background: https://apnews.com/article/tiktok-ban-bytedance-bill-divest-5b5a685e8f1e19d22182d62526bf19b8
https://www.reuters.com/world/us/bytedance-tiktok-divestment-bill-would-give-government-stronger-legal-position-2024-03-08/
possible challenges:
1. It's effectively a bill of attainder effecting arbitrary punishment on one particular company. Bills of attainder are prohibited.
2. Social media is protected by the first amendment -- the government can't just order a newspaper to shut down, or order it to sell to new owners, and a social media app is no different. Foreigners have the right to publish stuff in the US. Even if that incidentally involves collecting info about their customers that the foreign government might someday require them to hand over.
Resolves N/A if the bill doesn't pass. Resolves NO if the bill is enforced. Resolves YES if the enforcement is blocked by courts. Remains open while the appeals process is pending.
outside view: 1 out of 1 previous attempt to do this (trump's) was blocked by courts.
Possible clarification from creator (AI generated):
A temporary injunction/stay that is still in place when the law is repealed counts for a YES resolution
A temporary injunction that is later removed or successfully appealed is not sufficient for a YES resolution
If Congress repeals/modifies the law while an injunction is still in place, mooting the lawsuit, that counts for a YES resolution
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still shocked by the way SCOTUS was unanimous on this. It's a bill of attainder banning one foreign media company from publishing its media product in the US. Even if it had been in cahoots with the CCP, it'd still be unconstitutional. And there's no public evidence they ever gave user data to the CCP.
@JonathanRay It's like if congress passed a law requiring Youtube to ban RT unless RT sells its news operations to the BBC.
@JonathanRay it's insane how just saying "national security" means people don't have basic constitutional protections.
We're not in late stage capitalism, this is still an early stage!
@JonathanRay foreign companies sorta don't have rights. I'm not saying it's morally right or whatever, but it's not that surprising IMO. I thought the main chance for TikTok would be if SCOTUS wants to appease Trump
@DavidFWatson But U.S. citizens gave a right to view content that it's government would prefer it not to view. And the law punishes those citizens, and not just Byte dance.
@DavidFWatson "the right to receive publications is(...) a fundamental right, necessary to make the express guarantees [of the First Amendment] fully meaningful.” -Justice Brennan, Lamont v. Postmaster General (1965)
@TiredCliche more seriously, Lamont involved direct restrictions on receiving specific types of political content, the TikTok law regulates foreign adversary control over a platform rather than its content. Further it's not an outright ban, the law provides a pathway for Americans to continue accessing TikTok's platform through the divestiture option.
@DavidFWatson This is untrue. The TikTok law regulates the content. It prevents American companies from distributing the content, and Americans from receiving it. The "not an outright ban" excuse is a bit silly, you can't threaten to violate fundamental rights in order to get a company to do what you want.
If the alleged threat is from Bytedance harvesting customer data and giving it to the damn Reds, that's no problem. Regulate that. But taking away Americans' freedom to access content the government doesn't like does not seem like a great idea. If I want to add Xi Jinping on FindMyFriends, I have every right to do it.
@TiredCliche The First Amendment protects Americans' right to communicate with foreigners, but not a foreign adversary's right to build surveillance databases on 170 million Americans. Losing access to TikTok's content burdens free speech, that burden is incidental to preventing massive data collection. The key distinction is between individual rights to share information and a platform's systematic harvesting of data from millions of non-consenting Americans. Direct regulation of ByteDance's data collection would be effectively impossible to enforce, making the access restriction a necessary, if uncomfortable, solution to a national security threat.
Were you opposed to the Grindr divestiture?
@DavidFWatson "Losing access to TikTok's content burdens free speech, that burden is incidental to preventing massive data collection." This is a value judgement, and one that I disagree with. I believe that having the right to view content that the government does not want you to view is a crucial aspect of the first amendment. It's kind of the whole point!
"a platform's systematic harvesting of data from millions of non-consenting Americans". Who, of course, consented. It's in the Terms of Service. I note that as of yet, we have seen no evidence of the national security threat. We're just told by the government that it is one, and the evidence is a secret. Secrets much like everything about the Grindr negotiations, which remain classified. Neither you nor I know if we were opposed to what was threatened behind closed doors.
"Direct regulation of ByteDance's data collection would be effectively impossible to enforce." Says you. Just enforce a law that prevents US ISPs from uploading anything to ByteDance's servers. Downloading is fine, uploading is prohibited. There would be no free speech issue there.
@TiredCliche The "consent" argument misses the point - TikTok collects data not just on users who accept the Terms of Service, but on millions of non-consenting third parties through contact lists, facial recognition, and device tracking. Your individual right to share data doesn't extend to helping a foreign adversary collect information on unwitting Americans.
The ISP solution is technically naive. ByteDance could simply route uploads through intermediary servers, use encryption to hide data transfers, or exploit numerous other technical workarounds. That's precisely why the Court found structural separation necessary - anything less would be trivially circumvented.
As for the classified evidence - yes, judicial review of secret evidence is concerning. But that's exactly why the Court explicitly based its ruling only on the public record, which amply demonstrates ByteDance's data collection capabilities and its legal obligations to share that data with the Chinese government. Sometimes protecting fundamental rights requires preventing hostile foreign powers from exploiting those rights to undermine national security.
@DavidFWatson Can you point me to this section where the Court found that anything else would be circumvented? This is an argument I'm skeptical of, but if I were wrong- if there was really NO WAY to allow Americans to view TikTok content without sharing all those types of data you listed- then I might agree with your position. But just allowing downloads without allowing uploads- why is that so impossible?
@TiredCliche sorry, that was my personal knowledge as an engineer, it’s just not how the Internet works, essentially all IP communications are two way.
@JonathanRay First of all, thank you for setting up this market, which clearly addressed a timely and important question.
Re the Supreme Court's decision: Obviously I was on the opposite of you on this. FWIW my view was:
(1) Federal courts are much more likely to overturn state courts than to overturn Congress. Lower federal courts often are allowed to overturn state court legislation without any Supreme Court review, but almost every time that a lower court overturns a federal law enacted by Congress, the Supreme Court will take the case. It's very, very rare that the Supreme Court overturns acts by Congress. They're much more likely to overturn state actions that are out of step with the rest of the country.
(2) I don't think the "bill of attainder" argument works since precedent is pretty clear that a "bill of attainder" refers only to a punishment. Congress can't pass a law saying some particular person must go to jail or suffer a fine. But they have pretty broad authority to regulate companies, even if the regulations single out one particular company. There are lots of cases saying that, so I always thought the bill of attainder argument was a clear loser.
(3) On the First Amendment issue, (a) the Supreme Court is especially deferential to Congress when it comes to concerns of national security and (b) the Court generally scrutinizes laws that are "content neutral" much less than laws that discriminate against a particular viewpoint or content. Here, I think both of those factors together explain the Court's decision. The Court viewed the law as "content neutral" because it's not discriminating against a particular viewpoint or even a particular topic. And Congress had a credible national security justification for the decision, as there is already evidence that China has used TikTok to do things like spy on foreign journalists. The concept of having restrictions on foreign ownership in sensitive industries already exists in a bunch of places (e.g., airlines, defense contractors, even broadcast networks), so the idea of extending that to a social media company didn't seem all that far fetched.
Given the above, I felt like I had strong confidence this law would not ultimately be struck down, assuming the Supreme Court weighed in. One thing that did cause me to hesitate was that the resolution criteria created the possibility that there might be, for example, an administrative stay or a lower court stay against the law -- and then Trump might change the law before the Supreme Court settled the issue. It always seemed to me the greatest risk of a "yes" resolution would be if the case was not fully decided on the merits by the Supreme Court and Trump changed the law when some sort of temporary stay was in place. But the risk of that went down a lot once the Supreme Court agreed to take the case on an expedited basis.
The New York Times just updated their headline to, "Supreme Court Seems Poised to Uphold Law That Could Shut Down TikTok" (before it just said the court was hearing arguments).
I listened to only a portion of the argument, but questions from Jackson, Kagan, Barrett, and Kavanaugh seemed to signal they were pretty lop-sided against TikTok. Roberts appeared to be leaning against TikTok as well. In the part I heard, Gorusch was the only one who seemed sympathetic to their argument, but there might be others who I didn't hear speak up.
Supreme Court has granted certiorari, but deferred the request for an emergency injunction. Oral argument will be held on January 10 (9 days before the law becomes effective), presumably meaning that they'll vote after argument and grant the injunction requested by TikTok if (but only if) there are five votes to strike down the law.
Miscellaneous Order (12/18/2024)
@JohnHughes it is possible they'll grant a temporary injunction at some future date but ultimately decide against TikTok
TikTok lost its legal challenge this morning. To prevail now their only options are to petition for rehearing/rehearing en banc or to the US Supreme Court.
WaPo: "Trump expected to try to halt TikTok ban, allies say"
this was mostly already known, but recent explicit confirmation that trump is gonna try and stop this
@Ziddletwix if the law is repealed before any court issues an injunction against it this resolves NO. If there is a preliminary injunction and then the case is mooted by repealing the law this resolves YES.
(Comment deleted! Never mind, I see you clarified this long ago.)
@JonathanRay To clarify a scenario that could apply here, if DC Circuit or SCOTUS “stays” application of the law (rather than actually enjoining it as unconstitutional), merely so that SCOTUS can have time to consider a cert petition and take the case — and Trump withdraws or Congress changes the law while the stay is in effect, I assume this still resolves “no”? Just want to make sure this is a bet on what courts will do on the merits, as opposed to a bet on whether the effective date of the law gets delayed and then Trump changes it even after courts upheld it.
Obviously if SCOTUS does take the case I assume market would remain open until either they rule or law is changed — since it would still resolve yes if SCOTUS (or en banc DC Circuit) reversed the panel decision and enjoins the law.
@JohnHughes I previously wrote:
"1. an injunction that is later removed or successfully appealed is not sufficient for a yes resolution
2. If congress repeals/modifies the law, mooting the lawsuit, while the injunction was still in place, that counts for a yes resolution."
Temporary injunctions/stays count towards a yes resolution if still in place when the law is repealed. Aside, in order to obtain a temporary injunction, TikTok would have to show a substantial probability of winning on the merits.