Monthly Archives: March 2024

Congress unfounded plan to ban TikTok under the guise of protecting our data is back, this time in the form of a new billthe Protecting Americans from Foreign Adversary Controlled Applications Act, H.R. 7521 which has gained a dangerous amount of momentum in Congress. This bipartisan legislation was introduced in the House just a week ago and is expected to be sent to the Senate after a vote later this week.

A year ago, supporters of digital rights across the country successfully stopped the federal RESTRICT Act, commonly known as the TikTok Ban bill (it was that and a whole lot more). And now we must do the same with this bill.

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TELL CONGRESS: DON'TBAN TIKTOK

As a first step, H.R. 7521 would force TikTok to find a new owner that is not based in a foreign adversarial country within the next 180 days or be banned until it does so. It would also give the President the power to designate other applications under the control of a country considered adversarial to the U.S. to be a national security threat. If deemed a national security threat, the application would be banned from app stores and web hosting services unless it cuts all ties with the foreign adversarial country within 180 days. The bill would criminalize the distribution of the application through app stores or other web services, as well as the maintenance of such an app by the company. Ultimately, the result of the bill would either be a nationwide ban on the TikTok, or a forced sale of the application to a different company.

The only solution to this pervasive ecosystem is prohibiting the collection of our data in the first place.

Make no mistakethough this law starts with TikTok specifically, it could have an impact elsewhere. Tencents WeChat app is one of the worlds largest standalone messenger platforms, with over a billion users, and is a key vehicle for the Chinese diaspora generally. It would likely also be a target.

The bills sponsors have argued that the amount of private data available to and collected by the companies behind these applications and in theory, shared with a foreign government makes them a national security threat. But like the RESTRICT Act, this bill wont stop this data sharing, and will instead reduce our rights online. User data will still be collected by numerous platformspossibly even TikTok after a forced saleand it will still be sold to data brokers who can then sell it elsewhere, just as they do now.

The only solution to this pervasive ecosystem is prohibiting the collection of our data in the first place. Ultimately, foreign adversaries will still be able to obtain our data from social media companies unless those companies are forbidden from collecting, retaining, and selling it, full stop. And to be clear, under our current data privacy laws, there are many domestic adversaries engaged in manipulative and invasive data collection as well. Thats why EFF supports such consumer data privacy legislation.

Congress has also argued that this bill is necessary to tackle the anti-American propaganda that young people are seeing due to TikToks algorithm. Both this justification and the national security justification raise serious First Amendment concerns, and last week EFF, the ACLU, CDT, and Fight for the Future wrote to the House Energy and Commerce Committee urging them to oppose this bill due to its First Amendment violationsspecifically for those across the country who rely on TikTok for information, advocacy, entertainment, and communication. The US has rightfully condemned other countries when they have banned, or sought a ban, on specific social media platforms.

Montanas ban was as unprecedented as it was unconstitutional

And its not just civil society saying this. Late last year, the courts blocked Montanas TikTok ban, SB 419, from going into effect on January 1, 2024, ruling that the law violated users First Amendment rights to speak and to access information online, and the companys First Amendment rights to select and curate users content. EFF and the ACLU had filed a friend-of-the-court brief in support of a challenge to the law brought by TikTok and a group of the apps users who live in Montana.

Our brief argued that Montanas ban was as unprecedented as it was unconstitutional, and we are pleased that the district court upheld our free speech rights and blocked the law from going into effect. As with that state ban, the US government cannot show that a federal ban is narrowly tailored, and thus cannot use the threat of unlawful censorship as a cudgel to coerce a business to sell its property.

TAKE ACTION

TELL CONGRESS: DON'TBAN TIKTOK

Instead of passing this overreaching and misguided bill, Congress should prevent any companyregardless of where it is basedfrom collecting massive amounts of our detailed personal data, which is then made available to data brokers, U.S. government agencies, and even foreign adversaries, China included. We shouldnt waste time arguing over a law that will get thrown out for silencing the speech of millions of Americans. Instead, Congress should solve the real problem of out-of-control privacy invasions by enacting comprehensive consumer data privacy legislation.

Read the original post:
Congress Should Give Up on Unconstitutional TikTok Bans - EFF

The House overwhelmingly voted Wednesday in favor of a bill that would force TikToks Chinese owner ByteDance to either sell the social media app or face a ban in the U.S. Backers of the bill claim TikTok poses a national security threat and could be used for surveillance by the Chinese government. Rights groups like the ACLU say such a ban would violate the right to free speech. There are around 150 million TikTok users in the U.S. alone. After voting, two of the lawmakers who voted against the measure, Democrats Ro Khanna and Pramila Jayapal, laid out some of the bills issues.

Rep. Ro Khanna: Its an overly broad bill that I dont think would stand First Amendment scrutiny. The other issue is that there are a lot of people who make their livelihoods on this.

Rep. Pramila Jayapal: There are timeline questions. A hundred and eighty days to sell a company this size is very difficult. What happens to antitrust law? Does it still apply? Does it not apply? And I think, you know, the questions of if this is a de facto ban, I think that is a real problem. And so but I also have problems by the way, four countries are named, but if Saudi Arabia buys it, is that fine?

The measure will now be taken up by the Senate.

Meanwhile, Palestinian rights activists say Israels war on Gaza has galvanized anti-TikTok sentiment in conservative and centrist lawmakers. In a leaked post-October 7 audio recording, Jonathan Greenblatt, head of the Anti-Defamation League, can be heard saying, We have a TikTok problem, referencing declining public support for Israel among younger people. The progressive group RootsAction also noted that AIPAC is the top donor to Congressmember Mike Gallagher, who authored the TikTok ban bill. This comes as Donald Trump flipped his position on the bill within the last week, now opposing the ban, after recently meeting with GOP megadonor Jeff Yass. Yasss company holds a 15% stake in ByteDance.

See the rest here:
U.S. House Votes in Favor of TikTok Ban Bill Amid First Amendment and Other Questions - Democracy Now!

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On May 5, 2022, Missouri Attorney General Andrew Bailey filed a lawsuit (Missouri v. Biden) in the US District Court for the Western District of Louisiana, accusing the Biden administration, federal agencies, and top health officials of colluding with social media companies. The suit alleges government officials engaged in a coordinated campaign throughout the COVID pandemic to remove disfavored content and suppress the expression of disfavored views in violation of protected speech under the First Amendment of the United States Constitution.

The case primarily concerns jawboning, or informal government efforts to pressure private social media companies into limiting or removing speech on their platforms. After a winding series of appeals and preliminary injunctions in the Fifth Circuit, the US Supreme Court agreed to take up the case, now Murthy v. Missouri, in its 2023-24 term. The record is marred by questions over the characterization and veracity of the underlying evidence.

The three questions before the Court are the following:

Briefs were submitted to the Court by the US Solicitor General (on behalf of the Petitioner, Surgeon General Vivek H. Murthy), the respective States, and other parties either in favor of Murthy or the states or neither party. To help Tech Policy Press readers better understand what arguments are being made by the amici, we put together short summaries. These summaries are intended to offer the broad contours of each brief, and thus do not always contain every argument contained within them. If the reader wants a complete version of any one brief, the link to the document is provided in the text.

Continued here:
Review of Amicus Briefs Filed in Murthy v. Missouri Before the Supreme Court | TechPolicy.Press - Tech Policy Press

In an opinion signed by Justice Amy Coney Barrett, the Supreme Court established a test to determine when a public official can be considered to be engaging in state action in blocking someone from their social media account. The official must have both (1) possessed actual authority to speak on the States behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.

The court issued a unanimous decision in Lindke v. Freed, a case about whether Port Huron, Michigan city manager James Freed violated the First Amendment by blocking and deleting comments on his Facebook page from resident Kevin Lindke, who critiqued Freeds pandemic policies. The test creates a new way to determine if an official can be held liable for violating a citizens First Amendment rights through actions on their social media pages.

But its not enough for a social media page to simply belong to a public official. Barrett wrote, The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rightsincluding the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms.

The distinction between private conduct and state action turns on substance, not labels

Barrett suggested that simple disclaimers could make a difference in the determination. Here, if Freeds account had carried a labele.g., this is the personal page of James R. Freedhe would be entitled to a heavy presumption that all of his posts were personal, the ruling says, but Freeds page was not designated either personal or official.

Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University said in a statement the court was right to hold that public officials cant immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.

But, Fallow added, We are disappointed, though, that the Court did not adopt the more practical test used by the majority of the courts of appeals, which appropriately balanced the free speech interests of public officials with those of the people who want to speak to them on their social media accounts. We hope that in implementing the new test crafted by the Supreme Court today, the courts will be mindful of the importance of protecting speech and dissent in these digital public forums.

The Knight Institute challenged former President Donald Trump in 2017 over blocking users from his @realDonaldTrump Twitter account. They argued his account was a public forum where people could not be excluded for their views, and the lower courts agreed. In 2021, when Trump was no longer in office, the Supreme Court ordered the lower court to vacate a ruling against Trump and dismiss it as moot.

Dhillon Law Group partner GaryLawkowskisaid in an emailed statement about the new ruling that the biggest impact of this opinion may not be the formal test set forth in its holdingrather, its language buried in the opinion that effectively creates a safe harbor for public officials who place disclaimers on their social media accounts, providing an easy way for public officials to stay on the personal side of the law going forward.

The justices vacated and remanded the case back to the lower court.

Go here to see the original:
Supreme Court defines when it's illegal for public officials to block social media critics - The Verge

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Doctor sues state of WA for his First Amendment rights - KXLY Spokane

The Supreme Court next week will weigh an epic First Amendment clash that is expected to have ripple effects for government regulators and advocacy groups across the country.

At issue in the upcoming March 18 arguments is whether financial regulators in New York infringed upon the First Amendment rights of the National Rifle Association by pressuring companies to end business relationships with the group following a school shooting in 2018 at Parkland, Florida.

The NRA noting the immense power of New York financial regulators to oversee licensing, impose fines, and launch investigations contends that the superintendent of the states Department of Financial Services, Maria Vullo under the direction of Governor Cuomo abused that power by encouraging insurers and banks to blacklist the NRA because of their distaste with the groups Second Amendment advocacy.

Ms. Vullos attorneys argue in a brief that the case is about the rights of government employees to enforce the law and to speak out about matters of public concern without fear that their statements will subject them to damages actions brought by entities that espouse controversial views.

The NRA is represented by the Brewer, Attorneys & Counselors law firm and the American Civil Liberties Union. The ACLU has said that its willingness to align itself with the NRA on the case despite its strong opposition to the NRA on many issues highlights the First Amendment stakes in the case.

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear, the ACLUs legal director, David Cole, noted at the time the NRA first sued in 2018. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes.

In 2017, Ms. Vullo began investigating NRA-backed insurance coverage for gun users dubbed murder insurance by critics amid legal concerns that the programs insured intentional criminal activity. The investigation ultimately ended with the insurers and the NRA paying hefty fines.

Several months later, the NRA says it began facing intensified criticism for its pro-gun rights advocacy, and Ms. Vullo began singling out the NRA. The group alleges that Ms. Vullo began to meet with insurance executives that did business with the NRA, in which she explained her campaign to penalize the NRA for its gun-promotion advocacy.

Following those threats, the NRA says companies began dropping the organization, citing fears about not being able to do business in New York if it continued to provide coverage for the NRA.

Mr. Cuomo issued a press release at the time directing the Department of Financial Service to urge insurers, banks, and other financial services to review any relationships with the NRA and consider whether such ties harm their corporate reputations and jeopardize public safety.

He noted that multiple businesses had ended relationships with the NRA after the Florida school shooting in order to realign their companys values.

The states financial service department regulates more than 1,400 insurance companies with assets totaling more than $4 trillion, the statement noted. Ms. Vullo was also quoted encouraging all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage these risks and promote public health and safety.

Mr. Cuomo publicly denounced the NRA on multiple other occasions, urging businesses to cut off any relationships with the group.

The NRA is an extremist organization, Mr. Cuomo wrote on X, then Twitter, in April 2018. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.

Several months later, he boasted that New York was forcing the NRA into financial crisis, and that it was time to put the gun lobby out of business, tagging his post with #BankruptTheNRA. We wont stop until we shut them down, he wrote in another tweet.

The ACLU is urging the court to apply a ruling from Bantam Books v. Sullivan in 1963, which it notes established that informal, indirect efforts by government officials to suppress or penalize speech by putting pressure on third-party intermediaries violate the First Amendment just as much as direct censorship.

If the NRA prevails, it will be positioned to pursue damages against Governor Cuomo, Maria Vullo, NYAG Letitia James, and the State of New York. The message will be loud and clear: the First Amendment belongs to the people, and public officials cannot wield government power to censor, suppress, or bankrupt their political enemies, NRAs counsel, William A. Brewer III, tells the Sun.

The case is important to any advocacy organizations that rely on First Amendment protections, he adds.

Though the NRAs First Amendment claims prevailed at the district court, the Second Circuit Court of Appeals reversed the decision, ruling that Ms. Vullos correspondence with financial institutions did not violate the NRAs free expression. The Court noted that the First Amendment does not impose a viewpoint-neutrality requirement on the governments own speech.

Citing the Second Circuit ruling, Ms. Vullos counsel, Neal Katyal of Hogan Lovells, tells the Sun that the superintendent did not engage in any coercive or otherwise improper behavior. Rather, it was the NRA that was in the wrong by selling illegal products, he contends.

This case has huge implications for the future of American regulatory law and the ability of public servants to communicate their positions on public policy, he says. At its core, this case asks a simple question: should the government be allowed to govern?

The NRA is targeting the government with meritless bad-faith lawsuits aimed at scuttling the most basic regulatory functions, he adds. Their position relies on an extreme and unworkable interpretation of the First Amendment and runs counter to a unanimous panel of the Second Circuit and decades of well-established Supreme Court precedent.

Originally posted here:
ACLU To Defend NRA as Supreme Court Weighs Whether New York Violated Gun Group's First Amendment Rights - The New York Sun