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Comment by hirundo | Hacker News Reader

Banning a speech app should trigger strict judicial scrutiny for first amendment infringement in the same way that banning a newspaper would:

1. Is it necessary to a "compelling state interest"?

Maybe they are CCP surveillance apps, but that needs be shown in court, not merely asserted.

2. Is it "narrowly tailored" to achieving this compelling purpose?

This seems narrowly tailored to two apps.

3. Does it use the "least restrictive means" to achieve the purpose?

Like demanding that they change the apps rather than banning them.

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Which is what the ACLU is saying.[1] "Selectively banning entire platforms violates the First Amendment and harms freedom of speech online." Expect a lawsuit in days, if not hours.

[1] https://www.aclu.org/news/free-speech/dont-ban-tiktok-and-we...

I tend to agree with them here, but the thing that always gets me is how many people will support these same actions if, instead of being done by the elected government, they're done by unelected internet companies that hold monopoly power.

I get why that may be more of a problem legally, but not why so many people agree with it morally, because they come from people not otherwise inclined to agree with the proposition that a monpolist's business decisions are somehow above scrutiny.

That's definitely a concern, but the more pressing concern is allowing the government to hold this power – something I think we can all agree shouldn't be allowed (without due process).

Because first amendment is to limit government power. Private companies are not obliged to give you right to free speech. In theory private companies compete against each other but government has a monopoly on legalized violence.

Yes, that's the legal claim. What's the moral claim?

TikTok takes down content it doesn't like on a regular basis. It's pretty well known if you use tiktok. Not saying they shouldn't be able to do that, its part of how they got their For You page so popular.

Whether a website wants to display tiktok or not is the same thing - it'll do whatever it thinks will get more users.

The last point I made is the moral argument "in theory private companies compete against each other but government has a monopoly on legalized violence." Government must be constrained because you can't get away from it.

Now it is true commercial monopolies can also exert coercion on their customers, so we have antimonopoly laws. These laws likely need updates to deal with natural monopolies coming from the strong network effect in the internet era. And the interaction with free speech right in social networks will be an extremely challenging issue.

It seems to me that you agree that morally, companies shouldn't be exerting monopoly power in this area, otherwise we wouldn't need updates to the law, so I won't quibble.

The moral claim is private companies maintain private property for the benefit of their customers.

I am focusing on WeChat only with this comment.

It is not narrowly tailored or least restrictive. Narrowly tailored means the law must be precisely written to minimize the 1st Amendment impact. In this case, this order prevents millions of Americans from using their primary (and oftentimes only) method to communicate with family in China. There is no practical alternative to WeChat as all other similar apps are banned in China, so this order is extremely restrictive.

Can you provide a solution that has less 1A impact about Chinese app ran on Chinese servers? I don't think that USG could achieve the goals of Chinese not being able to intercept US communication with anything less than a ban on some level.

Yeah, I can provide an alternative solution: ban its use within the government for sensitive uses, but allow its use by citizens. Issue a public notice to citizens that any wechat communications may be known by the chinese government.

If there's an actual national security issue with private citizens using the app, they should air it and give it a chance to be addressed, or succeed in court on its merits.

> I don't think that USG could achieve the goals of Chinese not being able to intercept US communication

Frankly, that shouldn't be a goal of the us government for private citizens. The us government can protect government communications all it wants, but private citizens should be free to use chinese services if they want. I know someone learning chinese in an american college, and one of their resources is using weibo (a chinese twitter clone basically, definitely hosted on chinese servers). If US private citizens using wechat is "china intercepting us communication", than this person using weibo and emailing chinese students to learn would count too, right?

It seems like a clear violation of the 1st amendment, and the justification seems very flimsy, at best.

The issue is not strictly limited to 1A issues or concern over intercepted communications, though. There's a much larger elephant in the room: a social media app, wildly popular with easily influenced young people, that the Chinese Communist Party has, effectively, editorial control over. That's, imo, the most concerning issue here. Imagine what you could do with this power.

(I ask that question a bit tongue in cheek, because we should also be asking it of Facebook/Twitter/Google et al.)

Imagine what you could do with a newspaper where the editor has editorial control. Oh the horrors!

I’m not sure what point you’re trying to make. Are you admitting that TikTok and WeChat are essentially “news” apps that CCP has editorial control over?

It is also violation of free association, because social apps have a community aspect.

> Yeah, I can provide an alternative solution: ban its use within the government for sensitive uses, but allow its use by citizens.

Use by citizens is already allowed; the order doesn't address it at all.

Honest question: Can you just use email?

Yeah, and if I ban you from using postal services, you can just rely on using pigeon carriers for mail.

If what I said sounds ridiculous, that's exactly how your email proposition sounds to people who are used to WeChat. We can argue semantics and details, like "but it isn't the same, because this and that, etc.". But, at the end of the day, if email was even close to being as convenient as WeChat for the purposes that most people use WeChat for, people would've been using email already.

It just seems strange that there's only one option available. In the US there are so many options that I find myself using an app just to talk to a specific friend, e.g. to talk to John, I'll use Twitter DMs, but I'll use Facebook to talk to Mike. Maybe this is a lesson to not consolidate literally every function of daily life into one superapp?

I think a lot of the issues on that front stem from the Chinese side where the CCP has placed vast restrictions on internet and application use.

And if for example Facebook messaging is banned you will then have to talk to Mike using Twitter DM which may be an big pain in the ass, maybe Mike isn't on Twitter or can't use it.

>Maybe this is a lesson to not consolidate literally every function of daily life into one superapp?

Sure, the thing is, people in China didn't choose to consolidate it all in one app, their government made that choice for them.

Your examples with Twitter and FB are perfect here, because both of those services are blocked in China.

And whose fault is it that "all other similar apps are banned in China"?

Given that context, without overwhelming evidence that there's absolutely no connection between the Chinese government and WeChat, this is fair play, and the only valid arguments against this move are tactical rather than legal.

>And whose fault is it that "all other similar apps are banned in China"?

I'm not sure that 'China is doing it too' has any bearing on the lawfulness of US government action.

>without overwhelming evidence that there's absolutely no connection between the Chinese government and WeChat

I think the burden of proof goes the other way.

If the argument was restricted to a claim that the technical details of the ban should be slightly different, you might have a point. But the Constitution is not a suicide pact. Something along these lines has been compelled by geopolitical game theory for years, as soon as it became clear that the preferred no-retaliation tactic was not going to work here. Laws will be updated as necessary to adapt to the strategic imperative.

As a Chinese person, I'll take this over internment camps any day of the week.

edit: To downvoters: I lived and worked in Shenzhen and Beijing in 2011-12. I aspired to do work there that was useful to humanity as a whole, both inside and outside of China, and it was already perfectly obvious then that I'd need to make use of my work not require any trust in the Chinese government. Not because of an existing law, but because of common sense regarding how much the rest of the world was going to continue putting up with. So I open-sourced everything that mattered, and that work did in fact go on to become trusted by professionals on both sides of the Great Firewall. Perhaps I'm still setting an unreasonable standard, but it's not one that I didn't try to meet myself.

> I'm not sure that 'China is doing it too' has any bearing on the lawfulness of US government action.

But that's essentially the basis for the other side of the argument in this case, namely that because China only allows certain apps which are hosted and monitored within China, America must too allow those apps which are hosted and monitored within China.

> In this case, this order prevents millions of Americans from using their primary (and oftentimes only) method to communicate with family in China.

Didn't look that way to me? The order prohibits services from providing the application or updates to it via an "online mobile application store in the US", it prohibits services from doing any payment processing for WeChat, and it prohibits services from providing hosting or content delivery for WeChat. But while it's doing its best to make it difficult for Americans to obtain WeChat, (1) it does not actually prohibit them from doing so, and (2) it very much doesn't prohibit anyone from using WeChat. (Except for monetary transfer; that's prohibited.)

> But while it's doing its best to make it difficult for Americans to obtain WeChat

By banning WeChat on the app stores, this will eventally restrict the entire general public's access to their platform of choice for 1A protected expression, because their access is subject to never buying a new phone, never resetting their phone, and praying WeChat never issues a required update. As time passes and the above situations occur to more and more users, the 1A impact continues to grow until it encompasses all users. The courts are quite capable of seeing how today's ban will affect tomorrow's free speech.

Also, before someone makes the "sideloading" argument, consider that on iOS it is effectively impossible for the general public. On Android, it is cumbersome and confusing enough that it presents a significant barrier as well. The courts will not ignore that.

Translated to a more familiar medium, the analogy would be: “bookstores can no longer sell that title, but that’s ok because people who already own a copy can still read it.” I’m not a constitutional scholar, but this seems like a pretty weak counterargument to me.

I agree with your analogy, and I agree that this is a terrible move.

But for the demographic mentioned ("this order prevents millions of Americans from using their primary (and oftentimes only) method to communicate with family in China"), I find it vanishingly unlikely that any of them doesn't already have wechat. The order has essentially zero immediate effects on them.

On the contrary, I think it's vastly more consequential than the corresponding argument wrt a hard-copy book or CD-ROM. A single OS upgrade can render an application completely inoperable. Had this ban been timed slightly differently, the recent iOS 14 update could have shut down every copy running on iOS devices. Every typical iOS user (and many Android users) are "N days" from total failure of the app on their device, for values of N ranging to a few hundred.

This seems narrowly tailored to two apps.

Doesn't that make it a Bill of Attainder, which is unconstitutional? https://en.wikipedia.org/wiki/Bill_of_attainder

A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial.

That part of the Constitution applies to Congress. They can not single out individuals (or individual corporations by Amendment 14) for punishment by legislation. Punishment is the role of a court trial.

>is an act of a legislature

Seems pretty clear that this does not apply to actions of the commerce department because they are not a legislature. They are not finding China / the apps guilty of a crime or punishing them for that crime.

Even if Congress issued this ban, Congress has the explicit right to regulate commerce in the constitution. Trade embargo and sanctions are a very well established power of the government and does not include "declaring a person or group of people guilty of some crime".

Also this kind of action may intersect with constitutional foreign policy powers, which I think are far less familiar to regular people than other constitutional concepts from the Bill of Rights, etc.

The Bill of Rights limits Constitutional foreign policy powers.

the commerce department because they are not a legislature

The Commerce Department operates as a proxy for Congress. They were set up to fully codify and implement the broader regulations enacted by Congress.

Congress can't create a proxy that has the power to do things that the Congress itself doesn't have the power to do itself.

If you want to pretend that this isn't being done under the aegis of Congress but rather the Executive, you're going to have to point to me the enumerated power that gives that branch the power to regulate commerce at all.

They are not finding China / the apps guilty of a crime or punishing them for that crime.

That's the same legal silliness that our law enforcement folks like to use to justify asset forfeiture. I was under the impression that the consensus around here is that it's BS.

> The Commerce Department operates as a proxy for Congress.

That's how the government works. Congress writes the laws and the executive branch executes the laws... That doesn't make the executive branch part of the legislative branch.

"In the United States, the Department of Commerce is an executive department of the federal government concerned with promoting economic growth. This organization's main purpose is to create jobs, promote economic growth, encourage sustainable development and _block harmful trade practices of other nations_[1]". The department of commerce is literally a part of the executive branch. Of course they operate with the support of Congress, they are implementing the laws that Congress writes. That's how the government works. I don't know what point you're trying to make.

[1] https://en.m.wikipedia.org/wiki/United_States_Department_of_...

> Seems pretty clear that this does not apply to actions of the commerce department because they are not a legislature

Right. The executive declaring guilt and imposing criminal punishment would just be a violation of the 5th Amendment due process clause. But this isn't declaring guilt and imposing punishment, it's, superficially at leaat, making a finding delegated to the President by Congress under law designed to regulate foreign trade for the purpose of protecting national security.

Whether it comports with the detailed requirements of the authorizing law, whether the law as a whole or this specific action citing it violate the Constitution, and a number of other things may be reasonable questions, but this whole “bill of attainder” thing isn't on a number of levels.

PSA: If you have an Android phone, you can download WeChat directly from wechat.com. You don't need to go through the Google Play store because your OS supports your freedom to some degree to install whatever you want on hardware that you OWN.

If you have an iPhone, sorry that your phone company's CEO is pretty much a dictator and is complicit in restricting the freedom of Americans.

How come the argument "you can just buy an android phone" doesn't apply to iOS users in the same way "you can just sideload an APK" does to Google play store users? This isn't a rhetorical question, I'm genuinely curious about how people think of these distinctions.

For one thing, buying a new phone, buying all your apps again for a different app store, and transferring all your data isn't a trivial task.

Sideloading is free.

sunk cost fallacy. If you have an iPhone you're probably deep into the Apple ecosystem and migrating to another platform is painful.

Money spent on apps you don't use anymore may be "sunk costs". Likewise, money spent on apps with an equivalent, free alternative on Android.

Resistance due to money (and effort) that would need to be spent to migrate to Android is not the sunk cost fallacy.

Technically, you can on an iPhone too, just not for free and not anywhere near as conveniently. There were various tools in circulation while there were no decent Jailbreaks. One that springs to mind was iReSign - according to its github page it's for re-signing app bundles with enterprise keys, but that's not what it was used for back then. People captured the .ipa files and signed them with developer keys and all sorts of unfortunate things happened after that.

TL;DR: "sideloading" for iOS = Free: no. Convenient: no. Possible: yes. Out of reach of most people: absolutely yes.

Uh? I'm not sure I understand your question. The argument doesn't apply because we're talking about the quality of the phone, not the generic freedom of its users. Of course the users are free to use a different phone. Actually, they might be forced to because the phone they bought will refuse to do what they ask it to. Which sucks.

Because the former requires replacing everthing else on the phone and the phone itself, whereas the latter, as far as I can tell, has no negative effects beyond the sideloaded APK possibly being malicious, ie no negative effects artificially imposed by the phone maker.

Personally, it's a bit like if I purchased a Mercedes but found that I could only drive it on certain pre-approved roads, subject to varying partnerships and licensing agreements. Someone telling me, "you can just buy a scooter" seems predicated on the assertion that they both belong in the same category of "means of transportation," but ignores the fact that they operate very differently in several ways. It also ignores the fact that I've paid for the Mercedes (and possibly invested time and money into skills and tools to repair it), and can't necessarily recoup those costs.

Fundamentally, it ignores whether freedom of movement should be infringed in such a way. One can currently sideload an APK on Android, but what's stopping Google from taking the same hard line as Apple?

Note: I am using the hyperbolic analogy above for rhetorical reasons; I don't think Android phones are perfectly analogous to a scooter. We use Android at work precisely because of Apple's lockdowns, and while I actually like the OS well enough I think I would find it frustrating on a personal phone.

The message you're replying to argues that a car that refuses to go on certain roads is exactly equivalent to a car that does, because its owners are free to buy the other car. This is a complete non-sequitur, and I am surprised someone is debating it seriously.

Cars have less built in switching costs than phones. You can only have one phone at a time and there is an entire ecosystem of services and apps are carried forward when you buy a new one.

A better metaphor might be renting a home. Imagine if you could only fill it with furniture and appliances that have been approved, and you can only park certain types of cars in the garage. You could always move, but then you have to buy new everything.

You don't have to "jailbreak" your Android because it wasnt in jail to begin with. Sideloading works straight out of the box.

You do need to turn off signature checking in the security settings, so not completely out of the box.

Given that the application store can be changed to blacklist a certain app, it is not unlikely that the next step is similar changes to the apk installer.

It should also be noted that there are no guarantees that signature checking is optional in all future builds of Android. While there are differences between the iPhone and Android business models, they should also not be overstated. My personal guess is that they will drift closer over time rather than farther apart.

You can side load on iOS - quit spreading misinformation

Care to provide a URL?

Or well, I looked it up and this is 1 way: https://jilaxzone.com/2020/04/20/complete-guide-how-to-sidel...

It's a hacky workaround that needs "maintenance" every 7 days, but I guess you can call it "You can side load on iOS"

Use altstore - it doesn't require jailbreak or maintenance. It autorenews your certs for you and you can even add alternate store sources to increase the apps available in the store.

I have a bunch of apps sideloaded and they work great.

Regardless, the point is you can sideload.

They should GPL the app. Play the PGP card and print the source in a book.

That would not help iOS users.

How does that apply to all other economic Sanctions? Like the sanctions on Cuba? If Cuba made a product that can arguably "enable free speech", would it be able to bypass sanctions?

We’re not banning all trade with a particular national, we’re banning a particular app from a nation we import more from (in terms of dollars as of 2019) than any other nation.

This kind of unilateral decision strikes me as short sighted and more politically motivated than anything.

Not all sanctions ban all trade, and a lot of them are targetted at a whole nation. And they are always politically motivated.

Now I have no clue if this particular sanction is warrented, or if it'll have negative impact, etc. So maybe it is short cited, maybe it's not. I'm just saying apart from the higher profiles being sanctioned here, this seems similar to a lot of other sanctions.

Can you name some examples of other sanctions it’s similar to?

For example, ZIMBABWE MINING DEVELOPMENT CORPORATION is sanctioned by the US, so it cannot participate in business transactions with any American company. Another one is Petróleos de Venezuela, S.A. an oil company from Venezuela.

You can read more about it here: https://www.investopedia.com/financial-edge/0410/countries-s...

The important bit is this:

> The U.S. sanctions countries that sponsor terrorism or perpetrate human rights violations on their people. The U.S. can sanction an entire nation or specific individuals or entities within that nation.

Good points. It's crazy the level of power I'm learning our executive branch has... Government is dangerous without checks and balances.

Much of government was designed with expectations of certain norms being followed that are now being violated. There are a lot of checks and balances (e.g. impeachment) that could be executed if a branch of the government was willing to cooperate.

Checks and balances all break down in the presence of ideologically aligned parties. Its a miracle its lasted this long, but it was inevitable.

> There is an opinion, that parties in free countries are useful checks upon the administration of the Government, and serve to keep alive the spirit of Liberty. This within certain limits is probably true; and in Governments of a Monarchical cast, Patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And, there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

https://en.wikisource.org/wiki/Washington%27s_Farewell_Addre...

That test (strict scrutiny) is applied by a court reviewing the action; US courts generally don't provide advisory opinions.

> Maybe they are CCP surveillance apps, but that needs be shown in court, not merely asserted.

If TikTok sued the US government under this theory, the government might need to make the argument in court to defend the lawsuit. There’s no requirement for the government to preemptively make a showing in court before it does everything.

Why would that not be abused as a means of political oppression? You could just sue your opponents and it would be guilty until proven innocent.

Suing and the associated guilty until proven innocent threat absolutely are abused in politics and in every day life.

It's also worth noting that at least for TikTok, its audience is young and left leaning. It is wildly popular with young people. It was where individuals organized buying up tickets to Trump rallies to inflate expectations during the pandemic [1], something which is known to have angered Trump.

Something as targeted as this ban seems like Trump deplatforming his critics under the excuse of national security. Plus, it's happening right before the election.

[1] https://www.nytimes.com/2020/06/21/style/tiktok-trump-rally-...

As apps become more and more integrated part of people’s live and livelihood, it becomes very pressing to have collective voice of app users across the globe to deal with arbitrary bullies from governments ...

I dont think you have to show that in court if its national interest then all you need is congressional approval no? You cant have a court hearing on intelligence information or am i missing sonething?

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