T.L. 's Techdirt Comments

Latest Comments (183)

• On the post: No, TikTok Is Not ‘Programmable Fentanyl.’ Stop It

  

  T.L. ( profile ), 18 Apr, 2024 @ 12:06pm

  “While it’s unclear exactly where Congress currently stands on the push to ban TikTok in the US (or, at the very least, force ByteDance to divest its ownership stake in the company)”. It’s not that unclear, the Protecting Americans from Foreign Adversary Controlled Applications Act (the bill that passed as a standalone measure in March that would force TikTok to divest in approximately six months or be banned) is apparently being worked into the foreign aid package being voted on this weekend by the House. Basically, they’re trying to make sure that it gets codified by Congress, rather than let the Senate debate it on its own merits. That means by using the foreign aid process to advance it (barring that it’s somehow stripped from the final bill in the Senate), this constitutionally problematic bill would become law, resulting in our tax dollars being wasted on another lawsuit over a likely unconstitutional TikTok/internet bill that may also allow the government to block other popular foreign-owned apps (Shein, AliExpress, Temu, etc.) and give the executive branch authority it shouldn’t have regarding what people can access online, which undercuts Biden’s pro-democracy messaging (bc it’s not exactly the right message to say you stand for freedom, when you advocated for a law that would allow the government to strip the people’s right to access internet platforms of their choosing), and risks angering young voters and possibly helping Trump win in November by adding to potential disillusionment over the government ignoring their legislative concerns (on top of Gaza, the economy and the environment/climate change) that could push enough to stay home or vote third-party, splintering the youth vote. It would also incentivize autocratic governments and backsliding democracies to undermine internet freedom, ironically giving China reason to point out the U.S. contradicting itself on the matter after years of criticizing them for blocking websites. Content creators and (as a another recent TD article pointed out in the case of India after it banned TikTok in 2020) small business would also lose income: creators from income they make posting content (IG Reels no longer compensates creators, and it’d be difficult to rebuild their communities on other platforms), and smaller businesses through customer acquisition they may not as easily replicate on other social platforms. Problem is, according to a March report from The Intercept, intelligence officials in multiple hearings and other public statements have stressed that the concerns regarding TikTok are hypothetical (and in some cases, indistinguishable from the risks associated with other social media platforms in terms of data collection and foreign influence risks), which makes the whole thing look like one of the reasons why Montana's TikTok ban attempt failed, that it looks like an effort to stick it to China economically (aided and abetted by the fact that many of our politicians are tech inept or hold sinophobic beliefs that they can be led in the same way as those with financial conflicts of interest to TikTok's rivals), not based on a credible threat where less restrictive measures aren't applicable.

• On the post: No, TikTok Is Not ‘Programmable Fentanyl.’ Stop It

  

  T.L. ( profile ), 18 Apr, 2024 @ 10:13am

  "While it’s unclear exactly where Congress currently stands on the push to ban TikTok in the US (or, at the very least, force ByteDance to divest its ownership stake in the company)". It's not that unclear, the Protecting Americans from Foreign Adversary Controlled Applications Act (the bill that passed as a standalone measure in March that would force TikTok to divest in approximately six months or be banned) is apparently being worked into the foreign aid package being voted on this weekend by the House. Basically, they're trying to make sure that it gets codified by Congress, rather than let the Senate debate it on its own merits. It's referenced in passing here: https://www.politicususa.com/2024/04/17/mike-johnson-says-house-will-vote-on-ukraine-aid-on-saturday.html/amp That means by using the foreign aid process to advance it (barring that it's somehow stripped from the final bill in the Senate), this constitutionally problematic bill would become law, resulting in our tax dollars being wasted on another lawsuit over a likely unconstitutional TikTok/internet bill that may also allow the government to block other popular foreign-owned apps (Shein, AliExpress, Temu, etc.) and give the executive branch authority it shouldn’t have regarding what people can access online, which undercuts Biden's pro-democracy messaging (bc it's not exactly the right message to say you stand for freedom, when you advocated for a law that would allow the government to strip the people's right to access internet platforms of their choosing), and risks angering young voters and possibly helping Trump win in November by adding to potential disillusionment over the government ignoring their legislative concerns (on top of Gaza, the economy and the environment/climate change) that could push enough to stay home or vote third-party, splintering the youth vote. It would also incentivize autocratic governments and backsliding democracies to undermine internet freedom, ironically giving China reason to point out the U.S. contradicting itself on the matter after years of criticizing them for blocking websites. Content creators and (as a another recent TD article pointed out in the case of India after it banned TikTok in 2020) small business would also lose income: creators from income they make posting content (IG Reels no longer compensates creators, and it'd be difficult to rebuild their communities on other platforms), and smaller businesses through customer acquisition they may not as easily replicate on other social platforms.

• On the post: Biden’s New Net Neutrality Rules Don’t Prevent Anti-Competitive “Fast Lanes”

  

  T.L. ( profile ), 18 Apr, 2024 @ 08:21am

  This is the article I referenced: https://www.politicususa.com/2024/04/17/mike-johnson-says-house-will-vote-on-ukraine-aid-on-saturday.html/amp

• On the post: Biden’s New Net Neutrality Rules Don’t Prevent Anti-Competitive “Fast Lanes”

  

  T.L. ( profile ), 18 Apr, 2024 @ 08:07am

  I read on PoliticusUSA that as part of the foreign aid package being voted on Saturday, the House is planning to put in the Protecting Americans from Foreign Adversary Controlled Applications Act (the TikTok divest or ban bill that already passed the chamber in March) into the package. So, just like with the bill's original passage, they're basically trying to make sure that it gets codified by Congress and not let the Senate mull over it. Basically, they want to make this constitutionally problematic bill law by using the foreign aid process to advance it, waste tax dollars on another lawsuit over a likely unconstitutional TikTok/internet bill that may also allow the government to block other popular foreign-owned apps (Shein, AliExpress, Temu, etc.) and give the executive branch authority it shouldn't have regarding what people can access online, incentivize autocratic governments and backsliding democracies to undermine internet freedom, and risk angering young voters and possibly help Trump win in November based on disillusionment over the government ignoring their legislative concerns (on top of Gaza, the economy and the environment/climate change).

• On the post: A TikTok Ban Is A Pointless Political Turd For Democrats

  

  T.L. ( profile ), 15 Mar, 2024 @ 04:31pm

  It's important to separate the issue behind the forced sale provision. Forcing a sale is technically legal in of itself; the Committee on Foreign Investment in the United States does this often (and if the CFIUS had the sole say in requesting ByteDance to divest in 2020, and Trump hadn't interfered by announcing/issuing his unconstitutional TikTok ban/divestment EO and attempting to sell minority shares to campaign donors Oracle and Walmart, we wouldn't be in this mess now). However, because TikTok is a communications platform considered to be protected by the First Amendment, the government can't use the threat of a ban to force the sale, since that would suppress speech (of ~150-170 million users) too broadly. A court could strike down most of the Protecting Americans from Foreign Adversary-Controlled Applications Act, while narrowing the divestiture order portion to remove the ban provision (and possibly modifying the 165-180-day sale clock to allow more time for ByteDance to do proper due diligence). Even then, there's no guarantee ByteDance would sell to an American buyer; they could just as easily sell the shares held by its founders, Chinese investors and employees based in China to Japanese-based multibillion dollar investment firm Softbank for all we know, and given how high TikTok's reported valuation is (~$80 billion), a spinout (possibly in a manner similar to the Reverse Morris Trust concept, e.g., the way Warner Bros. Discovery was formed when WarnerMedia spun out of AT&T and merged with Discovery Inc.) would be the only viable way to divest, especially since the TikTok unit is technically incorporated in part in the U.S. anyway.

• On the post: A TikTok Ban Is A Pointless Political Turd For Democrats

  

  T.L. ( profile ), 15 Mar, 2024 @ 01:54pm

  I don't buy that logic. If they did, most if not the entire GOP caucus would have fallen in line with Trump's newfound anti-ban position (tied to Susquehanna International head Jeff Yass' willingness to donate to his campaign and Trump's grudge with American social media firms that banned him after 1/6, the latter being the reason he posts exclusively on Truth Social, even after Facebook/YouTube/xTwitter restored his accounts) during the House vote. Nobody would buy a deflection anyway, since only 50 House Dems and 15 House GOPers voted against the bill.

• On the post: A TikTok Ban Is A Pointless Political Turd For Democrats

  

  T.L. ( profile ), 15 Mar, 2024 @ 12:15pm

  The Fifth Circuit is royally bad at case law of all kinds (including those relating to the 1A), but the Supreme Court's current 6-3 conservative majority hasn't changed much when it comes to First Amendment law since Gorsuch, Kavanaugh and Coney-Barrett were each appointed, and has been mostly a direct contrast to the Fifth Circuit in that regard. Just a few examples: - In 2021, they ruled a Pennsylvania high school violated the 1A rights of a student who was given a one-year suspension from cheerleading after posting an angry, profanity-laced Snapchat message off-campus after she failed to make the varsity cheerleading squad. - In 2022, they unanimously ruled that the Boston city government, which has a program that allows individual groups to have their flags flown outside City Hall, violated a Christian group's 1A rights when it denied their request to raise a Christian flag over City Hall (presumably on the belief that it would be considered a government promotion of a religion perceived to be in violation of the 1A's freedom of religion clause). - In 2023, the court refused to hear a challenge to Florida's drag show ban that a lower district court found unconstitutional under 1A grounds. (You'd think given the right's culture war against the LGBTQ+ community, they'd take it up and the right-wing justices would uphold it, but that didn't happen; same for a non-1A case they also refused to take regarding a challenge to a district court ruling overturning a West Virginia transgender student's ban from a middle school girl's track team.) The First Amendment is probably the only form of case law where the SC's conservative justices don't guided by ideology or are wild cards on. (Granted they screwed up with the case regarding the Colorado baker who wanted to deny business from LGBTQ+ customers on "religious freedom" grounds, since the baker's business hadn't opened yet and there were no LGBTQ+ customers who wanted her to make wedding cakes for them, but that's the only 1A case under the current composition that I can think of where they fumbled.)

• On the post: A TikTok Ban Is A Pointless Political Turd For Democrats

  

  T.L. ( profile ), 15 Mar, 2024 @ 11:31am

  Which makes you wonder if all of this would go away if TikTok agreed to voluntarily give the NSA data on its American users upon request of a FISA order.

• On the post: Anti-Porn Clusterfucks: Pornhub Blocks Texas, Indiana Adopts Age Verification

  

  T.L. ( profile ), 15 Mar, 2024 @ 11:28am

  "Case law still exists. Hopefully, the likes of Texas and Indiana – really all of the states under the yoke of authoritarian anti-porn, pro-censorship laws – are finally reminded that this type of paternalistic meddling is un-American." They won't. It would take the Supreme Court (which, even in its current conservative majority, has been largely reluctant to uphold regulations that undermine the First Amendment) to remind them.

• On the post: Anti-Porn Clusterfucks: Pornhub Blocks Texas, Indiana Adopts Age Verification

  

  T.L. ( profile ), 15 Mar, 2024 @ 11:24am

  I saw a report after reading about this in the comments of another article published the day before this one that Aylo did explain why they blocked access to Texas (and parts of surrounding states with Texas-assigned IP address) to residents and tourists visiting their sites. They didn't go as far as to name-check specifically the Republican and Democratic lawmakers responsible for passing the legislation.

• On the post: A TikTok Ban Is A Pointless Political Turd For Democrats

  

  T.L. ( profile ), 15 Mar, 2024 @ 09:00am

  One of the U.S.'s fellow member states of the Five Eyes alliance thinks that what the U.S. is doing is a bad idea. Australian PM Anthony Albanese has come out against exiling TikTok from that country. When one of our diplomatic allies isn't convinced that a ban will solve anything, even with lobbying attempts down under by people like FCC Commissioner Brendan Carr, that's when you know this is a moral panic designed to avoid doing anything about protecting user data more broadly. ByteDance/TikTok will have a lot of evidence of unfair treatment by the U.S. government, BTW, given our social media platforms do many of the same things TikTok is accused of and rarely get penalized for if the Protecting Americans from Foreign Adversary Controlled Applications Act becomes law and they sue. The onus is on the government to prove their security risk claims justify such a heavy-handed approach when less restrictive measures exist, and given that First Amendment law applies an overbroadness standard when examining laws that restrict too much speech (regardless of the content and viewpoints expressed), this bill may well suffer the same fate as Trump's executive order and the Montana ban, although the latter also targeted specific content. Though even here, the PAFACA's co-author Mike Gallagher has expressed objections to content on the platform relating to the Gaza war: in a "Free Press" op-ed in November, one of the reasons he believes TikTok should be banned is because he believes they "promoted" pro-Palestinian content (read: content that organically went viral), support he wrongly believed equates to support for Hamas (Jonathan Greenblatt of the Anti-Defamation League has expressed similar sentiments, and at least one pro-Israel group commended the House for passing the bill), thus adding more questions about the bill's legality, since the First Amendment explicitly prohibits content-based restrictions.

• On the post: Once More With Feeling: Banning TikTok Is Unconstitutional & Won’t Do Shit To Deal With Any Actual Threats

  

  T.L. ( profile ), 14 Mar, 2024 @ 03:00pm

  Exactly. The fact that more than two-thirds of the House Democratic caucus voted in favor of his bill and Biden has stated he would sign the PAFACA if it's passed undermines any moral high ground that Democrats have when it comes to civil liberties. When the GOP has basically abandoned allegiance to democracy and civil rights (as typified by their actions to overturn a legitimate election, and passing laws to restrict LGBTQ+ and reproductive rights (among other liberties) thanks to Trump's influence, it's not a good look to co-sign on legislation that dictates what means of communication Americans can access. There's a reason why Biden and certain House Democrats (like North Carolina Rep. Jeff Jackson) who use TikTok have been flamed by users for supporting a law that could ban a platform they use to reach voters, it looks hypocritical, especially when they preach about Trump/MAGA's very real threat to democracy. It also furthers the false narrative that Democrats are no different than Republicans, which doesn't help when we're trying to assure people that Dems can be entrusted to protect American democracy, while the GOP has shown they can't be trusted to protect it. Any civilian who considers themselves leftist that justifies supporting PAFACA by ignoring the ban provision and the First Amendment implications that this bill entails should recognize the precedent it sets for the government to dictate what communications platforms private citizens can have access to, even under national security claims, because that standard can easily be abused in the future if Trump/MAGA regain power, just as how autocrats in other countries use national security to justify restricting any civil liberty they want to destroy.

• On the post: Once More With Feeling: Banning TikTok Is Unconstitutional & Won’t Do Shit To Deal With Any Actual Threats

  

  T.L. ( profile ), 14 Mar, 2024 @ 01:22pm

  Adding to that point, the fact that the majority of House Democrats (including those like North Carolina's Jeff Jackson that have TikTok accounts who got flamed accordingly when posting videos justifying their decision to support the PAFACA) supported the bill and Biden has indicated he will sign it if it passes undermines Democrats' argument that they are pro-democracy. It's not a good look to co-sign on actions that impair constitutional speech rights when Republicans have turned on democracy, and throughout the country since Trump reshaped the GOP, have been more than willing to restrict freedoms (LGBTQ+ rights, reproductive rights, etc.). Dems already are subject to the false equivalence that they are no different than Republicans, the fact that all but 30 House Democrats approved a constitutionally problematic bill like PAFACA with all that it entails, alongside all but 15 Republicans, only furthers that narrative. Anyone who calls themselves leftist justifying this bill should know better than to agree with setting a precedent on civil liberties that can be abused in the future if Trump/MAGA regain control of the government.

• On the post: Trump Is Right (For The Wrong Reasons): A TikTok Ban In The US Would Be A Huge Problem

  

  T.L. ( profile ), 12 Mar, 2024 @ 11:22am

  To clarify, the U.S./North American operations of TikTok are incorporated as a Delaware Chancery Corporation, though the global subsidiary is incorporated in the wealthy's favorite corporate/personal tax haven, the Cayman Islands.

• On the post: Trump Is Right (For The Wrong Reasons): A TikTok Ban In The US Would Be A Huge Problem

  

  T.L. ( profile ), 12 Mar, 2024 @ 11:15am

  FWIG, the ownership structure of ByteDance and its TikTok Inc. unit are broken down as follows: - ByteDance founders and Chinese/Hong Kong investors (20%) - other global investors from the U.S. and Europe like Blackrock, Carlyle Group, General Atlantic and Susquehanna International (60%) - employees (20%)

• On the post: Trump Is Right (For The Wrong Reasons): A TikTok Ban In The US Would Be A Huge Problem

  

  T.L. ( profile ), 12 Mar, 2024 @ 11:01am

  There's no difference as to the First Amendment implications, whether as a state or federal act. The implications are extraordinarily burdensome, and unwarranted as less restrictive measures can be undertaken that protect speech rights if a national security risk actually even exists.

• On the post: Trump Is Right (For The Wrong Reasons): A TikTok Ban In The US Would Be A Huge Problem

  

  T.L. ( profile ), 12 Mar, 2024 @ 10:55am

  The one thing everyone has been missing in this conversation is that TikTok expanded the so-called "creator economy" that platforms like YouTube and Twitch built and which for many is a better option than holding a 9-to-5 job that doesn't pay as well, not to mention that it allowed small businesses a better venue on social media to acquire customers and draw attention to their products. Creators and small business owners will get hurt by a ban. For creators, most will lose a source of income (sole or supplementary to other platforms) and struggle to rebuild their fanbase on other platforms (including those who have diversified to other platforms already, like Twitch, YouTube, OnlyFans, etc.) Instagram stopped paying Reels users last year for the content they post, so they can't make up the difference there. Small businesses will find it more difficult to acquire customers and grow rapidly through viral marketing. It's for these reasons why the Trump EO and the Montana ban weren't only subjected to lawsuits filed by TikTok, but by groups of creators and small business owners, because they ignored that content creation careers and business growth were being put at risk by people who didn't understand the damage that could be incurred to the creator economy and the small business community; you'll see creators and business owners sue the government again if the PAFACA becomes law. The government doesn't seem to understand or care that there are people who will be hurt economically and struggle to regroup because they want to bring people into a geopolitical Cold War/moral panic/performative distraction to real privacy reform that they don't want to be part of.

• On the post: Trump Is Right (For The Wrong Reasons): A TikTok Ban In The US Would Be A Huge Problem

  

  T.L. ( profile ), 12 Mar, 2024 @ 10:33am

  Forcing a sale is not unconstitutional itself, it's the threat or imposition of a ban on a platform that hosts speech in order to facilitate the sale that is. The federal government can restrict access to an app or website on government-owned devices, but it can't dictate whether the public can or cannot access them on personal devices; First Amendment-protected materials are usually exempted from federal trade restrictions. The First Amendment precludes embargoes on the importation or exportation of various forms of print, audio and video materials, broadcast materials, artwork and other images, methods of personal communication, and other informational materials (that includes software, which TikTok constitutes). These restrictions on materials protected by the First Amendment (regardless of their country of origin) are already enshrined in the Berman Amendments of the International Emergency Economic Powers Act and the Trading with the Enemy Act.

• On the post: Trump Is Right (For The Wrong Reasons): A TikTok Ban In The US Would Be A Huge Problem

  

  T.L. ( profile ), 12 Mar, 2024 @ 10:18am

  The U.S. can regulate foreign companies in a manner similar to domestic ones; furthermore, the federal government can undertake mitigative measures to perceived national security risks that balance constitutional protections, in point of fact, that there are less restrictive measures to mitigate the alleged risks suggest a ban isn't necessary and therefore a burdensome restriction on speech of the type normally undertaken in authoritarian countries wouldn't stand up in court as it would be considered a "last resort" measure. It's also noted that TikTok Inc., as a subsidiary of ByteDance, is incorporated in Delaware, has offices in L.A., New York and D.C., and has a sizable share of non-Chinese shareholders (like Yass).

• On the post: Once More With Feeling: Banning TikTok Doesn’t Do Much If We Don’t Regulate Data Brokers And Pass A Privacy Law

  

  T.L. ( profile ), 11 Mar, 2024 @ 09:06am

  Problem is, China doesn't have free speech protections, so they can restrict any websites and apps they want. The U.S. can't do that, because we have constitutional protections on speech, and restricting apps and websites from foreign nations wouldn't fit within the narrow exceptions to First Amendment rights as it would incur limits to accessing protections on speech on too much of the population (under the "least restrictive means" concept)... and yes, that includes foreign propaganda (which even the Supreme Court, in a 1960s case dealing with restrictions on Soviet propaganda, has held cannot be restricted under the 1A). The risk is China can damage the U.S. economy in retaliation by forcing American companies doing business there (like Apple, Microsoft, AMD and GM) to cease operations or manufacturing, or force them into selling their Chinese operations over to Chinese companies under specious national security grounds. This would be very problematic from a supply chain perspective as a large percentage of products sold here in the U.S. are manufactured in China.

Next >>