DOJ Releases Its List Of 'Anarchy' Jurisdictions The President Thinks Should Be Blocked From Receiving Federal Funds

from the Pell-grants-no-longer-offered-to-Anarchy-State-University-students dept

The Trump Administration hasn't met a slope it isn't willing to grease up and go sliding down. There's not much united about the states at the moment and the President's lavish devotion to all things "law and order" is making things worse.

The insertion of federal officers into cities experiencing weeks and months of protests hasn't done much to reduce the adjacent violence that drew them there in the first place. Engaging in Gestapo-esque "disappearing" of protesters -- along with federal officer violence targeting journalists and observers -- has done nothing to return order to cities like Portland, Oregon.

Earlier this month, the Administration issued a memo threatening to cut off federal funding to cities the Administration doesn't like.

My Administration will not allow Federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones. To ensure that Federal funds are neither unduly wasted nor spent in a manner that directly violates our Government’s promise to protect life, liberty, and property, it is imperative that the Federal Government review the use of Federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities. It is also critical to ensure that Federal grants are used effectively, to safeguard taxpayer dollars entrusted to the Federal Government for the benefit of the American people.

Suddenly the Administration is very concerned about federal spending. Named in the memo were New York City, Seattle, Portland, and Washington DC. All of these have been targets of Trump's personal attacks via Twitter, where he's claimed the cities are being ruined by "radical left Democrats." The memo is transparently partisan. Nowhere in the memo -- which is directed to the DOJ and the Office of Management and Budget (OMB) -- does Trump call out cities in contested states vital to his reelection. Similar protests and/or law enforcement defunding are occurring in Minneapolis, Minnesota and Kenosha, Wisconsin, but neither city is mentioned in the memo.

The memo -- issued September 2nd -- gave the DOJ two weeks to designate "anarchist" cities unworthy of federal funding. The DOJ has responded, sparing Washington DC, but designating the other three cities mentioned in the memo as "anarchy jurisdictions."

The U.S. Department of Justice today identified the following three jurisdictions that have permitted violence and destruction of property to persist and have refused to undertake reasonable measures to counteract criminal activities: New York City; Portland, Oregon; and Seattle, Washington. The Department of Justice is continuing to work to identify jurisdictions that meet the criteria set out in the President’s Memorandum and will periodically update the list of selected jurisdictions as required therein.

So, what does it take to become an anarchy under Trump? Not much, apparently. Just an unwillingness to maintain the law enforcement status quo. The DOJ considers it "anarchy" to prevent police from "restoring order" or ordering them to abandon areas they lawfully have access to. (This refers to the temporary "autonomous zone" set up in Seattle by protesters.) These stipulations deal with judgment calls by city mayors during periods of intense civil unrest -- unrest prompted by previous police violence, something that's ignored completely by the memo and the DOJ.

But "anarchy" is also something as simple as police reform.

Whether a jurisdiction disempowers or defunds police departments.

Nobody's shutting down police departments. Taking police officers out of schools or routing mental health crisis calls to mental health professionals instead of cops isn't "disempowering." And if the funds aren't being used by law enforcement agencies to cover activities they're no longer being asked to perform, they should be routed to the agencies that are performing them. That's not "defunding." That's just funding.

And if the Attorney General can't find anything on the list to use to designate a city as "anarchist," he can always make something up.

Any other related factors the Attorney General deems appropriate.

So, anything could be used to trigger this review. Possibly even just being located in a state Trump doesn't think he can carry.

Right now, the memo only orders a "review" of existing funding. There are no laws on the books that allow the President to strip federal funding from cities he doesn't think lean right enough or are too mean to cops. Congress controls federal funding, not the Administration.

The slippery slope is, of course, a route to direct federal control of city and state-level policy making. Pass the "wrong" laws and your federal funds could be reduced or eliminated. If Congress somehow finds a way to make this legal by codifying pro-law enforcement requirements, the federal government will be the final arbiter of local lawmaking. This isn't the way it's supposed to work. And the Tenth Amendment is supposed to limit federal interloping like this. Even if a law is passed by Congress to make Trump's defunding plan "lawful," it probably won't be Constitutional. For an administration that leans so heavily on the phrase "rule of law," it sure seems to ignore rules and laws with alarming frequency.

Even if nothing happens past this point, the Administration will still be posting a periodic list of enemy cities and seeking some way to block them from receiving federal funds. And the selection process is transparently partisan, targeting only cities that have pushed back against Trump's heated rhetoric and his "offers" to deploy federal stormtroopers to handle local protests. This is more malignant ugliness from an administration that's served up plenty over the last four years.

Filed Under: anarchist jurisdictions, defund the police, doj, donald trump, fascism, new york city, partisanship, police, portland, protests, seattle, william barr

Trump's Campaign Is Engaged In Lawsuits All Over The Country To Try To Make Safe Voting More Difficult

from the self-interest-shouldn't-be-so-blindingly-apparent-y'all dept

Anyone still hoping for an orderly election and, if need be, a peaceful transition of power hasn't been paying attention to much that's happened over the past few months. As the presidential election approaches, everything is still in a disturbing state of flux. Multiple states have failed to flatten the COVID-19 curve, necessitating some walking back of earlier "everything's fine" pronouncements.

The safest way to vote may be from the comfort of your own home. But that option doesn't appeal to President Trump, his campaign, or the Republican National Committee. All have engaged in a lot of unhelpful -- if not actually deadly -- rhetoric against both at-home voting and the general use of any protective measures to prevent the spread of the virus.

It's not like "distance voting" is a novelty. Absentee voting happens all the time. Just because there will be more quasi-absentee votes to count during this election is no reason to believe voters at home will engage in widespread voter fraud. Voter fraud is almost nonexistent. Enough checks are in place to prevent most of it and there's very little evidence anyone has ever engaged in a massive conspiracy to rig a presidential election.

Since the Trump Campaign (and the president himself) don't have facts on their side, they've decided to lawyer up. Voter suppression has always been a thing, but these entities want it blessed by courts, if not actually codified.

President Donald Trump’s campaign and the Republican Party are devoting millions of dollars to wage a state-by-state legal battle against mail-in voting during the coronavirus pandemic, not only suing state officials but also intervening in cases where they aren’t a party to limit how Americans can vote from home.

BuzzFeed News identified at least 11 cases where the Trump campaign has asked judges for permission to intervene to defend state and local policies that voting rights advocates argue will make it harder for people to safely vote during the pandemic. That’s in addition to more than half a dozen lawsuits the campaign has filed with the Republican National Committee contesting efforts by Democratic governors and other state and local officials to expand mail-in voting.

Here are a few of the things Trump's campaign and the RNC are suing about. In one case, his campaign is trying to limit the number of ballot drop boxes available to voters. In another, they're trying to prevent the automatic mailing of ballots or ballot request forms to voters. And these entities aren't limiting themselves to trying to intercede in election-related lawsuits where they aren't a party. They're also suing states directly to prevent expansions of absentee or mail-in voting.

Whatever the reasons Trump's lawyers state in their court filings, the real reason behind this flurry of litigation is the Trump campaign believes more votes means more votes for Joe Biden.

Early data compiled by the United States Elections Project at the University of Florida show that in Florida, Pennsylvania, North Carolina, and Colorado, absentee ballot requests are up compared to previous election cycles, with registered Democrats outnumbering registered Republicans.

So, when Trump says something like this…

“My biggest risk is that we don’t win lawsuits,” Trump said at the time. “We have many lawsuits going all over. And if we don’t win those lawsuits, I think— I think it puts the election at risk.”

… he doesn't mean the election is at risk. He means his continued federal employment is at risk.

No one wants a fraudulent election. But that's the least likely outcome of expanded at-home voting. It does no good to argue we shouldn't do it this way because it's never been done this way before. A global pandemic has changed the definition of social interactions, possibly for years to come. Fighting in court to force people to choose between their health and their vote doesn't make election results more authentic. It just makes sure a large number of people won't have their voices heard.

Filed Under: donald trump, election, mail in ballots, voter fraud, voter suppression

The TikTok 'Deal' Was A Grift From The Start: Accomplishes None Of The Stated Goals; Just Helps Trump & Friends

from the a-joke dept

A week ago, we explained that the announced "deal" between Oracle and TikTok was a complete joke and what appeared to be a grift to let Trump claim he had done something, while really just handing a big contract to one of his biggest supporters. That was based on the preliminary details. As more details came out, it became even clearer that the whole thing was a joke. TikTok's investors actively recruited Oracle because they knew they needed to find a company that "Trump liked."

Over the weekend, Trump officially gave the "okay" on the Oracle deal (which now also involves Walmart). And before we get into the details of the deal and why it's a total grift, I'd like to just step back and highlight:

It is positively insane, Banana Republic, kleptocratic nonsense that any business deal should hinge on whether the President himself gives it a thumbs up or a thumbs down. Do not let all the insanity of this current administration hide this fact. If this had happened during the Obama administration, how crazy do you think Hannity/Carlson/Breitbart/etc. would be going right now about "big government" and claiming that the President is corrupt beyond belief? We should never, ever be in a situation where any President is giving the personal thumbs up or thumbs down to a business deal (and that's leaving out the fact that he forced this business deal in the first place with a blatantly unconstitutional executive order.

Okay, now back to the actual deal. Oracle and Walmart will team up to create a "new" (very much in quotes) company called TikTok Global that will be headquartered in the US. Of course, this is a joke. TikTok already has US operations. Oracle and Walmart will end up with a small equity stake in this "new" company (combined about 20%), but the Chinese company ByteDance will still own the majority of the company and will still control the TikTok algorithm. While there is some chatter about how the data will be hosted in the US, for the most part that was already true. Oracle says that it will review things to make sure that the data is secure, but remember, this is the same Oracle that collects a shit ton of data on internet users via Blue Kai, and then leaked it all. It's also the same Oracle that works closely with US spy agencies and isn't exactly known as being particularly good at security.

As the NY Times notes, this deal appears to accomplish literally nothing. As we said before, it was all performative, letting Trump claim he had "done something," when the rationale for the deal ("national security") was always bogus, and this is proved by the fact that nothing in the new setup changes whatever national security questions there were about the app before. So, rather than force ByteDance to "sell" the company to protect "US national security" as the NY Times rightly notes all that came out of this was:

A cloud computing contract for the Silicon Valley business software company Oracle, a merchandising deal for Walmart and a claim of victory for President Trump.

As former FCC chair Tom Wheeler tells the NY Times:

Vetting deals “is normally a process that involves multiple thoughtful people coming to the issue from multiple different concerns,” said Tom Wheeler, a former Democratic chairman of the Federal Communications Commission. “This appears as though what passes for process is what pleases one man: Donald J. Trump.”

Again, Banana Republic kleptocracy.

The NY Times also noted that Walmart either seemed to rush out its press release over the deal, or whoever wrote it had a heart attack in the process of composing it:

“This unique technology eliminates the risk of foreign governments spying on American users or trying to influence them with disinformation,” the company said. “Ekejechb ecehggedkrrnikldebgtkjkddhfdenbhbkuk.”

And that's not even getting into the whole issue of the mysterious $5 billion education fund. With the announcement, Oracle and Walmart said the new company would "pay $5 billion in new taxes to the Treasury," and then separately that it would "develop an educational curriculum driven by artificial intelligence to teach children basic reading, history and other subjects." Those two points got conflated to suggest that it was putting $5 billion into that project -- which sounded suspiciously like the finder's fee Trump demanded when first talking about forcing TikTok to be sold.

This got even more insane when Trump declared that he wanted the $5 billion to be used for his new 1776 history project, which is his new fascistic indoctrination education program, which Trump and his idiot followers insist is necessary because they falsely believe that kids are being indoctrinated to hate America (they're not -- they're just finally being taught, at least a little bit, that slavery is a key part of American history).

And the story got even more crazy when, after Trump talked about all of this, ByteDance came out with a giant shrug, saying it was totally unaware of any $5 billion education fund and appeared to have no interest in actually doing that.

It seems that most of the confusion was -- as per usual -- on the part of our not very intelligent President, who couldn't comprehend that the small education fund was different than the $5 billion, which is merely just estimate future tax revenues to the Treasury that, given the tax breaks this same President has helped set up, will probably never actually materialize.

It's like a clusterfuck of stupidity, corruption and kleptocracy. It's America in 2020.

Filed Under: banana republic, china, donald trump, grift, ieepa, kleptocracy, larry ellison, nonsense
Companies: bytedance, oracle, tiktok, walmart

Details Of Unconstitutional WeChat/TikTok Ban Actually Would Make Users Of Those Apps Less Secure, Not More

from the what-the-fuck-is-this? dept

This morning the Commerce Department released the details of how the WeChat and TikTok bans will work. It's possible that the ban on TikTok will get lifted if Treasury Secretary Mnuchin can convince enough people in the administration to buy into the grifty Oracle non-sale, but the WeChat ban is happening no matter what.

The details reinforce two key points:

1. This is way unconstitutional and should be offensive to any 1st Amendment/free speech supporter.
2. The excuses about national security are utter and total garbage, because this would actually make users of those apps significantly less secure.

So, great. We have some applications bans, premised on national security, that are unconstitutional piles of garbage that make people less secure, and the only possible path out is through a grifty deal, pushed deliberately to a large donor to the President, who has said multiple times he's hoping for a kickback on the deal. We're witnessing an astounding bit of corruption right here.

Here's how the "ban" will work. First up, both apps get banned from all US app stores. The following is listed as "prohibited."

Any provision of service to distribute or maintain the WeChat or TikTok mobile applications, constituent code, or application updates through an online mobile application store in the U.S.

That's basically saying: "Apple and Google can no longer put those apps in their app stores." There are 1st Amendment concerns here, in that the executive branch is telling software companies what code they can or cannot host. While the IEEPA law under which this order is being made is broad, this seems ripe for a huge 1st Amendment challenge. The President should not be able to simply ban code from app stores based on an unsubstantiated claim of "national security."

Second, not only is this all based on unsubstantiated claims of national security, the very text proves how that's bullshit. The fact that these app stores can no longer issue updates means that people who have the apps currently can continue using them, but if there's a security update (say to patch a vulnerability) users can no longer patch those apps. If the goal of this ban is to "protect national security," everything here is exactly the opposite of that. Users will still have the app, but are unable to protect themselves and can only keep using the app if they accept the obsolete and increasingly less secure version of it.

In other words: the whole "national security" claim is a total lie, because the way the ban is implemented gives Americans less security. That sure is one way to fight back against supposed Chinese surveillance through these apps. If it's even true that China is spying on people via apps, they're now in a "don't throw me in the briar patch" situation -- since the US government is forcing these apps to be less secure and to expose even more data to whoever has it.

Another part of the ban that raises significant 1st Amendment issues is that it prohbits:

Any utilization of the mobile application’s constituent code, functions, or services in the functioning of software or services developed and/or accessible within the U.S.

Translating that: it means that no US developer can use WeChat or TikTok's APIs or build software using any of their code. That's deliberately interfereing with the speech of Americans. Leaving aside the issue of whether or not banning apps that allow for communications is a 1st Amendment issue. Leaving aside the issue of whether or not banning apps at all is a 1st Amendment issue. This goes even further: it says that US-based software developers cannot write the code they want. That's a huge 1st Amendment issue.

I discussed this a few months ago but the Supreme Court has already said that code is speech in Brown v. Entertainment Merchants Association (the case about whether or not the government could regulate video games and require age warnings). And, while it's not the Supreme Court, the 2nd Circuit has been even more direct about code being speech protected by the 1st Amendment in the the Universal v. Corley case (about whether or not you could publish code that breaks DRM):

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone [*446] chose to write a novel entirely in computer object code by using strings of 1's and 0's for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English. The "object code" version would be incomprehensible to readers outside the programming community (and tedious to read even for most within the community), but it would be no more incomprehensible than a work written in Sanskrit for those unversed in that language. The undisputed evidence reveals that even pure object code can be, and often is, read and understood by experienced programmers. And source code (in any of its various levels of complexity) can be read by many more. Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language.

Later in that ruling:

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer. A recipe is no less "speech" because it calls for the use of an oven, and a musical score is no less "speech" because it specifies performance on an electric guitar. Arguably distinguishing computer programs from conventional language instructions is the fact that programs are executable on a computer. But the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions "speech" for purposes of the First Amendment.

Based on all of that, it is difficult to see how this broad ban can possibly stand up to 1st Amendment scrutiny on multiple levels. The banning of US developers coding using these companies APIs is a 1st Amendment violation. The ban on US companies hosting their code is a 1st Amendment violation. The ban on apps used for speech is likely a 1st Amendment violation (on par with breaking up printing presses). So, these bans appear to violate the 1st Amendment in multiple different ways.

And for what? The claim is "to protect national security." We already knew that was bogus, and all of the info anyone can get from TikTok is already widely available for purchase. But now with the details coming out, in which it would make the data of US users of these services even less secure by banning updates, we have even more evidence that the national security claims are joke.

And thus, the bans are likely unconstitutional on multiple different grounds, have no national security purpose based on multiple different problems with the deal, and don't seem to do anything other than potentially put a lucrative business deal in the pocket of a top Trump supporter. How is there anyone out there who thinks this is a reasonable thing?

Filed Under: 1st amendment, apis, bans, china, code, commerce department, donald trump, executive order, ieepa, national security, security, updates
Companies: apple, bytedance, google, oracle, tencent, tiktok, wechat

WeChat Users Fighting To Block Trump's Executive Order Banning The App In The US

from the it-would-be-an-issue dept

While the TikTok part of Trump's original August Executive Order got all the attention, we pointed out that it was fairly notable that he issued a nearly identical order to also effectively ban WeChat by blocking any transactions related to WeChat. While WeChat is not that well known or widely used in the US, it is basically central to the Chinese internet, and, as such, is a key part of how many Chinese Americans stay in touch with relatives, friends, and colleagues back in China. So it was perhaps not that surprising that a group of WeChat users in the US quickly sued to try to block the order:

Neither the Executive Order itself nor the White House provided concrete evidence to support the contention that using WeChat in the United States compromises national security. Notably, no other nation has implemented a comprehensive WeChat ban on the basis of any like-finding that WeChat is a threat to national security. The Executive Order was, however, issued in the midst of the 2020 election cycle, during a time when President Trump has made numerous anti-Chinese statements that have contributed to and incited racial animus against persons of Chinese descent—all outside of the national security context.

In a stark violation of the First Amendment, the Executive Order targets and silences WeChat users, the overwhelming majority of whom are members of the Chinese and Chinese-speaking communities. It regulates constitutionally protected speech, expression, and association and is not narrowly tailored to restrict only that speech which presents national security risks to the United States. Accordingly, it is unconstitutionally overbroad. Indeed, banning the use of WeChat in the United States has the effect of foreclosing all meaningful access to social media for members of the Chinese-speaking community, such as Plaintiffs, who rely on it to communicate and interact with others like themselves. The ban on WeChat, because it substantially burdens the free exercise of religion, also violates the Religious Freedom Restoration Act.

The Executive Order runs afoul of the Fifth Amendment’s Due Process Clause by failing to provide notice of the specific conduct that is prohibited; because of this uncertainty, WeChat users in the United States are justifiably fearful of using WeChat in any way and for any purpose—and also of losing access to WeChat. Since the Executive Order, numerous users, including Plaintiffs, have scrambled to seek alternatives without success. They are now afraid that by merely communicating with their families, they may violate the law and face sanctions.

As the complaint highlights, just the issuing of the Executive Order has created panic among people who rely on it to communicate with people in China:

The U.S. WeChat Users Alliance (“USWUA”), Chihuo, Inc., Brent Coulter, Fangyi Duan, Jinneng Bao, Elaine Peng, and Xiao Zhang (collectively, “Plaintiffs”), bring this suit to challenge the Executive Order, which eviscerates an irreplaceable cultural bridge that connects Plaintiffs to family members, friends, business partners, customers, religious community members, and other individuals with common interests within the Chinese diaspora, located both in and outside of the United States. The Executive Order has already harmed Plaintiffs, who are plagued with fear for the loss of their beloved connections, whether it be with friends, family, community, customers, aid recipients of the charities they run, or even strangers whose ideas enrich their lives. They have been forced to divert time, energy, and money to seek alternative communication platforms, download and save irreplaceable digital histories, plan for business closures, find other sources of information, and try to obtain alternative contact information for those from whom they will soon be separated. Even if they succeed to some extent in their mitigation efforts, Plaintiffs will never be able to replace the full spectrum of the social interactivity that WeChat offers, nor will they be able to find any social networking platform with anything close to the same level of participation by the global Chinese diaspora—this is because WeChat’s network effects, generated by its 1 billion-plus daily users, is irreplaceable

The plaintiffs have also filed for a preliminary injunction against the Executive Order (which is set to go into effect on Sunday). There's a hearing on Thursday. So far, the plaintiffs have failed to get expedited discovery, as the judge notes that pretty much everything so far relies clearly on public information, and there's no need for discovery at this point -- not to mention there would be a pretty big argument over what things are actually subject to discovery anyway.

The government's opposition to the injunction request is... weird? It basically starts out with a big attack on China that's just sort of priming the pump and hand-waving around the idea that if China is bad then it's self-evident that any app that comes out of China must also be bad. This part of the argument focuses on... companies that are not Tencent/WeChat, but instead does the fear mongering about Huawei and ZTE that (we've noted many times) has never presented any actual evidence of bad behavior by those companies. Also, Huawei and ZTE are not... Tencent.

So then the DOJ just points to a random Australian think tank white paper that says Tencent/WeChat is also bad. They cite a few other such reports, but the "bad" seems to be that China heavily censors WeChat and... duh? But how does that mean it's dangerous in the US and should be banned? Incredibly -- given the frequency with which the President himself has retweeted conspiracy theories pushed by Russian troll accounts -- the DOJ actually argues that because some disinformation is found on WeChat, that's reason enough to ban it:

The Report also observed that the WeChat app is a key tool for China’s disinformation campaigns, citing as one example Australia’s May 2019 election, in which “fake news on WeChat was such a problem that Australia’s Labor Party contacted WeChat owner Tencent to express frustration about posts spreading disinformation.” Id. at 406-07. The Report cautioned that “use of [WeChat] had spread beyond the Chinese Australian community, with about 3 million Australians using WeChat by 2017,” id., and that “almost the entire Mandarin-speaking community in Australia . . . used WeChat,” allowing “Beijing [to] ‘promote particular issues [as] a way of controlling public debate.’”

I find it pretty fucking ironic that at the same time our government is using claims of "fake news" on a social media platform as an excuse to ban it, it is also trying to force American social media companies to no longer be able to moderate "fake news" and foreign propaganda.

Where the government may have more success is by arguing that the claims are "not ripe" because the executive order hasn't been implemented yet. But, that's just kicking the can down the road. Because once it is implemented, the same basic claims will remain. It does argue that the 1st Amendment claim will fail because its content neutral. That is, the DOJ is saying "we're not targeting specific speech, we're just banning an app used for speech.... that happens to be used by lots of Chinese speaking people." I think that's... pretty weak. That's "we're not blocking the printing of your magazine, just ordering the destruction of your printing presses, which might be used to print any magazine." That's not allowed under the 1st Amendment, and it shouldn't be allowed under this order.

Anyway, we should get a ruling at least on the preliminary injunction relatively quickly (given that it's slated to go into effect on Sunday). I hope the court does grant the injunction, but I'd be surprised if it does. It seems much more likely to punt based on ripeness for now. However, this case (unlike the TikTok cases, which may not matter if a deal is reached) could go on for quite a while, and could be pretty damn important in determining if the White House can just up and ban a foreign software application.

Filed Under: 1st amendment, china, donald trump, executive order, free speech, users
Companies: tencent, wechat

Court Refuses To Block Trump Exec Order On TikTok As Requested By TikTok Employee After DOJ Says He Can Still Get Paid

from the so-many-arguments dept

There have been a variety of lawsuits filed regarding Trump's silly Executive Order regarding TikTok, but one interesting one involves an employee of TikTok, Patrick Ryan, who filed suit on his own behalf to try to block the Executive Order from going into effect. A key part of Ryan's argument is that since the executive order bans transactions, it would mean his own salary from TikTok's parent company, ByteDance, might be blocked by the US government.

It is impossible to know now whether the Commerce Department will exempt the payment of wages and salaries from the dictates of the Executive Order, and Plaintiff will not know until the day the order is to take effect, but any plain reading of the language of the order would include the payment of wages and salaries to U.S. employees of TikTok within that definition

As such, Ryan asked the court to issue a Temporary Restraining Order to block the Executive Order from actually going into effect on September 20th. There's more to the lawsuit than that, but the DOJ responded to say "we won't block employee salaries."

The Department of Commerce can state that it does not intend to implement or enforce Executive Order 13942 in a manner which would prohibit the payment of wages and/or salaries to Plaintiff or any other employee or contractor of TikTok.

The Department of Commerce can state that it does not intend to implement or enforce Executive Order 13942 in a manner which would prohibit the provision of benefits packages to Plaintiff or any other employee of TikTok.

The Department of Commerce can state that it does not intend to implement or enforce Executive Order 13942 in a manner which would result in the imputation of civil or criminal liability to Plaintiff or any other employee or contractor of TikTok for performing otherwise lawful actions that are part of their regular job duties and responsibilities.

That caused Ryan's lawyers to declare at least an initial victory:

This morning, the Government advised Plaintiff’s counsel and later the Court that it in fact will not apply the Executive Order to the payment of TikTok wages, salaries or benefits, or impose civil or criminal sanctions against them for doing their jobs, thereby mooting the need to seek a temporary restraining order against the Government to protect the TikTok employees.

We are pleased that our litigation was able to achieve this fantastic result for the thousands of TikTok employees around the world, and we are confident that the remaining issues in this case also will be litigated fully to a successful conclusion, which will be the striking of the Executive Order as a unconstitutional overreach by this U.S. President.

However, it also made it easy for the judge to then deny the requested TRO:

Ryan’s application for a temporary restraining order is denied for two related reasons. First, there is a serious question about whether this Court has jurisdiction to issue a temporary restraining order at this point in time. It seems unlikely that the conflict between Ryan and the federal government has ripened into a true “case or controversy” within the meaning of Article III of the United States Constitution. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 297 (1979). Whether Ryan could actually face prosecution for getting a paycheck from TikTok depends on a number of uncertain conditions. As a foundational matter, the President may only exercise his emergency powers to block transactions with a foreign-owned entity. ByteDance is widely reported to be in negotiations to alter its ownership structure in a manner that could result in non-enforcement of the Executive Order.

Even if that fails, the Secretary of Commerce would need to include payments to employees on the list of prohibited transactions. And then there would need to be real risk that federal government would actually start prosecuting TikTok employees for receiving paychecks. That is an unlikely chain of events—indeed, yesterday the government filed a notice in this case specifying that the Department of Commerce “does not intend to implement or enforce [the Executive Order] in a manner which would prohibit the payment of wages and/or salaries to Plaintiff or any other employee or contractor of TikTok.” It is thus doubtful—at least at this time—that Ryan’s alleged fear that he faces prosecution is reasonable.

The second reason for denying the temporary restraining order is that, even if the Court presently has jurisdiction, Ryan has not demonstrated that he is likely to suffer irreparable harm absent an immediate ruling. His vague allegation that he would suffer reputational harm from the government’s implementation of the Executive Order against TikTok certainly does not suffice. Ulrich v. City and County of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (citing Paul v. Davis, 424 U.S. 693, 701, 711 (1976)). And to the extent Ryan seeks to protect a future paycheck (or to protect against prosecution for receiving money that TikTok owes him for work performed), that protection could be readily provided at a later date, if and when the possibility of losing it becomes more concrete.

Of course, many of these cases may be moot, should the Treasury Department decide that the weird non-sale to Oracle solves any "problems" for TikTok.

Of course, there's still another lawsuit from a bunch of WeChat users about the Executive Order, and since there's no attempt to sell WeChat... that case may have a longer lifespan, but we'll cover that in another post (stay tuned).

Filed Under: donald trump, employees, executive order, patrick ryan
Companies: bytedance, tiktok

The TikTok Oracle Grift: Insiders Admit They Went Hunting For A Tech Company The President Liked

from the because-of-course dept

Earlier this week we wrote about the absolute grift involved in the TikTok / Oracle deal. Contrary to the framing that this was Oracle "buying" TikTok to satisfy the President's unconstitutional demand that the Chinese company ByteDance sell TikTok to an American company, the story showed that this was just a hosting deal for Oracle's cloud service, which is way down the list of top cloud providers.

The end result was no actual sale (though the Treasury Department is still "reviewing" the deal), but a big contract for Oracle, and a bogus story in which the President can pretend he forced ByteDance to "sell" TikTok, even though it retains ownership in the company (there are some rumors that the hosting deal will include a small, and probably symbolic, equity stake for Oracle).

The other key point I noted in my article was that Oracle's executive leadership, starting with Larry Ellison, but including CEO Safra Catz, have been cozying up to Trump and the White House ever since Trump became President. While much of Silicon Valley's executive teams have made it quite clear how uncomfortable they are with a Trump Presidency, Oracle... has done the opposite. And while I framed it as being convenient that things worked out this way, a report from the Wall Street Journal highlights how this was the grift from day one.

Oracle was originally brought into the negotiations to provide an alternative to Microsoft Corp., a rival bidder with Walmart as a partner, said one person familiar with the talks. The U.S. investment firms Sequoia Capital and General Atlantic, which are existing investors in ByteDance, went in search of a tech company with close ties to the administration and settled on Oracle, the person said.

As we discussed earlier, from day one of this silly ordeal, the President made it clear he would steer a deal to a company he personally liked (meaning one where the leadership licked his boots, apparently). After all, after first saying that he was going to block TikTok in the US, as rumors of Microsoft's involvement came out, Trump immediately said that he would block a deal with Microsoft. Microsoft had to go grovelling to Trump over a weekend to have him say, grudgingly, they could continue to pursue a deal.

Then, of course, there's the Walmart story. Rumors came out that Walmart was a leading bidder, but Trump's White House stepped in and told them they would block that deal too, because it would show that Trump's figleaf "national security" explanation for banning TikTok was an obvious lie.

In other words, throughout this nonsense process, the President -- who at one point also demanded a finder's fee for any deal -- made it clear that this was about his own whims. He was forcing a sale, and he was going to pick a winner -- and the winner had to be someone he liked.

That doesn't seem like the kind of free market people appreciate. It seems like the very worst of a corrupt crony capitalist system.

The WSJ piece details how being corrupt this whole process was. It was all about stroking Trump's ego, and lining his campaign's bank account:

Sequoia Capital used its own connections to push the administration to allow TikTok to continue operating in the U.S., say people familiar with the discussions. Doug Leone, the firm’s global managing partner who took a lead role lobbying on TikTok’s behalf, has donated tens of thousands of dollars to Republican candidates this election season along with his wife, including to the president’s re-election campaign. Mr. Leone also held a reception at his Silicon Valley home for Secretary of State Mike Pompeo in January.

Ms. Catz’s relationship to Mr. Trump could give Oracle a leg up in getting the deal approved, according to people in contact with the White House. Oracle has worked for decades with the U.S. government, including multiple contracts with the national-security establishment.

Once again, this was nothing but performative nonsense from the President that ends in his own supporters lining their pockets. None of it seems to have anything to do with actual national security. It's a joke.

Filed Under: china, corruption, donald trump, doug leone, grift, larry ellison, safra catz
Companies: bytedance, microsoft, oracle, sequoia, tiktok, walmart

Oracle Doesn't Buy TikTok, But Gets A Lucrative Hosting Deal, And Trump & Friends Will Pretend This Means Something

from the art-of-the-grift dept

The TikTok saga, which was insanely stupid to begin with, kicked into overdrive last month when President Trump issued a blatantly unconstitutional executive order that was designed to force ByteDance to sell TikTok to an American company. We had all sorts of questions about this, but effectively ByteDance had until this week to find a buyer. While Microsoft was rumored for a while, late last night Microsoft announced that its proposal had been rejected and the only competitor left standing was... wait for it... Oracle. This led many to conclude that Oracle was buying TikTok. That is not the case. But hold on, we'll get there.

There was one other serious bidder: Walmart. Last night the company claimed it was still interested in buying TikTok, but the White House rejected that plan, because it would have made it totally obvious that the "national security" pretense for demanding the sale was obvious bullshit. Nope, the White House said: it has to be sold to a "tech" company, so that the White House can stand by its totally unsubstantiated by evidence claims that TikTok's dancing teens represented a national security threat.

So, with Walmart blocked, and Microsoft's deal not accepted, that left Oracle. But immediately the descriptions of Oracle's involvement were... weird. They very clearly did not say anything about "buying" TikTok. Instead, Oracle put out a very short press release saying that it will "serve as the trusted technology provider" to TikTok. That's not how you describe a sale.

This is a hosting deal.

Oracle will just host TikTok on its wannabe, way-behind-the-competition, cloud platform. And Trump and his cult-like supporters will pretend this actually accomplishes something. Oracle's executive suite has long been vocal Trump supporters, so this basically dumps a giant hosting contract into Oracle's lap. ByteDance will effectively still own TikTok, and Trump will pretend he's done something. For what it's worth, this is the second big Oracle cloud deal done in the last few months, with the previous one being with videoconferencing company Zoom.

As Russell Brandom over at the Verge notes, this deal "accomplished nothing." ByteDance still owns TikTok (and, according to reports, retains full control over TikTok's algorithm). As former Yahoo and Facebook Chief Security Officer Alex Stamos points out, literally none of the concerns people have raised about TikTok (most of which were bogus in the first place) are solved by an Oracle hosting deal:

As Stamos points out, accepting this deal would show that it's nothing but "pure grift," basically dumping a forced contract into Oracle's lap, a company which (again) has had an executive licking Trump's boots since day one.

And people can't even truly argue that Oracle will somehow make whatever little "private" data there is on TikTok "more secure." It's not like it was just months ago that an Oracle-owned subsidiary, BlueKai, leaked data that tracked users all over the web, exposing billions of records.

In other words, the whole thing was a joke. Like so much of this administration it was performative nonsense by Trump, who was mad that some kids made him look foolish on TikTok, combined with anti-Chinese racism, to push for a deal he had no legal right to push for, resulting in a weird scramble that doesn't accomplish what he wanted, but does shift a bunch of money to some of his vocal and wealthy supporters. The "Art of the Grift."

Filed Under: china, corruption, donald trump, grift, hosting, larry ellison, national security, security
Companies: bytedance, microsoft, oracle, tiktok

DOJ Tries To Step In To Trump Defamation Case To Get It Dismissed; Claims His Statements About Alleged Rape Were Part Of His Presidential Duties

from the say-what-now? dept

Earlier this week, you may have seen a bunch of headlines about Bill Barr's DOJ trying to step in to take over a defamation case against the President. There is so much crazy about this story that it seemed worthwhile to dig in.

There have been a rash of somewhat strange defamation lawsuits over the last few years, often connected to the "me too" movement, in which someone calls out a person for bad behavior, the accused person denies it, and then the accuser sues for defamation. To be honest, most of these feel like SLAPP suits, even if I'm sympathetic to the accuser. A mere denial of something should not be nearly enough to reach the stage of defamation. One of these lawsuits was filed by E. Jean Carroll against President Trump. Carroll claimed that Trump sexually assaulted her in a dressing room in a Manhattan department store many years ago. Upon being asked about the accusations, Trump denied it, saying they were "totally false" and claiming (falsely) that he "never met this person in my life." Based on those statements, Carroll sued in NY state court.

Again, I actually think the case is pretty weak as a defamation case. Many of the claimed statements are not remotely possible of reaching the level of defamation. Many of them take statements that Trump made and stretch the intended meaning of them quite far. Others take statements that are clearly Trump's (bonkers) opinion, rather than factual. It is, overall, a weak case and will almost certainly not be a winning case for Carroll. That said, the case has rolled on (remember: New York has a terrible anti-SLAPP law, one of the worst in the country -- and while the legislature has passed an improved law, I don't believe Cuomo has signed it yet). Most recently there was a discovery dispute. Carroll is seeking a sample of Trump's DNA as part of her discovery requests. Trump's personal lawyers sought to delay discovery, but failed to do so last month.

That puts the President in a bit of a pickle. Even though he'd likely win the lawsuit in the end, it appears he'd really rather not provide Carroll with a sample of his DNA. The insane solution? Bill Barr and the DOJ suddenly jump into the case on behalf of Trump and try to remove it to federal court, taking over for Trump's private lawyers. Now you may be saying "wait, what?" and I agree with you. But, a little background here is necessary. First, there's the Westfall Act, which requires that if the Attorney General "certifies" that the actions a federal employee is being sued over were "acting within the scope of his office or employment," then the DOJ steps in to represent that federal employee. This is done to avoid having federal employees randomly sued and having their life upended for doing their job.

But... this is not the usual case in which you'd see this. For this to apply, Bill Barr has to claim that Donald Trump saying he didn't know E. Jean Carroll, didn't rape her, and a few other things were within the scope of his role as President of the United States... and what the actual fuck? How is that even remotely a thing? The filing by the DOJ doesn't go into much depth on this, it just says that because the DOJ says so, it must be so:

Acting pursuant to 28 C.F.R. § 15.4(a), the Attorney General’s delegate has certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

In a footnote, the DOJ tries to give Barr deniability by saying he delegated his authority here to Torts Branch Director James Touhey, but come on. Everyone knows that this is Barr doing the President's personal business. The full certification is just Touhey saying "yup, he denied the rape as part of his job" in slightly more official words:

I, James G. Touhey, Jr., am the Director of the Torts Branch, Civil Division, United States Department of Justice, responsible for most civil litigation under the Federal Tort Claims Act. I have read the complaint dated November 4, 2019, in the above-captioned case. Pursuant to 28 U.S.C. § 2670, and by virtue of the authority vested in me pursuant to 28 C.F.R. § 15.4, I hereby certify, on the bases of the information now available with respect to the incidents alleged in the complaint, that Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.

Honestly, this bullshit should haunt James G. Touhey Jr. for the rest of his life as a lawyer. It is pure bullshit.

And while some people are claiming that this is the DOJ trying to take over the "defense" of Trump in this case, that's not it at all. It's trying to get the case dismissed. Federal employees are effectively immune from defamation claims under the very same Westfall Act, because of sovereign immunity. In the case of Suzanne Brown v. Katherine Schoeneman, someone tried to sue an FBI employee for defamation, but the DOJ stepped in under the Westfall Act (making the new case Brown v. U.S.) and got the case dismissed thanks to sovereign immunity for defamation claims.

Of course, that ruling does say that the DOJ's certification can be challenged, and you can bet that Carroll's lawyers are going to challenge every last word of Touhey's certification -- so I assume that's the next step here. For what it's worth, the case has been assigned to Judge Lewis Kaplan. I honestly don't know much about Judge Kaplan other than the fact that last month we wrote about him issuing quite a benchslap to infamous copyright troll Richard Liebowitz, so based on that small sample size, he appears to be a judge not willing to put up with much shit. That said, the DOJ is not the same as Richard Liebowitz.

Also, as pointed out by Ken White, there are some cases that suggest the DOJ could win this argument. In CAIR v. Ballenger, the DC Circuit said that since answering questions from the press is part of the job, then answers about a scandal outside of your official duties could be considered within the scope of the office. So, because the press was talking to him in his role as President and he answered as such, his answers about a claim of rape from decades ago are now a part of his job as President. This argument makes about as much sense as saying that his comments were defamatory in the first place, so it's a toss up here over which of these arguments is dumber.

Of course, some of you may be asking why did the DOJ just step in now if the case was filed back in November of last year. The answer is almost certainly that Trump REALLY REALLY does not want to give a DNA sample to Carroll. There may be legit reasons why he would not want to do that, and I still think her defamation case is weak, but it's is truly fucked up that he then gets to pervert the Justice Department with the help of Bill Barr, to try to squeeze out of the case.

Filed Under: defamation, discovery, dna, doj, donald trump, e. jean carroll, westfall act, william barr