T.L. 's Techdirt Comments

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• On the post: Israel Shows It Has Nothing To Fear From International Coverage Of Palestine Conflict By Kicking Al Jazeera Out Of The Country

  

  T.L. ( profile ), 07 May, 2024 @ 11:34am

  TikTok has now sued the government over its own "national security" legislation targeting foreign media, the Protecting Americans from Foreign Adversary Controlled Applications Act. There's interesting parallels between that and Israel's "national security" law, as both were developed to target platforms highlighting the realities of the war, and were actually passed around the same time (in the case of the PAFACA, the original version was passed not long after the Israel Al-Jazeera law was passed). In the case of the PAFACA, lawmakers were dumb enough to say the quite part out loud, and admit the law's support was based on the desire to censor pro-Palestinian/anti-war content, a flagrant act of viewpoint discrimination. Mitt Romney (in a symposium with Secretary of State Antony Blinken) and Mike Lawler (in a conference call with No Labels) admitted as much, giving TikTok ammo to strengthen their case, not to mention the fact that many of the lawmakers who supported the PAFACA also criticized the app for protected speech critical of the war, even suggesting a ban would be justified for that reason. This pretty much illustrates the U.S.'s targeting of TikTok (from Trump's failed EO to Montana's blocked ban law to the PAFACA) is solely political and not based on actual evidence of security, which would make the late Supreme Court Justice Hugo Black (who said in the Pentagon Papers that "security is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment") roll over in his grave. Some articles for basis... https://www.rollingstone.com/politics/politics-news/lawmakers-tiktok-ban-pro-palestinian-content-1235016101/ https://www.inquirer.com/columnists/attytood/tiktok-ban-protests-gaza-israel-houston-flooding-climate-change-20240507.html https://theintercept.com/2024/05/04/josh-gottheimer-mike-lawler-campus-protests/ https://truthout.org/articles/tiktok-exposed-youth-to-genocide-in-gaza-is-that-why-electeds-want-it-banned/

• On the post: Sony, Paramount Explore Merger As Streaming Sector Runs Completely Out Of Original Ideas

  

  T.L. ( profile ), 07 May, 2024 @ 07:28am

  The one problem with Apollo controlling CBS under the proposal is that the company already owns a majority of Cox Media Group, which owns 13 stations across the country (including WSB/Atlanta, WFTV/Orlando and WSOC/Charlotte). Apollo was previously in a deal with Standard Media (which is launching a regional sports network that will replace NBC Sports Chicago as the regional cable home of the White Sox, Bulls and Blackhawks) to acquire a share of Tegna (formerly the broadcasting unit of the Gannett Company), which actually owns stations in four of the markets where Cox owns stations (Atlanta, Seattle, Jacksonville and Charlotte), but that ran aground with the FCC last year because Apollo would still hold interests in the Cox and Tegna stations in those markets. (The same issue that caused the Tegna deal to collapse exists in Boston, where Cox owns Fox affiliate WFXT, and CBS owns WBZ-TV and independent station WSBK, and Pittsburgh, where Cox owns NBC affiliate WPXI, and CBS owns KDKA-TV and independent station WPKD; Cox and CBS each own stations in Atlanta and Seattle as well, though the CBS-owned stations there are independents, with Cox's KIRO and Gray Television-owned WANF being the CBS stations in those markets).

• On the post: The U.S. House Version Of KOSA: Still A Censorship Bill

  

  T.L. ( profile ), 06 May, 2024 @ 02:43pm

  Not the only bill based on censorship

  Honestly, lawmakers won't accept the Internet has much broader First Amendment protections, that they blatantly propose laws meant to reverse Reno v. ACLU. Mitt Romney and Mike Lawler admitted that the Protecting Americans from Foreign Adversary Controlled Applications Act (the TikTok "divest-or-ban" bill) is meant for censorship. Romney literally said in a forum with Secretary of State Antony Blinken on Friday that the law was meant to target it for unvarnished coverage of the war in Gaza, "Some wonder why there was such overwhelming support for us to shut down, potentially, TikTok or other entities of that nature. If you look at the postings on TikTok and the number of mentions of Palestinians relative to other social media sites, it's overwhelmingly so among TikTok broadcasts." So, like the dunderheads who helped down the Montana ban law last year, we have dunderheads at the federal level who pretty much provided TikTok a case that the PAFACA was created to retaliate against the platform for legally protected viewpoints that the government doesn't agree with. Lawler also said this was why it was passed as part of the foreign aid package. https://www.commondreams.org/news/gaza-israel-tiktok

• On the post: Bipartisan Group Of Senators Introduce New Terrible ‘Protect The Kids Online’ Bill

  

  T.L. ( profile ), 02 May, 2024 @ 12:51pm

  The fact that these bad and clearly unconstitutional Internet laws keep popping up (one already having passed this year, with the company it partly targets filing suit soon) suggests that many of our Congressional representatives and Senators want to reliitigate Reno v. ACLU (the case that struck down most of the Communications Decency Act, outside of Section 230, and established the First Amendment broadly protects the Internet). When you think about how this bill ignores COPPA's existing age-based rules and many others were drafted to apply standards similar to those applied to newspapers and broadcast media (as if Red Lion Broadcasting v. FCC feasibly could be applied to the Internet in the same manner), when it comes to content regulation or foreign ownership requirements, or undermine privacy, it really shows that the defunding of the Office of Technology Assessment under Newt Gingrich's Contract with America was a massive mistake as it left us with politicians that are so incapable of understanding how technology works that they cannot be trusted in any capacity to regulate the industry without destroying the open Internet in the process.

• On the post: Biden Bans The App His Campaign Insists Is An Important Place To Talk To Voters

  

  T.L. ( profile ), 26 Apr, 2024 @ 03:04pm

  The bill's original co-authors could also have developed a divestiture bill that was structured so that the financial penalty for not complying was put on TikTok/ByteDance, rather than on ISPs, app stores and web hosting providers with such excessive fines that it results in them having no choice but to suppress the speech of 150-170 million American users (equivalent to shutting down half of ABC, NBC, CBS, Fox or The CW's owned and affiliated stations). At least hitting ByteDance with the fine would have passed legal scrutiny; the way the law's structured opens broader 1A questions about whether the government can force ISPs, app stores and web hosting providers to block Internet platforms (and if so, how narrow limits should be; i.e., if it should be limited exclusively to platforms actively engaging in illegal activities, like CSAM), and whether this violates more than just the First Amendment and (likely) TikTok's due process rights as a U.S.-incorporated subsidiary (since the government seems to have asserted the company is guilty of things that it publicly acknowledges are hypothetical threats, and therefore must prove they're distinguishable from many of the same identified risks that are also associated with other social media platforms).

• On the post: Biden Bans The App His Campaign Insists Is An Important Place To Talk To Voters

  

  T.L. ( profile ), 26 Apr, 2024 @ 09:45am

  Expect the comments on any other TikToks Biden's campaign posts in the near future to attack him for continuing to use the app as a campaign tool (including the return of the old "delete your account" meme). Also expect it to be used against other Democratic candidates who do the same, and for all of them when the pending lawsuit gets heard in court. Biden has an out here. Settle and arrange a mitigation plan similar to the one proposed under the Project Texas initiative. (Chinese-owned Rails Corporation reached a settlement with the Obama administration in 2015, after a court ruled against the latter for denial of due process in its divestiture order on a wind farm project that Rails was acquiring, under terms that weren't as favorable to the government.) Sure, the China hawks maybe pissed at him for settling, but at least it'd be better for them than the government possibly losing a case over the PAFACA law, and splintering the under 30 vote (already in question WRT to the war in Gaza, as the protests have reignited in the wake of Iran's drone attack on Israel) to possibly cost him reelection.

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 10:27pm

  Trump's use of the IEEPA in that case violated the Berman Amendments meant to prohibit embargoes of First Amendment-protected materials (which the PAFACA effectively carves out for one set of the non-exhaustive list of materials in question, internet platforms), so the First Amendment considerations were kinda indirectly addressed there. (If the PAFACA is struck down, it should be determined whether it can be tailored to allow less restrictive monetary penalties directed solely at the covered company for non-compliance with a divestiture order under the preceding Berman Amendment protections, a "splitting the baby" approach that works with its limits on embargoes of 1A-protected materials.)

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 02:16pm

  "The law gives ByteDance 12 months to divest." Technically, the 12-month timeframe is optional (the main timeframe for covered apps to divest is nine months), and dependent upon whether ByteDance acquiesces to a sale and it is in progress during the period. If 12 months was a hard timeframe, it would actually give TikTok a sufficient timeframe to divest, since it takes six months to a year for a corporate divestment to be initiated or completed. (Note most divestiture requests made by the government usually have a deadline of 12 months, something that would be beneficial for TikTok's case, given Grindr secured a buyer almost exactly one year after the CFIUS, under Mnuchin's oversight, ordered the sale; so, the government needs to explain how they expect a complicated sale that few would be able to afford of a company worth at least $80 billion, under a law with an unclear definition of who would be considered a feasible buyer(s), can be completed in less than a year.)

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 01:39pm

  That's a novel legal argument that should have been addressed in Montana's attempted TikTok ban. I don't think it's been established that app stores, ISPs and website hosts have 1A protections to host platforms free from government regulation. Granted, Citizens United established companies have 1A protections, but that aspect needs to be looked into.

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 01:35pm

  To date, only one case has ever established that Bills of Attainder apply to corporations. The Second Circuit held this in Consolidated Edison Co. of New York v. Pataki (2000) that the Constitution’s Bill of Attainder Clause applied to a New York State law signed by then-Governor George Pataki that barred ConEd from collecting fees totaling $200 million from customers to cover expenses related to an 11-month shutdown of the Indian Point nuclear power plant due to cracked pipes from a steam generator.

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 01:23pm

  It would potentially splinter the 18-34 electorate (which several polls show oppose a ban), with some staying home out of disillusionment over D.C. ignoring their policy views and some others entertaining candidates like RFK, Jill Stein and Cornel West. If anyone (including one of Biden's strategists, who thinks it won't) thinks it won't hurt him or other candidates among young voters, a survey of Black voters by ClearPath Strategies (probably the first to actually gauge the political impact of a ban) found that 51% of those polled oppose a TikTok ban, 24% would be less likely to vote for a candidate who supported it and 77% favored data regulations applying to all social media platforms; extrapolate that 24% of 1,025 respondents to the broader 18-34 vote regardless of race/ethnicity, that could make the difference in some races (including Biden's). Also note it's still primary season, and given how Gen Z organizes on TikTok, any group could mount a campaign to get young voters to participate in upcoming House and Senate primaries to back challengers to incumbents who voted for the revised PAFACA and get them out in enough numbers in their districts to at least narrow their victories if not defeat them outright to show them those voters won't be taken for granted.

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 01:09pm

  Yeah, and look how that turned out. Two courts blocked it bc he misused the IEEPA in the manner this law is meant to carve out, and bc the government's evidence didn't show a credible threat warranting such restrictive measures and such threats illustrated were "phrased in the hypothetical" (as quoted by one of the judges presiding the lawsuits over the EO).

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 01:06pm

  Congrats Biden and Congress. (FIFY.) And, yes... the U.S. can never chastise any country for blocking Internet access or platforms again, without having this law (and the way it was passed, in the manner how autocratic regimes would implement vague, easily abusable national security-based laws, against public opposition) being thrown in our faces. So, the U.S. has no moral ground on this issue any longer... even if/when the D.C. Appeals Court and SCOTUS strike the whole thing down as unconstitutional.

• On the post: Biden Signs TikTok Ban Bill; Expect A Lawsuit By The Time You Finish Reading This Article

  

  T.L. ( profile ), 24 Apr, 2024 @ 01:01pm

  If the court decides singling out TikTok is unconstitutional under this law, wouldn't imposing a separate condition for forcing a divestiture kinda be a defiance of the court decision? This seems like something that would contribute to invalidating the entire law, 'cause it seems like a dubious legal framework. Again, the government would be on better legal footing if the bill didn't contain a ban provision (by penalizing ISPs, web hosting providers and app stores that offer the app post-deadline), and the divestiture order imposed the fine for non-compliance on the company itself. At least that would probably survive a legal challenge. The government's case is also undermined because they probably can't adequately explain why less restrictive measures (data privacy laws, mitigation measures like Project Texas, the latter seemingly subject to disagreements between the CFIUS members like what stalled any divestiture proposal) can't be employed, that some lawmakers have argued the intent is to ban or change editorial policies that the U.S. prefers, effectively throwing in content/viewpoint discrimination to the basis for it (including Mike Gallagher, the bill's co-author, who claimed like a few others that the app should be barred because of pro-Palestine content), and the government acknowledging publicly (and likely to Congress and Biden) that the threats asserted are hypothetical (one of the issues that sank Trump's 2020 EO, as courts are less receptive to most extreme measures done on a national security basis if there's no credible evidence that the threat is real/imminent and can't be resolved in less restrictive ways).

• On the post: Grindr Hit By UK Lawsuit For Reckless Sale Of Sensitive User Data

  

  T.L. ( profile ), 24 Apr, 2024 @ 06:45am

  Hindsight: This undercuts Washington's case for forcing ByteDance to divest or ban TikTok (the bill is now headed for Biden's desk after the Senate passed the foreign aid package it was surreptitiously attached to), since the CFIUS under the Trump administration forced Beijing Kunlun, Ltd. to sell Grindr in 2019 (the SPAC San Vicente Acquisition Corp. bought it almost exactly a year later), and yet... the data sale incidents mentioned here buttress the argument that it doesn't matter who owns an app (and in what country it's owners are based), as long as the lack of regulation on data brokers shows there are avenues to forward that data elsewhere. The fact is, some of these incidents happened even after the sale.

• On the post: The US Banning TikTok Would Play Right Into China’s Hands, And Destroy Decades Of US Work On Promoting An Open Internet

  

  T.L. ( profile ), 20 Apr, 2024 @ 07:37am

  Exactly. And, as the article points out, it gives a green light for other authoritarian and backsliding democratic countries to block access to the internet or individual websites, and the U.S. loses any credibility to criticize them for it. This would still be true if the PAFACA were struck down as unconstitutional even by the Supreme Court. That said, with the various internet laws already being implemented or proposed (whether it be KOSA or age verification laws), we kinda have eroded credibility on the open internet concept as it is, since these laws do infringe on speech and privacy to varying degrees.

• On the post: The US Banning TikTok Would Play Right Into China’s Hands, And Destroy Decades Of US Work On Promoting An Open Internet

  

  T.L. ( profile ), 20 Apr, 2024 @ 07:29am

  If that was the case, three judges (two in separate cases regarding Trump's 2020 EO, only one of which directly touched the 1A issue while the other did so indirectly through his use of executive trade authority, and the third in the Montana attempt last year) wouldn't have blocked attempts to ban TikTok already. The judges determined that the government couldn't prohibit civilians from accessing TikTok as their preferred medium to exercise speech and expression, and in the former, one of the judges determined that the government's evidentiary assessment of the platform didn't prove that there was a grave, immediate threat that warranted a ban, even under the backdoor of trying to facilitate a sale. You can apply less restrictive measures to mitigate a risk (data privacy laws for one), and the high bar that the First Amendment sets for restricting speech generally necessitates the government proving anything short of the most restrictive measures isn't sufficient.

• On the post: The US Banning TikTok Would Play Right Into China’s Hands, And Destroy Decades Of US Work On Promoting An Open Internet

  

  T.L. ( profile ), 20 Apr, 2024 @ 07:14am

  That's not how the First Amendment works. 1A case law doesn't make distinctions as to what medium that the speaker can speak from.

• On the post: The US Banning TikTok Would Play Right Into China’s Hands, And Destroy Decades Of US Work On Promoting An Open Internet

  

  T.L. ( profile ), 20 Apr, 2024 @ 07:11am

  The legislation clearly states that if Bytedance doesn't divest of TikTok in the revised nine-month timeframe, it will be banned. It is censorship, because it intends to unlawfully restrict protected speech hosted on the platform and prohibit people from using it, in exchange for compliance, the same issue that resulted in Trump's 2020 EO (using the same concept, albeit with an unlawful use of the IEEPA trade powers) and Montana's 2023 ban attempt (which was an outright ban that would only be undone once Bytedance sold TikTok) being invalidated by lower court judges. Your claim would have legs to stand on if the ban provision were not included in the legislation, as forced divestiture alone would be legal on its own, but First Amendment case law has established a right to receive material, even if the government disapproves of said material. Lamont v. Postmaster General applied this standard to a USPS statute the 1965 Supreme Court case invalidated that prohibited distribution of Soviet Communist propaganda through the mail, unless the recipient opted into receiving it, asserting that the government can't restrict access to propaganda, which can constitute both legitimate disinformation and facts that one elects to believe promote a false narrative because it doesn't fit their beliefs, hence why regulating propaganda could be an overbroad speech restriction impermissible under the 1A. Also, the 1A requires the U.S. government to at least balance speech and expression rights when undertaking actions meant to protect Americans from alleged or documented harms. The courts apply the strict/intermediate scrutiny standard to national security laws that conflict with the 1A, and in many cases, have determined that the government interest in such matters would be best served by less restrictive measures; a clean forced sale without the threat of speech suppression and blocking would be less restrictive and pass legal muster, so would mitigative measures like data privacy regulations (which Congress is actually proposing as of this writing) or the stalled proposal to allow the government to monitor TikTok's algorithm and data flows.

• On the post: The US Banning TikTok Would Play Right Into China’s Hands, And Destroy Decades Of US Work On Promoting An Open Internet

  

  T.L. ( profile ), 20 Apr, 2024 @ 06:46am

  The fact that Washington hasn't learned from the court failures of Trump's EO and the Montana ban attempt shows it doesn't understand that TikTok is subject to First Amendment protections, in relation to the speech hosted on the platform. We're just going to waste taxpayer dollars on legislation that may end up being held unconstitutional in the courts, just like those attempts. Clearly, the majority of D.C. doesn't realize that First Amendment protections apply to a still substantial enough extent to foreign nationals and entities, and many are kidding themselves that they're not regulating speech (it still counts), especially when they've expressed that they have issues with certain content (which would doom it on even intermediate scrutiny grounds, as the 1A doesn't allow the government to broadly regulate speech based on content, including, as Lamont v. Postmaster General established, propaganda). The timing couldn't be worse, because it undermines the message that Biden and Democrats are pro-democracy (especially among young voters, whose speech, expression and, for some, income would be impacted by this law), when being pro-democracy involves standing up for free speech and expression. Backing a law that likely violates the 1A to facilitate a sale of a platform does the opposite, and Democrats could have advocated for eliminating the ban provision so it could stand up in court, instead the majority of them are choosing to cosign on legislation that gives TikTok leverage in court, in the government self-own that Trump's EO and the Montana ban attempt were subjected to, along with the fact that politicians have been clear content is an issue (also what got the Montana law blocked). The "ban if you don't comply with the sale" provision would still be considered an impermissible restriction on speech, and given that TikTok has 150-175 million users, a burdensome restriction that would fail strict scrutiny and, given the government hasn't provided (and may very well still not have) credible evidence of an immediate threat, likely intermediate scrutiny as well, which is one of the reasons Trump's EO failed.

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