, once again insisting that a TikTok ban was the only acceptable path forward: for those interested in meaningful privacy:

Carr, the most senior Republican member on the FCC, said only an outright ban of the app in the United States or removing all corporate ties to China would be acceptable.

“Ultimately, I think some sort of … legislation that imposes a ban or a genuine divestiture is the way forward right now,” he said.

Here’s the thing: we’ve noted countless times that banning TikTok doesn’t fix the actual problem: a poorly regulated, largely unaccountable data broker market that hoovers up every last shred of consumer behavior data (including daily movement patterns, sexual orientation data, or sensitive mental health data), then sells it to any idiot with a nickel. Including the Chinese government.

The primary supposed benefit of a TikTok ban would be to block the Chinese government from obtaining sensitive U.S. consumer data. Blocking TikTok, but doing nothing about the unregulated data broker market, means Chinese intelligence (or Russian intelligence, or Iranian intelligence, or the U.S. government) can simply buy most of this exact same data, unencumbered, from data brokers.

Carr opposes regulating data brokers. He also opposes the U.S. passing a meaningful privacy law. His hyperventilation about TikTok is largely just a distraction from the U.S.’ profound failure on privacy legislation and consumer protection. Carr and the Republican party have made it extremely clear they couldn’t care less about privacy violations in the U.S. telecom sector Carr actually regulates.

Carr’s repeated trips to the TikTok fainting couch are a giant, dumb performance designed to do several things.

One, to help portray Carr (a Trump appointee whose political ambitions are clear) as a serious steward of the public interest, despite absolutely no credibility on the subject. Two, to distract the press and public from our continued failures on real privacy legislation. And three, to help feed a healthy bucket of xenophobic chum to a Republican base often terrified of darker-skinned human beings.

There’s another goal to the TikTok hysteria: as Trump himself made very clear, many Republican and Democratic lawmakers simply don’t like that a Chinese company out-innovated U.S. companies. Repeated efforts by Facebook et all to build a better TikTok have failed. So Facebook has done what any dominant corporate giant would do: seed moral panics in DC and the press about its competitors..

The goal: use the pretense of national security and privacy to force ByteDance to sell TikTok and its growing advertising revenues to an American company, whether that’s Facebook, Oracle, or even Walmart.

None of this is to say that TikTok doesn’t present meaningful privacy risks.

But it is to say that TikTok’s sadly common privacy abuses are a symptom of our much broader, corrupt failure to regulate data over-collection or pass a meaningful privacy law. The myopic fixation on TikTok and TikTok only is a hyperbolic distraction from the need for broader, meaningful reform. The kind of meaningful reform unserious men like Carr have long vehemently opposed.

Filed Under: brendan carr, moral panic, national security, privacy, security
Companies: tiktok

Montana Passes Laughably Unconstitutional Law Banning TikTok

Legal Issues

from the spot-the-constitutional-problems dept

On Friday, Montana’s very silly legislature passed the first law in the nation banning Tiktok. The bill’s title is not subtle: SB 419: Ban tik-tok in Montana (they couldn’t even get the name right).

The way the bill works is that it prohibits mobile app stores from offering TikTok to Montana residents and also just flat out says “TikTok can’t operate here.”

Tiktok may not operate within the territorial jurisdiction of Montana

It then bans the ability to download TikTok, saying it violates the law if anyone provides:

the option to download the tiktok mobile application by a mobile application store

The wording of the bill makes you wonder if the people who drafted it learned how to create laws by watching TikTok videos, rather than in learning how to draft laws. It’s also just chock full of moral panic nonsense:

WHEREAS, TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities, including but not limited to throwing objects at moving automobiles, taking excessive amounts of medication, lighting a mirror on fire and then attempting to extinguish it using only one’s body parts, inducing unconsciousness through oxygen deprivation, cooking chicken in NyQuil, pouring hot wax on a user’s face, attempting to break an unsuspecting passerby’s skull by tripping him or her into landing face first into a hard surface, placing metal objects in electrical outlets, swerving cars at high rates of speed, smearing human feces on toddlers, licking doorknobs and toilet seats to place oneself at risk of contracting coronavirus, attempting to climb stacks of milkcrates, shooting passersby with air rifles, loosening lug nuts on vehicles, and stealing utilities from public places

This is literally a list of moral panicky nonsense based on often false reports about TikTok challenges (frequently spread by adults, not kids, or when done by kids set up as jokes to freak out parents). And while it claims TikTok “fails to remove” these, TikTok actually has a strong record of removing the few that do actually exist.

This bill is so ridiculously unconstitutional that everyone who voted for it should be kicked out of the legislature and sent back to remedial “Constitution 101.”

First off, it’s a clear bill of attainder, which is explicitly barred by the Constitution.

Second, it violates the 1st Amendment rights of TikTok, in that it’s no different than the government banning a magazine from printing in the state, or seizing their printing press.

Third, it violates the 1st Amendment rights of app store operators, who have the right to determine what they do and don’t distribute.

Fourth, it violates the 1st Amendment rights of users of TikTok who want to use the app to communicate with others.

Fifth, it violates the the Dormant Commerce Clause in regulating interstate commerce.

Montana’s Attorney General, Austin Knudsen (who is said to have written the bill), defended the bill in the NY Times, and in doing so hilariously only gave more ammunition to the bill’s (correct) critics.

Mr. Knudsen, a Republican, said his team had received scores of complaints from parents about TikTok content referring to drugs, suicide or pornography. As the state’s legislative session approached this year, his office began looking at the idea of fully banning the app.

In other words, Mr. Knudsen, who will now have to defend this law in court, just flat out admitted that he wrote this bill to shut down 1st Amendment protected communication. Talking about drugs, suicide, and pornography are all protected 1st Amendment activity, dude. Admitting that you’re silencing this app because you don’t like the content on it gives up the entire ball game.

Also, as Rianna Pfefferkorn notes in Wired, all this does is have the US mimic China, the very country we keep being told is the reason we need to ban TikTok, in order to not be influenced by it and become like it.

“It’s a maddening irony that American legislators’ idea for countering China is to act more like China, home of the Great Firewall that censors its citizens’ free access to the flow of information,” Stanford’s Pfefferkorn says. “Banning a popular social media app, especially on the basis of speculative concerns, is directly contrary to the vision of a free and open internet that the US has long promulgated abroad as part of our commitment to democracy.”

This law is going to get tossed out. This is literally Montana’s AG and legislature choosing to waste taxpayer money in pursuit of some moral panic.

Montana residents deserve elected leaders who don’t shit on the Constitution.

Filed Under: 1st amendment, austin knudsen, bill of attainder, free speech, montana, tiktok ban
Companies: tiktok

Arkansas Governor Signs Social Media Bill Into Law, Even As Bill’s Own Sponsor Appears Confused About Who It Covers

Legal Issues

from the backwards-lawmaking dept

What could possibly go wrong? Earlier this week we wrote about an Arkansas bill, SB396, which was modeled after Utah’s recent unconstitutional social media bill, and tries to ban kids from social media. Except, as we noted, it appeared to explicitly exempt pretty much all of social media, except for maybe Facebook and Twitter. The wording is so unclear, but also, oddly specific. For example, it says it exempts:

Social media company that allows a user to generate short video clips of dancing, voice overs, or other acts of entertainment in which the primary purpose is not educational or informative

Which, yes, seems strange. However, Governor Sarah Huckabee Sanders, who also recently signed into law a bill to end the process of age verifying workers in meat processing plants, is suddenly concerned about the welfare of children, and so happily signed this bill, claiming it will protect children.

Yes, now only meat packing plants can get away with exploiting kids for profit in Arkansas.

And, of course, all of the evidence suggests that this law will actually put many kids in much greater danger, as well as harm everyone’s privacy. Age gating sites will require intrusive age verification procedures, which create all sorts of security nightmares. Requiring parental permission will put kids who are estranged from their parents, or who engage in activities or beliefs at odds with their parents, at risk.

But, still, the bill is so poorly worded that even the sponsor of the bill, Senator Tyler Dees, is confused. Again, the bill appears to explicitly exempt social media that involves “short video clips of dancing” (which could likely exclude TikTok, Snapchat, Instagram, and YouTube in some form). But the sponsor claims it’s targeting those very sites.

“The purpose of this bill was to empower parents and protect kids from social media platforms, like Facebook, Instagram, TikTok and Snapchat,” Dees said in a statement. “We worked with stakeholders to ensure that email, text messaging, video streaming, and networking websites were not covered by the bill.”

Except it sure looks like you exempted most of those.

Either way, this bill is just as unconstitutional as the Utah bill. It’s privacy invasive, and it rips apart the right of children to access information, which has long been established by the Supreme Court.

Filed Under: arkansas, protect the children, sarah huckabee sanders, social media, social media ban, teenagers, tyler dees
Companies: facebook, instagram, meta, tiktok, youtube

Arkansas Legislature Passes Age Verification Bill That Conveniently Carves Out Basically Everyone EXCEPT Meta & Twitter

Policy

from the tiktok-is-free... dept

This is so bizarre. Last month, we highlighted the ridiculousness of Arkansas’ age verification for social media bill. These bills are showing up everywhere, from California to Utah and lots of other places as well. It’s bipartisan nonsense.

It’s pretty clear that these bills are unconstitutional: they seek to suppress the free speech rights of children, first of all, but also they create an untenable situations in which websites are forced to collect much more, and much more intrusive, data on everyone. I’ve seen some people say that it’s only collecting that data on children, but that’s wrong. Sites need to collect the data on everyone or how else do they know who is and who is not a child.

In other words, these bills, that are often presented as being “privacy” bills, are actually privacy nightmares.

Still, Arkansas’ bill went from bad to ridiculous last week as it passed out of the legislature and landed on Governor Sarah Huckabee Sanders desk, where she promised to sign it.

The supporters of the bill seem to believe complete and utter nonsense, and have no comprehension of the actual threats and risk of the internet:

Local parents Brett and Kara, who opted not to provide their last names, think the Social Media Safety Act is a great idea.

“They try to meet up with younger kids, and that’s one of the main problems for me,” said Brett.

“Kidnapping, pedophiles, luring kids out,” added Kara.

Again, this almost never happens. The risk of it happening to your kid is effectively nil.

But, the really hilarious part of the bill is that right before it passed, for reasons unexplained, the Arkansas legislators added in a bunch of exemptions, that basically means the bill seems to… only apply to Meta’s Facebook and Instagram. Yes, it appears that TikTok, YouTube, Twitch, LinkedIn and others are exempted. Oh yeah, also Truth Social, Parler, Gab and the like, who don’t qualify, since social media sites have to make $100 million in annual gross revenue to qualify.

The exclusions of other companies is so blatant as to be almost hilarious. First, the bill defines a “social media company” to be an online forum where people can “create a public profile,” “upload or create posts or content,” “view posts or content of other account holders” and “interact with other account holders.”

Okay, that should cover most… but then it immediately jumps into exemptions, noting that:

(B) “Social media company” does not include a:

(i) Media company that exclusively offers subscription content in which users follow or subscribe unilaterally and whose platforms’ primary purpose is not social interaction;

(ii) Social media company that allows a user to generate short video clips of dancing, voice overs, or other acts of entertainment in which the primary purpose is not educational or informative, does not meet the exclusion under subdivision (7)(B)(i) of this section;

(iii) Media company that exclusively offers interacting gaming, virtual gaming, or an online service, that allows the creation and uploading of content for the purpose of interacting gaming, entertainment, or associated entertainment, and the communication related to that content;

(iv) Company that:

(a) Offers cloud storage services, enterprise cybersecurity services, educational devices, or enterprise collaboration tools for kindergarten through grade twelve (K-12) schools; and

(b) Derives less than twenty-five percent (25%) of the company’s revenue from operating a social media platform, including games and advertising; or

(v) Company that provides career development 16 opportunities, including professional networking, job skills, learning 17 certifications, and job posting and application services;

Let’s go through these one by one. The first exemption is pretty clear. It’s a company that is serving up subscription content. That’s to exempt Netflix and Disney. At least they didn’t go with a theme park exemption a la Florida.

The second exemption is the funniest by far. First of all, it’s terribly drafted, because technically it reads that a “social media company does not include a social media company…” but more to the point, it seems explicitly drafted to exclude… TikTok? The site that everyone’s trying to ban and that is often held up as the problem? But, then the end of the sentence makes it confusing, because it then refers back to the subscription content in the clause above it.

But, honestly, deliberately highlighting that a site that “generates short video clips of dancing, voice overs, or other acts of entertainment” is basically “hey, this is TikTok.” So, it looks like TikTok isn’t banned, unless the drafting is so ridiculously bad that this is something of a double negative, and the intent of the language is that even though this is listed as an exemption, it’s the opposite of an exemption because it is paradoxically referencing the term above it? Honestly, it’s incomprehensible. But if it carves out TikTok, it seems likely that it might also carve out SnapChat here.

The third exemption seems to be explicitly carving out Twitch from the bill.

The fourth exemption is a bit tricky… but which many are arguing carves Google/YouTube out of the bill, because Google does offer all of the things in (iv)(a) and also derives less than 25% of its revenue from YouTube, its only real social media platform, which hits the qualification for (iv)(b).

The fifth exemption then carves out LinkedIn.

Bizarrely, after this, the bill separately defines “social media platform” (as opposed to social media “company”) even though the bill seems to use the two terms interchangeably elsewhere. And the definition of a social media platform has more carve outs, for messaging and email services, for streaming video services (in case the other Disney carveout wasn’t enough), for news and sports sites where it’s more broadcast than user-generated, and for shopping sites. They also carve out services that provide comments to websites, that provide cloud storage, shared document collaboration, and academic services.

Basically, one by one by one, the bill is all exclusions of more or less every single possible social media platform… except Facebook, Instagram and (I guess?) Twitter. Elon’s gonna love that.

Even the usual crew you’d think would be dumb enough to support this are concerned:

Yeah, Junior, they also carve out your Dad’s site too, so be happy about that.

Of course, the whole thing is a complete joke, from the concept, to the drafting, to the overall execution. But the fact that nearly half of the text of the bill is literally trying to carve out this or that social media platform would be funny if it wasn’t so stupid.

Filed Under: age verification, arkansas, carve outs, exemptions, sarah huckabee sanders
Companies: facebook, google, instagram, linkedin, meta, tiktok, twitter, youtube