Regarding TikTok, foreign-owned companies must follow U.S. laws, which are subject to due process. Additionally, they must not pose an imminent threat to national security. For better or worse, the government tends to be tight-lipped about matters of national security and isn't compelled to divulge details to the public. Normally, this is acceptable because we trust our government to act responsibility and in our best interest. Is TikTok a legitimate threat to security? I don't know, and with Trump's tendency to make everything look like a publicity stunt, my trust in the government to use its power responsibly is not very high.
This one of the better/saner things this administration has done, if anything, these should have been accelerated to avoid another USSR style Cold War with China.
The same is might be true of ByteDance as well. It's not actually clear that Trump has the authority to ban TikTok. It could just be more bluster.
Also, according to the Supreme Court, SAP, Volkswagen, and Sony are entitled to due process under our Constitution. Courts make a distinction between (1) public or privately-owned enterprises, (2) state-owned enterprises that function independently of the state, and (3) state-owned enterprises that function as the alter ego of the foreign state.
Companies in the first two categories are entitled to due process under the U.S. Constitution. When it comes to China, there is a blurry line between companies and the CCP, so it's not clear where they fall here.
I didn't think State Governor's could ban legitimate business activity until very recently either.
Ice cream parlors? Are they necessary? No, but they're allowed to be open.
Hair cutting? Closed. Restaurants to-go food and alcohol? Open. Bars? Closed. Hiking trails? Open. Camping? Closed.
Very little makes sense, and almost all of it is political.
If the Government wants to prevent you from operating your otherwise legal and legitimate business, they should have to pay you for lost revenue.
That's how it's been done in my state, and we've done very well compared to the rest of the nation. If we (nationwide) had actually shut down in the beginning instead of half-assing it we wouldn't be where we are now.
So from a purely rights and spying perspective having the app be a US app vs a China app makes little difference to me (not that I'm young enough to be a TikTok user anyway).
As soon as you add 'national security' clauses and hide everything away, you don't really have due process any more. You have two paths. The public one, and the one where it's possible to assert (possibly falsely) that it's a matter of national security.
[1] https://en.m.wikipedia.org/wiki/National_security_letter
Taken from the article you shared:
"By law, NSLs can request only non-content information, for example, transactional records and phone numbers dialed, but never the content of telephone calls or e-mails."
"Moreover, a recipient of the NSL may still challenge the nondisclosure provision in federal court."
In any case, I'm not sure that any of the protections apply to foreigners (the criticism is all about how they might accidentally target Americans) so for those who are neither Chinese nor American citizens, it makes no difference. I would be happy to be completely wrong about this if you have information about how foreign citizens' rights are protected from US intelligence gathering.
The NSLs were merely meant as an example to show how US companies can also be compelled to assist in their government's intelligence gathering. You're right that they can (in theory?) challenge the secrecy part specifically.
Did you read my comment?
The request can be fought in court, and the request does not give them access to actual contents. For example, they can NOT get the contents of an email.
Are you not aware that Apple has beaten the FBI several times in court and did not have to unlock an iPhone?
> In any case, I'm not sure that any of the protections apply to foreigners
This has nothing to do with citizens or foreigners. This is about companies. US Companies do not need to comply with US Government requests for information, Chinese companies MUST comply with ALL government requests to ALL information.
Edit: Also, regarding companies/citizens/foreigners, this is the NSA program under which it collects data from American companies and promises to only use it to spy on foreigners: "PRISM is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies ... U.S. government officials have ... defended the program, asserting that it cannot be used on domestic targets without a warrant"[1]
[1] https://en.wikipedia.org/wiki/PRISM_(surveillance_program)
This is not quite what happened. In the most famous cases, the FBI wanted (effectively) for Apple to build them a back donor that they could use as they wished. Apple argued that while it was legal for the government to demand information with a warrant, it was not legal to force programmers to write code for the FBI under threat of legal action.
Moreover the case was dismissed after the FBI admitted they could already access the phone in question, having purchased an exploit for it from a vendor.
Only on the FISA court, a secret parallel court system.
In addition, the legal challenge usually happens AFTER the letter is complied with, which makes it moot.
These letters can, and do, end up causing companies to fold (e.g. lavabit) if they refuse to comply.
Like many other national security issues (such as FISA court rubber stamps) there are theoretical checks and balances that do not tend to do much checking or balancing in practice.
1. Expert opinion seems to be that the perceived threats indicated in the case of TikTok are vague and over hyped, and there is no concrete evidence produced.
2.Federal Government may not have sufficient authority to promulgate such a ban, even on grounds of national security. May be possible to squeeze out the cash flow of the company through trade restrictions, may be able to mandate that this app cannot be used by federal employees while on duty, may be even possible to disallow their usage on federal government premises, but it cannot ask Apple and Google to take an app down from the app stores.
3. If that is the case then we are moving into a government-licencing regime in the US, effectively. That is, you can have your app distributed only if you have the necessary license/authorization from fed government which can be revoked at any moment. I don't think that is the right direction. So to have such special powers for ostensibly national security purposes is undesirable and detrimental to the very system that US is claiming to champion.
The whole episode is wrapped up in a frenzy of reactionary whipped up paranoia that is reaching an alarming cacophony considering the commentary here.
This is obviously a nuanced matter, and needs to be approached as such, not with a coldwar-era Hollywood Manichaeian dualism.
If TikTok was not a foreign-owned app, I don't think that Trump would have a leg to stand on, but because it is, I'm not entirely certain he doesn't.
I am guessing everyone working in the Software and Internet Industry are so used to Absolute Free Trading, where you could have someone using your SaaS from any parts of the world, with Discovery And Distribution Channel infrastructure in the whole world half sorted out. No one realise Importing and Exporting of real products and services have gazillions of restrictions.
US can stop the import and export of certain products or services from certain countries on any grounds, due to protection ideal ( These deals has always been in place ) Whether that is Food, Steel, Raw Materials or even Services. Using either Standards, Safety Policy, Tariff or other means necessary, or in other words, excuses. The same is true to EU, and especially China, who has been playing this game may be better than anyone.
That would be akin to US ( or in fact any countries ) working in China are required set up a Chinese JV. ( You can read up on what is happening to ARM China CEO ). So this is a policy change not a change of law. And even that is not entirely true, because under the current policy there are different rules to State Companies, and Chinese company can no longer prove they are not a state company. ( May be that is the part they break the law )
And in case someone ask why you have one specific set of policy for China? I would have answered would you expect to have the same policy for everyone including North Korea?
I view this as a trade issues, and China are no longer welcome to trade with US in many front, including its internet services. And in all fairness no one should be blaming US about it.