
TikTok Inc. vs. U.S. Department of Commerce - tempsy
https://www.courtlistener.com/docket/17472173/1/tiktok-inc-v-us-department-of-commerce/
======
monkeypizza
The way CCP influence works is through a legal requirement for firms to allow
or establish internal CCP units inside their company, which are then
officially recognized and connected to the CCP. Since this is an alternate
method for the company to interact with officials, through their own party
member staff, it can become basically your company's representative with the
CCP.

The thing is though, the unit members are also still your employees with
access to internal information. Since they serve two masters, the company can
be tempted to elevate their status internally to improve how they represent
the CCP on the other side. And the opposite can happen - employees can be
hired with high CCP ranks so that when they join the unit their influence for
the company will be stronger.

"One senior executive whose company was represented at the meeting told
Reuters some companies were under “political pressure” to revise the terms of
their joint ventures with state-owned partners to allow the party final say
over business operations and investment decisions."

Information on how this actually works is scarce since relative to the US
there is much weaker rule of law/discovery, and fewer independent journalists,
considering how tightly China controls and polices which journalists are
allowed in and what they write about.

"Companies in China, including foreign firms, are required by law to establish
a party organization, a rule that had long been regarded by many executives as
more symbolic than anything to worry about."

[https://www.reuters.com/article/us-china-congress-
companies-...](https://www.reuters.com/article/us-china-congress-companies-
idUSKCN1B40JU)

~~~
AsyncAwait
All this overlooks one simple principle. A democratic society should be held
to a higher standard than an authoritarian one.

As an example, we let the guilty go because of lack of evidence, where
authoritarian regimes don't.

After 9/11, there was a lot of reporting about the NYPD and others profiling
Muslims without any reason.

As someone from Europe, it seems to me like the U.S. "exports democracy" all
around the world, with often terrible results, without ever stopping to
examine whether its own is still holding and if it really can be held as an
example for the world to emulate.

You don't punish an entity simply for where their founders were born. Not in a
democracy anyway. If there's credible evidence to suggest TikTok is doing
something nefarious, we can have a discussion, but until then it should not be
banned.

You don't start torturing, just because you want someone to be able to blame
and fast. You don't block markets to someone because someone else on the same
land mass pissed you off.

It may seem "unfair" because the CCP has blocked many Western platforms, but
you don't have values unless you're willing to uphold them in the most
difficult of situations.

~~~
xxpor
We don't export democracy, we export capitalism.

~~~
sangnoir
How many non-capitalist countries did the US invade/occupy/destabilize in the
last 30 years?

~~~
Supermancho
What is your point? I'm asking a serious question. I really don't understand
how this relates to the GP.

I think the distinction between "Capitalism" as a philosophy and "US
Capitalism" (ie economic ties to the US) is being confused here.

~~~
sangnoir
My point is you cannot export capitalism to a country that already has it, so
it has to be something else.

~~~
Supermancho
I agree. More like exporting a debt economy, which necessarily has to be
capitalist at some level.

------
nxc18
I wish people would take some time to actually learn about China as it exists
today and not how the West imagined it in 2003. The discourse here and in
other places (like Reddit) has been of absolute garbage quality. Even in this
thread there have been calls for the US to ignore the rule of law and have
kangaroo courts that always side with the government, complete
misunderstanding of why India banned TikTok (retaliatory blow in a border
dispute), and claims that it is ironic that Facebook/Google is banned in
China. That last one represents shockingly poor understanding of recent
events. For example, western companies choose not to operate in the Chinese
market: [https://theintercept.com/collections/google-dragonfly-
china/](https://theintercept.com/collections/google-dragonfly-china/)

Citizens in a democracy have rights, but they also have a responsibility to
try to understand their system of government and the evil forces they contend
with.

If the US wants to ban TikTok (maybe it is in fact in our interest to do so,
although I personally disagree), there is a due process. Just like Trump has
the legal right to end DACA, the courts have upheld that there is a proper way
to do that, and it doesn’t involve being capricious:
[https://www.npr.org/2020/06/18/829858289/supreme-court-
uphol...](https://www.npr.org/2020/06/18/829858289/supreme-court-upholds-daca-
in-blow-to-trump-administration)

There is lots of good coverage of China available in the West, and for folks
who are interested, here’s a recent article to start with:
[https://www.google.com/url?sa=t&source=web&cd=&ved=2ahUKEwic...](https://www.google.com/url?sa=t&source=web&cd=&ved=2ahUKEwicrOjIwrTrAhX0On0KHcKCB84QFjAAegQIAhAB&url=https%3A%2F%2Fwww.economist.com%2Fbriefing%2F2020%2F08%2F15%2Fxi-
jinping-is-trying-to-remake-the-chinese-
economy&usg=AOvVaw1bH7Oc_dKecAWrbNI3lqPP)

~~~
vorpalhex
And this is actually the due process way of banning TikTok and this is within
presidential authority - even if you don't like it. If you have an issue with
this being the process, it is fully and entirely with congress who deferred
this power to the executive.

Legal Eagle has a good explainer on this: [video warning]
[https://www.youtube.com/watch?v=BnjhHPU-
uRw](https://www.youtube.com/watch?v=BnjhHPU-uRw)

~~~
nxc18
Thanks for that video.

Still, I don’t know if wild threats out of the blue after a 2 year CFIUS
investigation counts as due process. Just because power is delegated to the
executive doesn’t mean the executive can wield that power with impunity, see
recent Supreme Court decisions.

The legal eagle video does raise additional concerns that aren’t being covered
here, like first amendment issues. The timing makes it seem like concerns
about TikTok are more about anti-Trump content than actual national security
concern.

The Legal Eagle video is also very clear that the IEEPA explicitly restricts
power over telecommunications platforms, which clearly seems to apply to
TikTok. (17 minutes in)

Watching that video makes me think TikTok has an even stronger case than is
being widely reported.

~~~
kovek
> The timing makes it seem like concerns about TikTok are more about anti-
> Trump content than actual national security concern.

Before talks of a ban there were discussions about the TikTok app possibly
uploading users’ random smartphone gallery content (photos, videos).. That’s
technically possible. I don’t know how the government would enforce the app
not to have this sort of behaviour.

------
pastaking
Does anyone know when we will likely hear the result of this trial?

------
moneywoes
Is it not ironic that Facebook is unable to sue the Chinese government behind
their ban?

~~~
pphysch
Facebook _willingly_ pulled out of China because it was _not willing_ to
comply with Chinese laws surrounding disinformation and hate speech.

It is not even a remotely similar situation.

~~~
usaar333
Disinformation being defined as "disagreeing with official government
statements"

~~~
Spivak
You can hold both of these opinions.

\- If you wish to do business in a country you must follow their laws.

\- The laws of a country are unjust, oppressive and the government that
enacted them is corrupt.

~~~
seanmcdirmid
China is not a "rule of law" country. Their constitution has a strong
guarantee for freedom of speech, for example, but this is meaningless because
they don't have an independent judiciary. They do have "rule by law", which
basically mean law is used as a means for the officials to accomplish whatever
goals they are interested in (vs. rule of law where laws are interpreted
independently of goals).

> The laws of a country are unjust, oppressive and the government that enacted
> them is corrupt.

The laws of a country could be completely just and unoppressive, but it
doesn't really matter unless the judiciary has the will and power to use them
in the people's best interest.

------
RubberShoes
Someone worked hard through the weekend

------
diebeforei485
Yesterday the Wall Street Journal reported that Mark Zuckerberg was spreading
FUD in Washington about TikTok: [https://www.wsj.com/articles/facebook-ceo-
mark-zuckerberg-st...](https://www.wsj.com/articles/facebook-ceo-mark-
zuckerberg-stoked-washingtons-fears-about-tiktok-11598223133) (soft paywall)

TikTok is an excellent app with great content and an algorithm that works like
magic based on your revealed (not stated) preferences. I hope the Microsoft
deal comes through without the government demanding a cut.

------
itsbits
Weird how US laws are made. App was banned in some non-cyber laws countries
like India, still Tiktok unable to challenge them. But US here is getting
rebuted.

~~~
hn_check
How is this weird? A country of law and order and checks and balances
_rightly_ allows orders like this to be contested.

India, used as the example, has a very flawed democracy and a high degree of
corruption.

EDIT: LOL, downvoted to oblivion by the HN India contingent. As provided
elsewhere, India's democratic and corruption rankings are mediocre.

~~~
blocked_again
> India, used as the example, has a very flawed democracy

How come?

~~~
hn_check
[https://www.eiu.com/topic/democracy-
index](https://www.eiu.com/topic/democracy-index)

[https://www.transparency.org/en/cpi](https://www.transparency.org/en/cpi)

India is no benchmark. There are far worse countries, but if someone cites
India's actions as an example, it falls flat.

~~~
blocked_again
I was asking why India has a flawed democracy.

I went through the list. India is ranked around 50.

If you ignore all the cute european countries like Finland, Denmark,
Liechtenstein etc from the top, which doesn't even qualify as a big city in
India, I would say India is doing pretty good for a country where 1/6
population of the world live.

~~~
dragonwriter
> I would say India is doing pretty good for a country where 1/6 population of
> the world live.

Sure, India is by far the most democratic country of its own size or larger.

But that literally just means “not as bad as China”. It's kind of like if the
Republic of Korea (which _could_ support stronger claims, to be sure) was said
to be “pretty good for a country located on the Korean peninsula”—it is true,
but doesn't say a lot.

~~~
blocked_again
Sure. A democracy index where you have countries ranging from less than a
million population to greater than 1 billion population also doesn't say a lot
:)

~~~
dragonwriter
I think it says quite a lot.

It's possible that one of the things it says is that _democracy (at least the
values measured by the index) is not scale independent, and more specifically
democratic values are inherently incompatible with large states_. I don't
think the second part is actually true, at least with current technology and
at the scales involved, but that seems to be the “defense” of India here.

------
Hydraulix989
Why would any American court side not be partial to the US here? They're
literally suing the US in its own courthouse.

~~~
repiret
One of the great things about the US legal system (although it's not uniquely
American whatsoever) is that it's perfectly possible to prevail against the
government in court, and happens on a regular basis. It is especially
noteworthy that there is no single person or organization that has authority
over both the federal court system and the Department of Commerce.

~~~
Hydraulix989
Even if the counterparty is a foreign actor (with some demonstrable ties to a
foreign government)?

~~~
kube-system
Yes

------
abc-xyz
> ByteDance has had a party committee since 2017 and is headed by CCP
> secretary and company editor-in-chief Zhang Fuping (張輔評), reported Human
> Rights Watch. Members of the committee hold regular gatherings at which they
> study speeches by Chinese Chairman Xi Jinping (習近平) and "pledge to follow
> the party in technological innovation."

> In addition, ByteDance on April 25, 2019, signed a strategic cooperation
> agreement with the Ministry of Public Security's Press and Publicity Bureau
> (公安部新聞宣傳局) in Beijing. The agreement was billed as "aiming to give full play
> to the professional technology and platform advantages of Toutiao and Tiktok
> in big data analysis," strengthen the creation and production of "public
> security new media works," boost "network influence and online discourse
> power," and enhance "public security propaganda, guidance, influence, and
> credibility," among other aspects.

~~~
lxe
What's the source? I can't find these quotes in the complaint document.

~~~
weego
It appears to be from here. I have nowhere near enough knowledge to have an
opinion on its credibility though

[https://www.taiwannews.com.tw/en/news/3982027](https://www.taiwannews.com.tw/en/news/3982027)

------
cletus
So two things should be absolutely clear here:

1\. Chinese companies are extensions of the state in a way not analagous to
anything in the developed world. This creates a valid national security
interest in giving Chinese companies access to telecoms (Huawai), personal
information (TikTok) and many other areas; and

2\. There is no huge market opportunity in China for Western companies so
these companies should stop pressuring politicians to look the other way on
China (and, arguably in some cases, to kowtow to beijing). The Chinese
government will ensure no Western company "wins" against homegrown companies,
all the while dangling that carrot of 1B customers and handout out enough
crumbs to keep interest.

As for this lawsuit, I'm no lawyer so can't speak to its merit but consider
this: trade agreements (WTO/GATT) call for reciprocity. In trade terms, I'd
say the US is well within its right to deny access to the US market to Chinese
companies in the same way US companies are denied access to the Chinese
market.

Enforcement of censorship in China is painted as just obeying local laws. Ok,
but what's to stop the US arguing that they require companies operating within
its borders not to enable spying on citizens, religious persecution and other
human rights violations?

~~~
horsemessiah
Could the U.S. govt not subpoena a U.S. company for information, giving them
the same power people are worried about China having?

~~~
seanmcdirmid
They can, but since they have to go through the courts, the process is much
more difficult and there are more opportunities for someone (like the media)
to find out about it.

It isn't binary, the powers would never be the same even if they sound
similar.

~~~
sudosysgen
Do the FISA courts or National Security Letters count as an open court with
opportunity for the media to find out about it?

What if the US State Department uses PRISM or a related program instead?

~~~
seanmcdirmid
They are still courts. They are still presided by judges, you can't just get
approval without justification or a paper trail. They still leak like crazy to
the media.

And again, it isn't binary. You can't say the USA and China's systems are just
as bad, one is much worse than the other even if neither is perfect or even
good.

~~~
sudosysgen
You completely ignored my second point.

As for FISA court, the government is allowed to destroy the paper trail and
the public is not allowed to know the justification, so it might as well not
exist.

Also, the NSA spying on US citizens illegally and covertly without a warrant
is worse than a public Chinese courts, undeniably.

~~~
seanmcdirmid
Your point that fisa courts, which are considered an unnecessary western
luxury in the Chinese system and have restricted usage in the USA system
somehow make the American system as bad as China? And then you mention PRISM,
a system that takes and stores photographs of passports (for all I can find on
the web, you don’t bother to provide your own links), as somehow worse or as
worse as the Chinese system?

No, you are just incorrect here. You can’t really compare a country that
doesn’t even subscribe to the ideal of rule of law as being somehow equivalent
to one that does and has actual enshrined rights and an independent judiciary
to back them up. Yes, the USA could be a lot better, but it doesn’t have much
in common with a characteristically illiberal system.

~~~
sudosysgen
> _Your point that fisa courts, which are considered an unnecessary western
> luxury in the Chinese system and have restricted usage in the USA system
> somehow make the American system as bad as China?_

Yup, restricted as in asking multiple companies to give away almost all of
their data. A ton of restraint, limiting yourself to the very minimum of data,
such as oh I don't know the entirety of phone call logs for every single user?
That makes it functionally as bad as China.

As for PRISM, I think you missed the mark almost entirely. Glenn Greenwald,
after contact with Snowden, gave a description that goes something like this :

" _Also according to The Guardian 's Glenn Greenwald even low-level NSA
analysts are allowed to search and listen to the communications of Americans
and other people without court approval and supervision. Greenwald said low
level Analysts can, via systems like PRISM, "listen to whatever emails they
want, whatever telephone calls, browsing histories, Microsoft Word
documents.[30] And it's all done with no need to go to a court, with no need
to even get supervisor approval on the part of the analyst_"

Does that seem like a system that takes and stores photographs of passports?
This is literally the #1 Google result for PRISM, by the way.

> _No, you are just incorrect here. You can’t really compare a country that
> doesn’t even subscribe to the ideal of rule of law as being somehow
> equivalent to one that does and has actual enshrined rights and an
> independent judiciary to back them up. Yes, the USA could be a lot better,
> but it doesn’t have much in common with a characteristically illiberal
> system._

Something said very confidently for someone that doesn't know how FISA courts
operate or anything about the PRISM program. I don't think "* low-level NSA
analysts are allowed to search and listen to the communications of Americans
and other people without court approval and supervision*" reflects "enshrined
rights and an independent judiciary to back them up". But calling dragnet
spying without a warrant characteristically liberal is an interesting take.

All in all, you seem very willing to defend the US Government without having
the most basic knowledge of their abuse. It is impossible to evaluate the
Chinese vs US practices in reality if you have a stereotypical view of one and
an at best theoretical view of the other.

As for the source, you'll find it quite obvious :
[https://en.wikipedia.org/wiki/PRISM_(surveillance_program)#E...](https://en.wikipedia.org/wiki/PRISM_\(surveillance_program\)#Extent_of_the_program)

