from the details,-details dept
With strong bipartisan support, the U.S. House voted 352 to 65 to pass HR 7521 last week, a bill that would ban TikTok nationwide if its Chinese owner doesn’t sell the popular video app. The TikTok bill’s future in the U.S. Senate isn’t yet clear, but President Joe Biden has said he would sign it into law if it reaches his desk.
The speed at which lawmakers have moved to advance a bill with such a significant impact on speech is alarming. It has given many of us — including, seemingly, lawmakers themselves — little time to consider the actual justifications for such a law. In isolation, parts of the argument might sound somewhat reasonable, but lawmakers still need to clear up their confused case for banning TikTok. Before throwing their support behind the TikTok bill, Americans should be able to understand it fully, something that they can start doing by considering these five questions.
1. Is the TikTok bill about privacy or content?
Something that has made HR 7521 hard to talk about is the inconsistent way its supporters have described the bill’s goals. Is this bill supposed to address data privacy and security concerns? Or is it about the content TikTok serves to its American users?
From what lawmakers have said, however, it seems clear that this bill is strongly motivated by content on TikTok that they don’t like. When describing the “clear threat” posed by foreign-owned apps, the House report on the bill cites the ability of adversary countries to “collect vast amounts of data on Americans, conduct espionage campaigns, and push misinformation, disinformation, and propaganda on the American public.”
This week, the bill’s Republican sponsor Rep. Mike Gallagher told PBS Newshour that the “broader” of the two concerns TikTok raises is “the potential for this platform to be used for the propaganda purposes of the Chinese Communist Party.” On that same program, Representative Raja Krishnamoorthi, a Democratic co-sponsor of the bill, similarly voiced content concerns, claiming that TikTok promotes “drug paraphernalia, oversexualization of teenagers” and “constant content about suicidal ideation.”
2. If the TikTok bill is about privacy, why aren’t lawmakers passing comprehensive privacy laws?
It is indeed alarming how much information TikTok and other social media platforms suck up from their users, information that is then collected not just by governments but also by private companies and data brokers. This is why the EFF strongly supports comprehensive data privacy legislation, a solution that directly addresses privacy concerns. This is also why it is hard to take lawmakers at their word about their privacy concerns with TikTok, given that Congress has consistently failed to enact comprehensive data privacy legislation and this bill would do little to stop the many other ways adversaries (foreign and domestic) collect, buy, and sell our data. Indeed, the TikTok bill has no specific privacy provisions in it at all.
It has been suggested that what makes TikTok different from other social media companies is how its data can be accessed by a foreign government. Here, too, TikTok is not special. China is not unique in requiring companies in the country to provide information to them upon request. In the United States, Section 702 of the FISA Amendments Act, which is up for renewal, authorizes the mass collection of communication data. In 2021 alone, the FBI conducted up to 3.4 million warrantless searches through Section 702. The U.S. government can also demand user information from online providers through National Security Letters, which can both require providers to turn over user information and gag them from speaking about it. While the U.S. cannot control what other countries do, if this is a problem lawmakers are sincerely concerned about, they could start by fighting it at home.
3. If the TikTok bill is about content, how will it avoid violating the First Amendment?
Whether TikTok is banned or sold to new owners, millions of people in the U.S. will no longer be able to get information and communicate with each other as they presently do. Indeed, one of the given reasons to force the sale is so TikTok will serve different content to users, specifically when it comes to Chinese propaganda and misinformation.
The First Amendment to the U.S. Constitution rightly makes it very difficult for the government to force such a change legally. To restrict content, U.S. laws must be the least speech-restrictive way of addressing serious harms. The TikTok bill’s supporters have vaguely suggested that the platform poses national security risks. So far, however, there has been little public justification that the extreme measure of banning TikTok (rather than addressing specific harms) is properly tailored to prevent these risks. And it has been well-established law for almost 60 years that U.S. people have a First Amendment right to receive foreign propaganda. People in the U.S. deserve an explicit explanation of the immediate risks posed by TikTok — something the government will have to do in court if this bill becomes law and is challenged.
4. Is the TikTok bill a ban or something else?
Some have argued that the TikTok bill is not a ban because it would only ban TikTok if owner ByteDance does not sell the company. However, as we noted in the coalition letter we signed with the American Civil Liberties Union, the government generally cannot “accomplish indirectly what it is barred from doing directly, and a forced sale is the kind of speech punishment that receives exacting scrutiny from the courts.”
Furthermore, a forced sale based on objections to content acts as a backdoor attempt to control speech. Indeed, one of the very reasons Congress wants a new owner is because it doesn’t like China’s editorial control. And any new ownership will likely bring changes to TikTok. In the case of Twitter, it has been very clear how a change of ownership can affect the editorial policies of a social media company. Private businesses are free to decide what information users see and how they communicate on their platforms, but when the U.S. government wants to do so, it must contend with the First Amendment.
5. Does the U.S. support the free flow of information as a fundamental democratic principle?
Until now, the United States has championed the free flow of information around the world as a fundamental democratic principle and called out other nations when they have shut down internet access or banned social media apps and other online communications tools. In doing so, the U.S. has deemed restrictions on the free flow of information to be undemocratic.
In 2021, the U.S. State Department formally condemned a ban on Twitter by the government of Nigeria. “Unduly restricting the ability of Nigerians to report, gather, and disseminate opinions and information has no place in a democracy,” a department spokesperson wrote. “Freedom of expression and access to information both online and offline are foundational to prosperous and secure democratic societies.”
Whether it’s in Nigeria, China, or the United States, we couldn’t agree more. Unfortunately, if the TikTok bill becomes law, the U.S. will lose much of its moral authority on this vital principle.
from the once-again-we-aren't-prepared dept
The U.S. is a global leader in traffic-related fatalities, with a thirty-percent jump in the last decade. That’s in contrast to every other developed country, which saw a decline.
So, of course, it’s a perfect time to flood American highways with a parade of extremely heavy EVs with unprecedented acceleration. Some of which are extremely pointy and feature half-cooked automation technology with a growing body count.
The dual-motor Cybertruck weighs 6603 pounds, while the three-motor Cyberbeast weighs in at 6843 pounds. The electric Ford Lightning weighs 6,500 pounds. The Hummer EV is even heavier, clocking in at 9,000 pounds, with a battery alone weighing more than a Honda Civic.
Experts have pointed out the significant safety ramifications of this transition for a while, but U.S. officials have yet to prepare the regulatory and policy landscape.
There are steps that regulators could take to get ahead of the problem and minimize fatalities, such as a scaling tax on vehicles over a certain weight. Or regulations designed to limit the ever-growing grills on giant vehicles (even big truck owners think trucks have gotten too big).
The U.S. is, of course, doing none of that. We’re also not preparing the road infrastructure — including basic things like guard rails — for our new daily driving reality.
The University of Nebraska was recently the latest to conduct a study on what ultra-heavy EVs do to our existing guard rails, which aren’t really designed to handle impacts beyond 5,000 pounds. As it turns out, when vehicles that weigh more than 7,000 pounds impact guard rails not designed for anything over 5,000 pounds, bad things happen:
The rush toward heavier EVs will result in everybody upgrading to bigger, heavier, and less efficient vehicles in an act of family and self protection. Add badly constructed and poorly regulated automation into the mix, and things get messier still.
It would cost $8 billion to upgrade the nation’s MGS guard rail system to protect public safety, so we aren’t going to do that because getting out ahead of obvious, avoidable problems isn’t really our thing. We’re going to wait until long after a parade of people die, at which point we might start thinking about implementing more meaningful physical and regulatory safeguards. Maybe.
from the what's-42.4-million-innocent-domains-among-friends? dept
Italy’s newly-installed Piracy Shield system, put in place by the country’s national telecoms regulator, Autorità per le Garanzie nelle Comunicazioni (Authority for Communications Guarantees, AGCOM), is already failing in significant ways. One issue became evident in February, when the VPN provider AirVPN announced that it would no longer accept users resident in Italy because of the “burdensome” requirements of the new system. Shortly afterwards, TorrentFreak published a story about the system crashing under the weight of requests to block just a few hundred IP addresses. Since there are now around two billion copyright claims being made every year against YouTube material, it’s unlikely that Piracy Shield will be able to cope once takedown requests start ramping up, as they surely will.
That’s a future problem, but something that has already been encountered concerns one of the world’s largest and most important content delivery networks (CDN), Cloudflare. CDNs have a key function in the Internet’s ecology. They host and deliver digital material to users around the globe, using their large-scale infrastructure to provide this quickly and efficiently on behalf of Web site owners. Blocking CDN addresses is reckless: it risks affecting thousands or even millions of sites, and compromises some of the basic plumbing of the Internet. And yet according to a post on TorrentFreak, that is precisely what Piracy Shield has now done:
The TorrentFreak article lists a few of the evidently innocent sites that were indeed blocked by Piracy Shield, and notes:
That lack of transparency about what appears to be a major overblocking is part of a larger problem, which affects those who are wrongfully cut off. As TorrentFreak writes, AGCOM’s “rigorous complaint procedure” for Piracy Shield “effectively doesn’t exist”:
That matters, because appeals against Piracy Shield’s blocks can only be made within five working days of their publication. As a result, the lack of information about erroneous blocks makes it almost impossible for those affected to appeal in time:
No wonder, then that:
In other words, not only is the Piracy Shield system wrongly blocking innocent sites, and making it hard for them to appeal against such blocks, but its inability to follow the law correctly is causing ISPs to ignore its rulings, rendering the system pointless.
This combination of incompetence and ineffectiveness brings to mind an earlier failed attempt to stop people sharing unauthorized copies. It’s still early days, but there are already indications that Italy’s Piracy Shield could well turn out to be a copyright fiasco on the same level as France’s Hadopi system, discussed in detail in Walled Culture the book (digital versions available free).
from the if-this-were-a-citizen's-dog,-a-cop-would-have-shot-it dept
Officers who handle drug dogs like to claim they’re so highly skilled at animal handling they can recognize otherwise imperceptible moves by their animals as the dog “alerting,” giving them (and, more literally) their animals free rein to perform warrantless searches of vehicles.
But when these arguments fail, and it’s apparent a K-9 cop just let their animal roam free, these same officers who pride themselves (at least when sworn in as witnesses) in controlling their animals claim these same animals can’t possibly be controlled. After all, the dogs operate on instinct, and who among us is capable of preventing an animal from acting on its urges?
Well, to be honest, all of us are expected to do that. That’s why we can be fined or arrested if our animal runs loose and/or injures someone else. Somehow, cops don’t expect the same standard to be applied to them and their supposedly highly trained dogs.
Fortunately, at least in this case, a court isn’t having it. In this case, an illegal search performed by “probable cause on four legs” gets tossed by a state appeals court because an officer failed to control his animal. (via FourthAmendment.com)
Here’s a very dry recounting [PDF] of the facts by the Wisconsin Court of Appeals.
Campbell challenged the search, arguing the dog’s decision to enter her vehicle violated her Fourth Amendment rights. The lower court, however, agreed with the government’s arguments that nothing happened here that wasn’t allowed by the Constitution, even if the officers failed to show they had the reasonable suspicion needed to allow a dog to intrude into the personal space that was the interior of Campbell’s vehicle.
Now, it’s very difficult to challenge dog searches like these. If you can’t prove the traffic stop has been unlawfully extended (as the Supreme Court ruled in the Rodriguez case), you’re left with the unpalatable option of basically arguing the dog didn’t alert. And that’s a tough thing to prove, since courts often give cops and their dogs the benefit of a doubt because (as the assertions go) cops and their dogs are law enforcement professionals and anyone subjected to a specious “alert” is just a criminal that happened to get caught.
In this case, the cops lose, along with their interloping dog.
The state offered a rather novel argument in favor of its intruding dog: the so-called “instinct exception.” This theory states a cop can’t help if a dog smells something illegal and decides to invade private property usually considered to be protected by the Fourth Amendment.
As this court notes, a few other courts have chosen to recognize this exception. This court, however, refuses to consider it a viable warrant exception. It says this particular issue will remain unsettled. But it goes further, informing Wisconsin law enforcement that even if it were willing to consider this exception binding law, it wouldn’t change anything here.
And why is that? Because a cop just allowed a dog to roam freely inside the car, not once, but twice. And this was captured by the officer’s dash cam.
As if that wasn’t enough violating of the Constitution, Al-Moghrabi did it again.
The only “instinct” in play here was the officer’s belief that he could do this and get away with it. But he probably never expected someone charged with minor drug possession to take this case to trial and force he and his fellow officers to explain their actions and, in hopes of keeping their evidence, blame it all on the dog.
The court says, fine. You want to use the “instinct exception?” Well, let’s talk about your “training and expertise.”
So, with nearly a decade’s-worth of training, Al-Moghrabi still couldn’t control his dog. That sounds like a failure in training, which isn’t a viable exception to the Fourth Amendment.
No evidence for you, says the court.
This is the sort of thing that can get civilian dog owners cited for negligence or failure to control their animals. But when a cop does it, they expect the court to allow them to benefit directly from their failures. Fortunately, it didn’t happen here. The evidence is tossed, along with a citation for $673.50. And that dollar amount was apparently enough to encourage the state to spend thousands of dollars to secure an adverse ruling that pretty much eliminates the option of claiming “but the dog did it!” the next time this happens.