
TikTok to challenge U.S. order banning transactions with the video app - pseudolus
https://www.reuters.com/article/us-usa-tiktok-trump-exclusive/exclusive-tiktok-to-challenge-u-s-order-banning-transactions-with-the-video-app-idUSKBN25H2QG
======
three_seagrass
Of course they are.

CFIUS is the governing body who decides which foreign investments are a threat
to the U.S., not the president, and they have been investigating TikTok for
two years without finding anything despite the recent executive order. It
makes the executive order look more like political headline bait than having
actual teeth, especially considering IEEPA prohibits executive power from
being used to block speech or media.

~~~
m0zg
I recall people were quite willing to "block speech or media" when Russian
operatives were organizing anti-Trump protests on Facebook in 2016. What has
changed since?

~~~
excalibur
> Russian operatives were organizing anti-Trump protests

That seems unlikely. Source?

~~~
kube-system
If I recall what I read in the Mueller report correctly, Russia sponsored
protests on both sides of the political spectrum, reportedly focusing on
topics they thought would increase racial tensions

~~~
m0zg
> sponsored

Why the past tense? Seems to me like someone is still "sponsoring" racial
tensions in the US. This has been in the works for quite some time, and it's
paying dividends now:
[https://www.youtube.com/watch?v=IQPsKvG6WMI](https://www.youtube.com/watch?v=IQPsKvG6WMI).
The entirety of the US media apparatus, as well as the entirety of the
political establishment is happy to play along.

~~~
kube-system
> Why the past tense?

Because the Mueller report did not contain any information from the future as
far as I am aware. :)

But yes, I don’t think we have any reason to believe that Russia is acting any
differently today.

------
kevin_thibedeau
Maybe Congress could get off its ass and pass some data privacy laws first?

~~~
kn0where
No, no, we can’t have that because then the US government and American
companies couldn’t siphon all the data up for nefarious, I mean patriotic,
purposes.

~~~
vmception
Exactly, if we fix that how are we going to deflect everything accurate and
bad by yelling “whataboutism” at anyone with a brain

------
wavesounds
American companies are blocked from doing business in China either by the
great firewall, having to transfer intellectual property, having to give the
government unfettered access to user data or by having to have Chinese
ownership. Bytedance has no legs to stand on here.

~~~
mdoms
Do you think America becoming more like China is a desirable outcome?

~~~
JumpCrisscross
> _Do you think America becoming more like China is a desirable outcome?_

Last I checked, American companies can’t challenge Beijing in court the way
Tik Tok is here.

~~~
colejohnson66
So because we’re better in one or two or so ways, we can’t say that the bad
things are comparable?

~~~
JumpCrisscross
> _because we’re better in one or two or so ways, we can’t say that the bad
> things are comparable_

The existence of an independent judiciary makes the two incomparable. The
American executive is constrained in his actions by the law. That gives the
landscape a degree of predictability (albeit less than I’d like).

Comparing this to China, where the law begins and ends with the party’s whims,
is a slippery slope fallacy.

~~~
sudosysgen
Make no mistake, the US judiciary is also fully captured by the two parties.
Just because one person doesn't have total power means nothing, Xi Jinping
doesn't have total power either.

But the the two US parties and sometimes even one party alone can totally make
anything legal. The judiciary is independent only instantenaousely, not long
term.

Mind you, this is because the US political system is not made to deal with
parties. When you add a duopoly of power every single check and balance of the
US political system breaks down.

That, makes the two comparable.

~~~
JumpCrisscross
> _Just because one person doesn 't have total power means nothing_

Straw man. Power is always several amongst elites. The question is one of
degree and checks. Xi’s China has no rule of law. In America, no person nor
public servant is reliably above the law.

Moreover, rulers can be challenged in fair courts. The U.S. government loses
in court. Xi never loses in a CCP court.

> _When you add a duopoly of power every single check and balance of the US
> political system breaks down_

Judges are not loyal to their parties. Almost every nominee has prominent
cases where they rule against their party ( _e.g._ Gorsuch on gay rights).

~~~
sudosysgen
> _Straw man. Power is always several amongst elites. The question is one of
> degree and checks. Xi’s China has no rule of law. In America, no person nor
> public servant is reliably above the law._

> _Moreover, rulers can be challenged in fair courts. The U.S. government
> loses in court. Xi never loses in a CCP court._

>>>>>>>>>>>> _one person doesn 't have total power means nothing_
>>>>>>>>>>Straw man >>>>>>>>>>no person or public servant is reliably above
the law

First, I don't think you can call my argument a straw man then restate the
argument I was arguing in the very same sentence.

Second, Xi Jinping can easily lose in a CCP court, he just has to go against
the will of the party members of the CCP enough. Xi Jinping is below the
Politburo as well as the National People's Congress. He simply is kindly
advised not to act in ways that would lead to his removal, just as other
Chinese presidents often had their hands tied. He is not reliably above the
law.

Also, the Department of Justice in the US de facto affirmed that the US
president is above federal law.

> Moreover, rulers can be challenged in fair courts. The U.S. government loses
> in court. Xi never loses in a CCP court.

This absurd conflation. Xi <=!=> the US government. An apt comparison is to
claim that the Chinese State never loses in court.

Now, to the core of the claim, the US State cannot lose in courts, because the
US State _is_ the courts.

More so, _the US government can only ever, ever be sued with its agreement_.
Indeed, as Wikipedia puts it:

> _In the United States, the federal government has sovereign immunity and may
> not be sued unless it has waived its immunity or consented to suit.[7] The
> United States as a sovereign is immune from suit unless it unequivocally
> consents to being sued.[8] The United States Supreme Court in Price v.
> United States observed: "It is an axiom of our jurisprudence. The government
> is not liable to suit unless it consents thereto, and its liability in suit
> cannot be extended beyond the plain language of the statute authorizing
> it."[9]_

[https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...](https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States)

In conclusion, the U.S. government only ever loses to a non-state entity in
court when it consents to, and even then liability is severely restrained.

This is, ironically, exactly the same standard as in China. The Chinese Basic
Law forbids the state from legal liability unless it specifically agrees to it
and states it's liability, which is stated under the Administative Litigation
Law :
[https://en.wikipedia.org/wiki/Administrative_law_in_China#Ad...](https://en.wikipedia.org/wiki/Administrative_law_in_China#Administrative_litigation)

In practice, this means that you can sue the Chinese State, the CCP, Xi
Jinping, or any other administrative body in China, and win, as long as the
Chinese State agrees to the litigation. So, yes, Xi Jinping's government can,
and _does_ lose in Chinese courts (which technically are not affiliated with
the CCP or any party, in theory). In fact, there have been many cases of such
loses, which can be easily googled.

However, if the government ever loses, _both in China and the US!_ , under the
doctrine of Sovereign Immunity, they can simply change the law and absolve
themselves of liability.

>Judges are not loyal to their parties. Almost every nominee has prominent
cases where they rule against their party (e.g. Gorsuch on gay rights).

Cases of Federal judges ruling against their parties are few and far between,
judges nominated by the same party vote together the vast majority of the
time, especially Republican judges. As for the cases where they _do_ , they
almost always differ on points of heterogeneity in their party. Which you'd be
surprised to hear, is also the case in China - there is massive heterogeneity
within the party and judges sometimes go against the dominant position and are
protected because are amongst a large faction.

In conclusion, there is still no real difference that can discerned.

~~~
JumpCrisscross
> _the Department of Justice in the US de facto affirmed that the US president
> is above federal law_

Incorrect. DoJ have an administrative rule that a _sitting_ President cannot
be charged by them. As for official acts by the government, they’re subject to
judicial review. No analogous process exists in China.

> _the US State cannot lose in courts, because the US State is the courts_

This betrays ignorance of the American Constitutional system. The U.S.
government _routinely_ loses in court. Prior rulings are overturned. The
legislature is checked. The President stayed.

> _under the doctrine of Sovereign Immunity_

Sovereign immunity is a courtesy granted to other nations under common law. It
does not exist _per se_ and makes no sense to be invoked with respect to a
state without the rule of law.

With respect to American courts, the U.S. government has broadly consented to
being sued by virtue of the Constitution. To claim sovereign immunity, a
creature of the law, limits the legal system is to misunderstand one of the
basic tenets of the system.

~~~
sudosysgen
> _Incorrect. DoJ have an administrative rule that a sitting President cannot
> be charged by them. As for official acts by the government, they’re subject
> to judicial review. No analogous process exists in China._

Judicial review is simply enforcement of laws that are found to have primacy.
Chinese retired officials have been charged, found guilty, and found liable
hundreds of times. As for the analogous process of "judicial review" in China,
it's called... Judicial Review. It has many flaws in practice due to
partisanship of the judges, they are all also present in the US. The procedure
for Chinese judicial review is codified under the Administrative Procedure Law
I mentioned in my previous comment. The main difference is that Chinese
judicial review applies only to acts and not to laws, because the Chinese
constitution mandates primacy of the National People's Congress, therefore any
power to strike laws would ironically enough be unconstitutional.

Moreover, former officials frequently get sued in China for crimes performed
during their tenure.

>This betrays ignorance of the American Constitutional system. The U.S.
government routinely loses in court. Prior rulings are overturned. The
legislature is checked. The President stayed.

The _legislative is checked, but not the State_. I don't understand why you
keep confusing the U.S. Government sometimes with the US legislative branch
and sometimes with the US executive branch. _Courts are part of the State_.
This should be evident after an analysis of the US Constitution, not just a
cursory reading, and is indeed the interpretation taken by the Supreme Court
as well as the basis for Sovereign immunity. See the last paragraph pf the
next quotation of ever-helpful Wikipedia.

> _Sovereign immunity is a courtesy granted to other nations under common law.
> It does not exist per se_

Incorrect :

 _In the United States, the federal government has sovereign immunity and may
not be sued unless it has waived its immunity or consented to suit.[7] The
United States as a sovereign is immune from suit unless it unequivocally
consents to being sued.[8] The United States Supreme Court in Price v. United
States observed: "It is an axiom of our jurisprudence. The government is not
liable to suit unless it consents thereto, and its liability in suit cannot be
extended beyond the plain language of the statute authorizing it."[9]

The principle was not mentioned in the original United States Constitution.
The courts have recognized it both as a principle that was inherited from
English common law, and as a practical, logical inference (that the government
cannot be compelled by the courts because it is the power of the government
that creates the courts in the first place).[10] _

[https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...](https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States)

You seem to be confusing Sovereign Immunity, which only applies to the Federal
and Local governments of the United States, with State Immunity, which is much
weaker than Sovereign Immunity :
[https://en.wikipedia.org/wiki/State_immunity](https://en.wikipedia.org/wiki/State_immunity)

> makes no sense to be invoked with respect to a state without the rule of law

This is a circular argument as it the conclusion is also a premise.

>With respect to American courts, the U.S. government has broadly consented to
being sued by virtue of the Constitution. To claim sovereign immunity, a
creature of the law, limits the legal system is to misunderstand one of the
basic tenets of the system.

Incorrect. See, The Eleventh Amendment:
[https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_Unit...](https://en.wikipedia.org/wiki/Eleventh_Amendment_to_the_United_States_Constitution)

~~~
JumpCrisscross
> _the Chinese constitution mandates primacy of the National People 's
> Congress, therefore any power to strike laws would ironically enough be
> unconstitutional_

This is the core difference. No single body can exercise the U.S. state’s
power with such primacy.

There are a lot of other errors in this comment, but your sources should are
good and are worth reading together with their references.

~~~
sudosysgen
>This is the core difference. No single body can exercise the U.S. state’s
power with such primacy.

Incorrect. A ratifying convention of the states has the power to amend the US
constitution.

If you believe that I made a factual error, it is reasonable to point it out
with quoted or at least sourced references.

~~~
kelnos
> _A ratifying convention of the states has the power to amend the US
> constitution._

No, it does not. Article V allows two-thirds of the state to call for a
convention of the states to be assembled to _propose_ amendments; three-
fourths of the state legislatures, or three-fourths of state conventions
assembled for the purpose, must ratify any proposals made.

So in the current setup, 67 legislative bodies are required to call for the
assembly of a single body that can write up amendment proposals, but then 75
legislative bodies (or 75 conventions) then have to vote to ratify those
proposals.

That is a far cry from a single body ratifying amendments.

The full text of Article V, for reference (emphasis mine):

> The Congress, whenever two thirds of both houses shall deem it necessary,
> shall propose amendments to this Constitution, or, on the application of the
> legislatures of two thirds of the several states, _shall call a convention
> for proposing amendments_ , which, in either case, shall be valid to all
> intents and purposes, as part of this Constitution, _when ratified by the
> legislatures of three fourths of the several states, or by conventions in
> three fourths thereof_ , as the one or the other mode of ratification may be
> proposed by the Congress; provided that no amendment which may be made prior
> to the year one thousand eight hundred and eight shall in any manner affect
> the first and fourth clauses in the ninth section of the first article; and
> that no state, without its consent, shall be deprived of its equal suffrage
> in the Senate.

------
temporalparts
I found YouTube's Legal Eagle's analysis of the legality of the ban
interesting. Would be interesting to hear HN's take:

[https://youtu.be/BnjhHPU-uRw](https://youtu.be/BnjhHPU-uRw)

~~~
R0b0t1
The president has extremely broad powers. In general I think it safe to assume
he can do these things (sans demanding a cut of the proceeds). Typically these
powers are granted during emergencies, but again, the president seems to be
able to declare those whenever he wants.

It's just before now they were wielded with restraint and mostly ignored. This
should be a wake up call.

Part of the issue is there is now a real discussion over whether or not this
is allowed. In a previous United States that this discussion would have
existed would have been ludicrous. The basic premise of the IEEPA seems valid,
but there seems to be very little effective check by congress.

------
dmitrygr
Still trying to exploit the assimetry I see.

When did the last American company manage to challenge being banned or forced
to take on a local "slightly more than equal" partner in china?

------
daodedickinson
I feel there might be disparate impacts between the reactions from CCP threats
and USFG threats...

------
yalogin
It feels like they don’t need to take any action, the danger has probably
passed. Trump extended the window to 90 days which will be after the election.
He achieved what he wanted, to appear tough on China and so if history is any
indication about how he deals with China, this will be ignored and things will
be go back to normal without any issues for China. The president is all talk
and no action usually.

------
Integrity
Facebook's Instagram came out with "reels", essentially a clone of Tik Tok.
And isn't that act a complaint by us companies against China?

------
wombatmobile
How would Americans be better off with TikTok in Microsoft's hands?

THE MICROSOFT POLICE STATE: MASS SURVEILLANCE, FACIAL RECOGNITION, AND THE
AZURE CLOUD [https://theintercept.com/2020/07/14/microsoft-police-
state-m...](https://theintercept.com/2020/07/14/microsoft-police-state-mass-
surveillance-facial-recognition/)

~~~
kube-system
The US government’s concern with ByteDance is, and always has been, a question
of national security, not privacy.

But for that matter, privacy laws are stronger in the US too.

~~~
monadic2
Privacy _is_ a national security issue. Actively monitoring citizens,
privately and publicly, and smearing the data across the US and the rest of
the world is going to prove to be a massive national vulnerability in the long
run.

~~~
kube-system
Yes, it is well established that the data being collected by social media
platforms is ripe for abuse.

The question is: which regulators do the social media companies answer to?

Don’t forget that that national security includes other concerns outside of
your _personal_ privacy, for example:
[https://www.forbes.com/sites/andrewsolender/2020/05/18/repor...](https://www.forbes.com/sites/andrewsolender/2020/05/18/report-
beer-review-app-can-be-used-to-track-military-personnel-and-secret-military-
locations/#411b5e6b3106)

~~~
wombatmobile
> The question is: which regulators do the social media companies answer to?

That's not the question I posed, kube-system. I asked, "How would Americans be
better off with TikTok in Microsoft's hands?"

The issue you raise, about which regulators social media companies answer to,
dismisses the conflict of interest that occurs when those regulators' align
with the police departments that contract Microsoft to surveil citizens. When
that happens, are American citizens better off? Clearly not, when they are
being targeted by unconstitutional police actions, e.g. actions that violate
the first amendment.

~~~
kube-system
ByteDance’s policy for responding to law enforcement requests is the same as
Microsoft. Of all the domestic privacy issues you could have brought up, I
don’t think local law enforcement is a differentiating concern.

------
econcon
I wonder why there isn't a tinder like app where there are no photos but you
ask for a price to meet and when you pay that price, then it opens a
conversation channel where photos can be exchanged with single click and it's
on you to see if you wish to accept or decline the proposal.

There are tons of fake people on tinder, who never show up. Payment will act
as deterrent for these con people.

And dating app makes money as % of the transaction that occurs on the app.

And it never charges you without actually getting a "meeting" out of the app
so experience is fair.

And if women are looking to meet man, they can also initiate and offer to pay.

Tinder sucks you can pay for Tinder Gold but it doesn't guarantee even a
single date.

