Every legal action was unprecedented at some point, until a precedent was set. That alone is not a strong argument against the TikTok ban being just.
In addition to that, note that the EFF post you linked to mentions Lawfare's primer [1] which explains the legal case for the divesting order. In short, Congress delegated some of its constitutional authority over foreign commerce to the President in 1988, explicitly empowering the President to prohibit mergers, acquisitions, or takeovers that threaten national security. TikTok's acquisition by ByteDance falls under that authority.
[1] https://www.lawfareblog.com/tiktok-and-law-primer-case-you-n....
However, Congress cannot delegate a power they do not have. The US Constitution specifically states that:
> No Bill of Attainder [law to punish a particular person or company, rather than those who meet certain categories] [...] shall be passed.
> No person [that includes corporations] shall [...] be deprived of life, liberty, or property, without due process of law
These combine to limit the degree to which Congress can decide to just punish a certain company. For instance, they can certainly pass a law saying that any company that threatens national security must be sold or cease doing business. But I believe under current legal precedents Congress could NOT pass a law saying that TikTok must be sold (for no reason... just because Congress doesn't like it) or that all companies that are owned by Democrats must be sold.
Now, if TikTok actually threatens national security, then no one questions whether the President has the authority to order it sold. But "due process" requires that the decision of whether it threatens national security be made on the basis of some reasoning. They don't have to necessarily be RIGHT about whether it threatens national security, but they do at least have to have some reason for believing that it does.
ByteDance claims that the decision was completely arbitrary and based on nothing more than "the company is based in China". If that is true, then this is reminiscent of the Japanese internment camps in WWII -- nothing but plain racism on the part of the government. If that is NOT true, and TikTok threatens national security (not just Donald Trump's ego), then of course it should be sold.
I look forward to finding out the truth of the matter.
Any acquisition involving foreign commerce is subject to the approval of the CFIUS (Committee on Foreign Investment in the United States). Following is an explanation taken from a recent Congressional Research Service report [1] (page 5).
"These regulations created an essentially voluntary system of notification by the parties to an acquisition [...]. Despite the voluntary nature of the notification, firms largely comply with the provision, because the regulations stipulate that foreign acquisitions that are governed by the Exon-Florio review process that do not notify the committee remain subject indefinitely to divestment or other appropriate actions by the President. The regulations make it clear that the President alone determines 'whether a transaction threatens national security.'"
When ByteDance acquired TikTok, they chose not to undergo that review. This was their legal right. However, that made their acquisition liable to be retroactively disallowed by the President.
> The regulations make it clear that the President alone determines 'whether a transaction threatens national security.'
HOWEVER, I maintain that this authority can only be exercised under certain restrictions. For instance, if the President were to declare that all social media companies that "fact check" his statements threatened national security that would be a violation of the first amendment (free speech). As such, the courts would be responsible for overturning his declaration.
Similarly, if the President were to just declare ByteDance to be a threat to national security without even having a reason for doing so, I maintain it would violate the requirement to engage in due process. He doesn't need to have a GOOD reason, but it can't be "because I feel like it" or "because they said mean things about me".
I'm not clear on whether the right to due process is inapplicable because ByteDance voluntarily chose not to undergo the review.
[1] https://casetext.com/regulation/code-of-federal-regulations/...
If TikTok were made in India, then you would have a good point.
Yes I am.
My concerns center the precedent of banning software. If banning software to further the interests of national security is established as a precedent, it is reasonable to assume this will be weaponized against end-to-end encrypted messaging apps like Signal. This would erode a strong, hard fought for precedent that code is speech. The Bernstein v. Department of Justice decision ended Export Control of encryption on the basis of software as speech. [1] Courts affirmed this right again in a ruling against a California law banning the sale of violent video games to minors, as it infringed on the speech of video game companies. [2]
Since you brought up China's policies, they also happen to ban end-to-end encrypted apps as there is a strong precedent for doing so in the interests of national security. [3] These simply aren't policies worth emulating.
[1] https://www.eff.org/press/archives/2008/04/21-40
[2] https://www.law.cornell.edu/supct/html/08-1448.ZS.html
[3] https://www.nytimes.com/2017/09/25/business/china-whatsapp-b...
They want control over media, especially political content. They want to make sure speech, affiliation and such is under their control. Are you saying the US should adopt this approach?
Trade fairness is a red herring.
The patriarch of a neighboring family does not welcome members of your family into their home, so why should your family welcome them into yours? On the other hand, that the patriarch practices domestic violence is another matter; you don't mirror that.
In any case, the has never been symmetry... or any intention to have symmetry. Each country has its goals. That's how trade deals always work.
China's primary goals were/are exports and the abovementioned protection against foreign and/or free media. The US' goals are US investment into china, an american-like legal framework for protecting these investments and adoption of US-compatible IP protections. That's what each side wanted. It reflects values. That's what they got. Both complain they didn't get enough of what they wanted.
It's not like the US is going to adopt elements of chinese patent law for the sake of symmetry.
Is this what's happening right now? Is there political speech being conducted on tiktok that the president doesn't like? Can the same speech be found on other platforms (eg. twitter)?
The US has the 1st Amendment. China doesn't (but should).
If we're just talking about investment, then things are not as asymmetric as you claim. Chinese investment in the US has historically been tiny compared to US investment in China. That only began to change a few years ago, as China began to invest abroad, but the US' protectionist policies have now essentially ended Chinese investment in the US.
Given “apps” have been around in a significant way since only 2008 [1], this is equivalent to saying Obama didn’t ban any apps in the name of national security.
Banning foreign companies in the name of national security is well precedented and Congressionally authorised.
No it's not. China has banned most Western apps in the interests of national security.
And that article you listed on analysing TikTok is hilariously incompetent. Didn't think to investigate multiplexing data with the video stream ?
Chinese law doesn't carry a legal precedence in the US court system. My concerns regarding free speech and the precedence for banning end-to-end encrypted apps remain in tact. Additionally, China bans end-to-end encrypted messaging apps, which bolsters my concerns regarding precedence.
>And that article you listed on analysing TikTok is hilariously incompetent. Didn't think to investigate multiplexing data With the video stream ?
Even if I concede that no one has proven the apps safety, it seems to me that the burden of proof should be on the administration to demonstrate that the app behaves in uniquely dangerous ways, not on security researchers to prove that it doesn't.
> is largely unprecedented "in the US".
As others stated, if the US wants to start using China as a country to base its precedents on, that's even more concerning in my view.
It might be the first US mobile app however I will grant you that.
Which companies currently banned in the US would you say are comparable to TikTok in terms of the threat they could potentially pose?
Otherwise you end up with companies that will oppose the US because it doesn't ruin their business but which will cave to other countries because it will. An "every body else is doing it" argument works a bit differently when there is no higher power to appeal to.
Moreover, I think the whole thing kind of represents an adoption of the Chinese position. Since Deng ("let in fresh air, but keep out the flies"), China's attitude has been to liberalize economically but reject political rights.
Political rights like speech, affiliation, and such were seen as dangerous. Media, especially, was seen as something highly dangerous. Anything with potential to cause another tianmen is a "national security interest." They did not want what happened to the USSR to happen in the PRC.
The US is moving closer to this position. Espionage concerns may be a catalyst, but if you listen to legislators (eg congressional grillings) it's clear that content is their concern. Are you giving my opponent more eyeballs than me? Are you promoting left/right wing content? Why is this protest more prominent than that one?
The reality of modern politics is that online media is as important as CNN. Murdoch matters less than Zuck now. Politicians are highly sensitive to this.
There still hasn't been a politically (in the US) important media company that wasn't western. Tiktok has the potential to become one. US legislators seem as likely to allow a chinese CNN to succeed in the US and China is to allow CNN to succeed in China.
I mean we could also say that we might simply disagree with China politically enough to justify such an action (like the US has done against Cuba, Sudan or Iran).
I do agree with you and think though the fact that it's targeting a single company is a bit odd (like other commenters above has also said - why TikTok and not just an industry or sector from a country) and raises some concern from me as well.
I think the government should lock them up, simply because that would show elites the nonsensical reality which everyone else is subjected to! There are no principles. Whoever has the money and the most political connections can do whatever they want and everyone else can shut the hell up.
It's about time the elite neoliberals actually participated in their own system on a 'level playing field' (as in, the rigged-game field which everyone else is forced to play on)... There is no free market, hasn't been one for over a decade.
The government should ban TikTok because that would send a powerful message to technocratic neoliberals; let them know what unrestrained capitalism is really about.
Our corporate masters think that employees should bow down to them, but they will not bow down to their own masters (Trump). It's about time they find out what happens when you don't bow down to your master. Welcome to neoliberal capitalism.
Do you think the USA and it's allies allowed Soviet companies to run amok during the Cold War?
What we're watching unfold now is way more complicated, and will be way more protracted, than the Cold War was.
In the USA. China has done is many times.
I imagine China disallows end-to-end encrypted messaging apps as well, which is largely the basis of my concern.
Operating a social network app is not a protected form of free speech.
There are two 1A considerations here: whether an "app" is speech, and the speech of TikTok's users. If courts decide that TikTok is a "public forum," then there would be precedence to prevent the privation of this public forum in the interests of free speech. [1] On the other consideration, one of the landmark cases regarding software, Bernstein v. Department of Justice, ruled that code is speech, and this directly lead to the end of export control on encryption. [2] This has been further affirmed by a ruling in favor of the video game industry against a law banning the sale of games to minors in CA. [3]
[1] https://www.law.cornell.edu/supremecourt/text/482/569
Once the precedent is set it will be damn near impossible to go back; just look at the Patriot Act.
The jump from banning Huawei from building critical public infrastructure to banning an app that hasn't even conclusively been proven to behave in any uniquely dangerous ways seems to be an intense, unjustified escalation of this conflict. [1]
You may disagree with me on the strict security-related merits of banning TikTok, and I am willing to concede all of them, however this will, either way, establish a precedent of an app's coverage by 1st amendment free speech protections, and of what standards the government needs to do to ban an app, whether it be a Chinese social media app or an end-to-end encrypted messaging app. [2]
If the standard is simply to claim that it's "a national security threat" without requiring any further evidence (besides the fact that it's Chinese) then that might be cause for concern.
[1] https://medium.com/@fs0c131y/tiktok-logs-logs-logs-e93e81626...
[2] https://www.eff.org/deeplinks/2020/08/tiktok-ban-seed-genuin...