Can’t you ban an app based on purpose, “they’re using the app to spy on us”, and then case law applies it on an app by app basis?

Surely this would mostly apply to non-chinese companies, no? This would wipe the market out.

OK. How about “they’re using the app to spy on us for a Foreign Hostile Government”

Is "Foreign Hostile Government" an official legal distinction? I thought the US was still on good terms with China as a trade partner.

It’s a weird duality with import taxes acting as a middle ground. It seems the belief that a conflict with China is inevitable is becoming more pervasive. So much of the US economy relies on reselling Chinese goods that to stop trading completely would be calamitous. I think the idea is to keep trading right up until the war starts. I’ve already stocked up on goods and materials that are only available from China as I include myself as one of those who believe a great power conflict is coming.

Which goods in particular are you stocking up on?

I do small scale manufacturing as a hobby which covers quite a gamut of fields from woodworking, machining, electronics, chemistry etc. So a huge amount of tools and industrial consumables. A lot of electronics modules. Basically anything I think I might need I buy and store. My plan for war breaking out is to stay home and do engineering work.

> It seems the belief that a conflict with China is inevitable is becoming more pervasive.

An actual kinetic conflict would result in a complete destruction of the world economy and WWIII. You can't take these people seriously without carefully examining their motivations (certainly most notably, to build up the capacity of our own military).

They don’t start that way, they start as regional conflicts and grow. ‘How could we not help the poor so and sos that we’ve signed some tangling alliance with…’

"Foreign Adversary" is, and the US considers China to be one.

https://www.ecfr.gov/current/title-15/subtitle-A/part-7/subp...

Given the Snowden revelations any kind of reciprocity in the international community regarding that principle would make basically all US tech companies US-market only...

KSA used Pegasus to spy on and murder an american journalist. They're also a major shareholder of twitter.

I’m not really sure what the legal status of Pegasus is. Also, I doubt it’s on 150 million American’s phones, though who knows.

I don’t believe TikTok and Pegasus belong in the same category.

Regarding Twitter, only Elon can answer how much of American’s Twitter data is flowing through KSA, though I believe it’s zero.

Edit: I’m fully behind any moves to ban Pegasus.

So long as this is equally applied to a domestic hostile government I'm fine with that.

If only!

What purpose, though? Because if the purpose is "you're not allowed to spy", you can't ban software until you prove they're spying. And the US already has multiple laws that cover that problem, with courts being entirely allowed to rule that a product must be taken off the US market, be that a physical product or software.

This is congress trying to ban a named product by bypassing the courts, in order not to have to bother with the whole "burden of proof" thing, rather than the justice department bringing a case to the courts to get existing laws enforced.

And yes, technically it's "congress makes the laws, the courts enforce those laws", but congress is bound by the constitution, and if congress singles out a specific individual or company, that's (amazingly, because it almost never is) an actual first amendment violation.

Whereas taking a company to court in order to get it banned for "spying on behalf of a foreign nation" is not.

> until you prove they're spying.

Not that I agree with the premise above, but:

https://www.theguardian.com/technology/2022/dec/22/tiktok-by...

I'd rather you expound what what part you don't agree with, because what that link tells us is that the DoJ didn't consider that severe enough to push for a ban on the product.

It doesn't surprise me that they don't care, setting policy for forward looking national security matters isn't their job.

The part I disagree with is the idea that "they're using the app to spy on us" is a benchmark that some in the government care about, or a reasonable benchmark at that.

On this topic there are often people asking for evidence that TikTok has done anything wrong, but that's really besides the whole point. Governance can be an issue whether or not someone has abused a power. Past performance is not the be-all and end-all of security; means and motivations are also something to consider.

Wait, hold up, you're saying that the DoJ, which is definitely "some in government" (because congress is not government, it's just one part of the government, there are many more parts) don't use the law as their benchmark?

Because that would be literally the opposite of reality O_o

The question is around whether the DoJ can make things stick, and the DoJ doesn't waste its time, and doesn't burn its budget, on cases they know they can't make stick.

Apologies for lack of clarity, by "some in government" I was referring to the ones who are voicing concerns about TikTok.

Are national security arguments not legal? My understanding was that Chinese Tech companies are required by law to serve as (willing or unwilling) arms of the domestic spy agency in China.

If there are no clear rules, no, it's not legal (by definition, "law" is a set of clear rules).

If you decide that "no Chinese social network is allowed", you can create a law for that. But the TikTok ban is not like this.

If you care, you can find the clear rules here: https://en.m.wikipedia.org/wiki/RESTRICT_Act

Impact to the country's critical infrastructure and digital economy,

"Sabotage or subversion" of ICTS in the United States

Interference and manipulation of federal elections

Undermining the democratic process to "steer policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States".

> Are national security arguments not legal?

Arguments aren't a source of law, and what's permissible in legislation is defined by the constitution.

> what's permissible in legislation is defined by the constitution.

Oh, sweet, summer child.

The constitution and the dozens of dozens of interpretations of the constitution by way of case law rendered by the supreme court.

Reading the full text of the constitution won't do much but put you a toe past the starting line in understanding what is and is not "constitutional" in the US.

If the data collected on TikTok is a national security issue, that would be a good admission since it would mean we'd have to pass some actual privacy laws in this country. Facebook/Google/Microsoft/etc collect the same kind of data, and their revenues are not as important to protect as our national security (I assume).

Same as in the US.

National security arguments can only go so far without falling afoul of Constitutional principles. Earlier versions of this bill failed because their breadth made it clear it could be used in situations not involving China or other 'bad' tech actors.

A blanket ban on "Chinese tech" is immeasurably broad, and would harm legitimate business interests. Should Microsoft, Cisco and Oracle stop doing business in the country if they're selling products and services to Chinese tech firms?

Correspondingly, Tencent has holdings in many American companies, Reddit and Twitter being two. Should Reddit be forced to buy out their holdings?

> Correspondingly, Tencent has holdings in many American companies, Reddit and Twitter being two. Should Reddit be forced to buy out their holdings?

I mean, yeah maybe. If there's a real national security risk it would make sense. Not that I think either of those companies are in any way trustworthy, but let's not compound the dangers to the public with CCP interference.

> If there's a real national security risk it would make sense.

Precisely. But as it stands, they even haven't made a case against Tiktok, let alone private investments by Chinese companies.

There's nothing stopping the DOJ from laying charges against Tiktok US (the corporation) if there's evidence of contravening US law. But there is plenty of political hay to be made by suspecting that there might be. What laws, you ask? That too hasn't been clear, which helps explain why these bills fail again and again.

I think it’s fine to ban first and ask questions later. If we find out later we shouldn’t have done it we’ll just lift the ban.

In America it should not be "fine" to ban first and ask questions later. That's preposterous and sets a horrifying precedent. We're a trading nation, not a banning nation.

Also a free nation.

For certain definitions of free.

I think it's fine to incarcerate all Japanese first and ask questions later. If we find out later they aren't really spies and we shouldn't have done it we'll just release them. /s

I think it's fine to incarcerate suspected terrorists first and ask questions later. Since the courts most definitely won't allow that on American soil, we'll incarcerate them in Guantanamo. If we find out later they aren't terrorists we'll just release them. /s

I have no problem as far as handling it like a trade issue.

China doesn't allow such social media networks from the US.

I got no problem banning theirs.

'Social Media' isn't a product category with safety and quality guidelines like agriculture or steel. It can't be banned on the basis of tit-for-tat without triggering a trade war blanket-banning a whole range of consumer software.

First, the trade war already started with China banning US companies domestically. Second, it’s not like the US can’t trade more with its South American neighbors instead anyways.

> China banning US companies domestically.

When did this happen?

~2009 was FB, google, clouds followed in 2017 https://www.reuters.com/article/us-china-amazon-cloud/amazon...

What ban? FB, Google, etc simply chose not to follow chinese laws and left. What US laws is tiktok violating? None.

Please practice the lost art of reading the article. Hint: it's discussing possible legislation.

I am all for trying.

China doesn't have any problem executing suspected spies without trial, does that mean the US should too? The US has a constitution that gives people rights; the government can't just do whatever it wants. Regardless of your personal opinion on TikTok it doesn't change that it's a product used and loved by millions of Americans, and banning it has a meaningful negative impact on them.

That escalated quickly. The topic above isn’t about espionage (which also have penalties in the US), it’s about what type of regulations the government should place on foreign social media companies like TikTok or unfortunately in this case, against it’s own citizens that use them.

You might see wonderful flowers, rainbows, and ads for friendship bracelets while another person might see death, destruction, conspiracy theories, and ads for food prepping. Selective targeting is a power that politician have wanted for many decades. That was last available through Facebook Ads and became controversial years later with Cambridge Analytica.

On one hand, TikTok might be powerful enough to change the outcome of elections in more countries than just the US. On the other hand, access to information is generally a good thing and you want people to be knowledgeable and to make more informed decisions.

How about no when it comes to killing people as you describe?

But yes on social media.

I don’t see any issues with that.

China allows social media that complies with Chinese law. Google, Facebook, Twitter, etc exited China because they were being heavily criticized in the US for supporting the Great Firewall. It was closer to a US export ban than a Chinese import ban.

Well, I want to keep using TikTok.

The government can go suck eggs.

The media refers to it as a TikTok ban and its apparent that TikTok is the inspiration, but the RESTRICT act never mentions TikTok specifically. Instead, the act:

> proposes that the Secretary of Commerce be given the power to review business transactions involving certain information and communications technologies products or services when they are connected to a "foreign adversary" of the United States, and pose an "undue and unacceptable risk" to the national security of the United States or its citizens.

A court could still find it unconstitutional depending on how its targeted and the statements of its sponsors, but textually it is a ban based on broad criteria.

https://en.wikipedia.org/wiki/RESTRICT_Act

"Undue" national security risk? In contrast to a due national security risk? Who is writing these? ...

Yes. Risks judged reasonable are accepted.

Not really. IANAL but I imagine one could conditionally disincorporate tik tok (unless it complies with X Y or Z). Incorporation is a privilege, not a right, so that's not attainder. It would likely also be administrative , through FTC, so, also not congressional. At that point the owners of tiktok would become legally liable for the things that it does and also I think it would also lose safe harbor provisions. Nobody wants to operate a tiktok in that state.

> I guess you could ban all Chinese software using trade laws, but that has even bigger ramifications.

I guess you could institute privacy laws and regulations to protect consumers from all software.

I don’t understand how people don’t think the government doesn’t have the authority to regulate international commerce. They literally do this all the time, banning trade or goods from one country or another. I don’t think any country in the world guarantees citizens access to the international market.

I think for some reason since this is more public facing people seem to think it is somehow different than bans on Russian firearms or engaging with literally any commerce with Iran.

China banned all our social networks, we ban their's, simple trade stuff works.

To be a bill of attainder it would have to criminalize things that have already happened and were not criminal when they happened.

A bill that says it is criminal to have ever had TikTok on your phone or it is criminal to have every distributed TikTok in the US would likely be a bill of attainder.

A bill that says that after some date that future it becomes illegal to have TikTok or distribute it would not be a bill of attainder.

For China relationship, there should be reciprocity principle.