Trump Campaign Gets Laughed Out Of Court For Claiming A Bunch Of Unvetted Webform Submissions Is 'Evidence' Of Voter Fraud

from the who-needs-sworn-statements-when-you-have-a-CAPTCHA dept

The Trump Campaign is back in court, hoping to reclaim a presidency Donald Trump has lost. It spent plenty of time in court prior to the election, hoping to prevent as many people as possible from voting. Now, it's doing the same thing, insisting (without evidence) there's voter fraud everywhere.

Immediately following Election Day, the Trump campaign opened its own voter fraud hotlines. People who thought they observed voting fraud were encouraged to call the campaign or submit sworn statements via a handful of websites. Both offerings were immediately swamped by pranksters and other non-fans of Trump, tying up phone lines and filling the webform coffers with useless things like, say, the script from "Bee Movie."

Undeterred by a lack of credible fraud accusations, the Trump campaign still attempted to submit some of its mostly unvetted webform garbage as "evidence" in its Arizona lawsuit. As Adam Klasfield reports, the judge wasn't impressed by the campaign's attempt to portray a bunch of statements from internet randos as something worth the court's time and attention.

A Trump campaign attorney conceded in court on Thursday morning that he tried to enter hundreds of dodgy form-filed affidavits into evidence, even though their own investigation found that a subset of the sworn statements that they received were filled with lies and “spam.”

“This is concerning,” Judge Daniel Kiley, from Arizona’s Maricopa County, remarked with some understatement.

This wasn't the only laughable assertion by Trump campaign attorney, Kory Langhofer. On the record and in front of a judge, Langhofer said the campaign was confident it had weeded out bot submissions because the site had a CAPTCHA.

Then he got even stupider by claiming the narratives the Trump campaign couldn't immediately disprove must be truthful representations. Not being able to prove something is a lie isn't the same thing as finding it to be true, the judge pointed out.

Judge Kiley replied that this did not show the remaining affidavits are trustworthy.

“That just shows you cannot disprove what’s asserted,” Kiley noted.

Then, despite entering the legal arena to dispute alleged fraud, the Trump attorney said it was unlikely anyone actually engaged in fraud.

“This is not a fraud case,” Langhofer said, casting the lawsuit instead as allegations of flaws within the voting system. “It is not a stealing-the-election case.”

It appears the Trump campaign's lawyer isn't getting the talking points memos. There have been wild, widespread accusations of voter fraud from both the outgoing president and many of his administration figureheads, which for some reason include his children and his children's spouses.

The Trump campaign thinks a webform and a hotline that will coddle conspiracy theorists when not swamped by pranksters is going to help it win back an election. Good luck with that. But it will make for some great popcorn munching as the campaign and its attorneys continue to embarrass themselves in courtrooms around the nation until every last avenue for redress has been (in all senses of the word) exhausted.

Filed Under: donald trump, election, evidence, fraud hotline, trump campaign, voting, webform

Beijing Ends Democracy In Hong Kong By Ousting Pro-Democracy Lawmakers

from the game-over dept

In the aftermath of our recent election, with all of the exuberance on one side and the laughable claims of stolen elections on the other, one underlying concern discussed before the election seems to have gone by the wayside: what happens in the last days of the Trump presidency if he loses? You heard the most prevalent concerns in the immediate runup to election day, which typically amounted to wondering aloud what unhinged or corrupt shit Dear Leader would get up to when his Dear-Leadership suddenly carried an expiration date? It was, frankly, a fair concern to have.

But there is a flip side to that fear: what will other countries do in the final days of the Trump presidency, particularly those that have gotten used to his lax attitude towards authoritarianism, human rights abuses, and most of the goings-on around the world? Would Russia attempt to gobble up more previously-Soviet territory, a la Crimea? Would Saudi Arabia carry out more brutal attacks on journalists critical of the Saudi Royal Family? Would China give up its slow-crawl dismantling of democracy in Hong Kong and just try to take over?

Well, on that last one at least, we now know the answer is yes. In fact, it was only in the wake of the election in America being called for President Elect Biden that China rushed through a resolution to oust four pro-democracy members of the Hong Kong government, seemingly for being too anti-Beijing.

The Chinese Parliament on Wednesday adopted a resolution that pushed out four pro-democracy lawmakers in Hong Kong, prompting more than a dozen of their colleagues to resign en masse.

According to The Associated Press, China’s National People’s Congress Standing Committee passed a directive stating that any lawmaker may be removed from their position if they support Hong Kong’s independence, refuse to recognize China’s authority over the city, threaten national security or call for external intervention in its affairs.

Pay no mind to that language in the directive. As with all things mainland China, one must look at all of this through Orwellian eyes. The language in the directive is meant to sound just reasonable enough to remain full vague, which allows Beijing to yank away any lawmakers that say things the Communist Party doesn't like. Those sorts of utterances include anything pro-American, anything pro-democracy, or anything that promotes independent governance of Hong Kong. That the ouster of four members of the government immediately prompted fifteen more assembly members to resign, leaving literally zero assembly members that are not Beijing sycophants should tell you everything you need to know.

It's hard to overstate how brazen a ramp up of aggression this move represents. It was only months ago that protests in Hong Kong were raging and Carrie Lam pretended to back off from the mainland's odious new laws over the island city. What changed?

Well, between the COVID-19 pandemic gobbling up all the world's attention for a good chunk of the year combined with the vacuum left by a man-baby refusing to leave office gracefully, the Chinese government has probably determined that now is the time to make a move before the new administration sits in power. But if Beijing thought Hong Kong would go quietly, it hasn't been paying attention these past few years.

During the news conference, the lawmakers reportedly held hands and chanted, “Hong Kong add oil! Together we stand!” According to the AP, the phrase “add oil” is a direct translation of a Chinese expression of encouragement.

“My mission as a legislator to fight for democracy and freedom cannot continue, but I would certainly go along if Hong Kong people continue to fight for the core values of Hong Kong,” one of the disqualified members, Kwok Ka-Ki, told reporters, according to Reuters.

The protests will rage once more. And, whereas the American government as it currently stands once gave lip service to those protests, now the Chief Executive for the next several weeks is far too busy golfing and raging at election results to concern himself with democracy abroad.

Filed Under: china, democracy, donald trump, hong kong

President-For-Life Hopeful Donald Trump Issues Executive Order Mandating 'Patriotic' Education For Kids

from the King-Bumblefuck-the-Orange dept

When schools finally re-open to everyone and COVID is behind us (est. 2025), students will possibly have the chance to join their friends in some good old-fashioned American reeducation. God bless this autocracy.

For all of his socialism bashing, Donald Trump and his admin staff sure seem to want to align the United States with the great Communist dictatorships of the past and present. Trump welcomed America to join him in the erection of a police state and just kept going from there. Cops received even more presidential coddling and the Administration decided the state of free speech might improve if the federal government directly meddled with social media moderation.

Then there's the erection of walls and the increase in inland Checkpoint Charlies as the result of the president's focus on brown people from foreign lands. Protests against police brutality have been met with Gestapo tactics designed to limit the effect of people uniting against fascism. And the President's hatred of a free press, "closed" defamation laws, and non-sycophants has been noted repeatedly.

The latest Presidential proclamation is as problematic as his call for flag burning prosecutions. In reaction to people sensibly suggesting a lot of this country's "greatness" is built on the backs of slave labor and racist policies, President Trump has developed a plan for patriotic indoctrination of the nation's students. A new Executive Order mandates the formation of a committee to push for more jingoism in our schools. Better red-white-and-blue than dead, indeed.

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to better enable a rising generation to understand the history and principles of the founding of the United States in 1776, and, through this, form a more perfect Union, it is hereby ordered as follows:

Here's some of the "as follows," written in the way so few Executive Orders have historically been written. Taking a cue from stunt lawyer Larry Klayman's legal complaints, the Order lays on the overheated rhetoric early and often.

The American founding envisioned a political order in harmony with the design of “the Laws of Nature and of Nature’s God,” seeing the rights to life, liberty, and the pursuit of happiness as embodied in and sanctioned by natural law and its traditions.

[...]

[I]n recent years, a series of polemics grounded in poor scholarship has vilified our Founders and our founding. Despite the virtues and accomplishments of this Nation, many students are now taught in school to hate their own country, and to believe that the men and women who built it were not heroes, but rather villains. This radicalized view of American history lacks perspective, obscures virtues, twists motives, ignores or distorts facts, and magnifies flaws, resulting in the truth being concealed and history disfigured. Failing to identify, challenge, and correct this distorted perspective could fray and ultimately erase the bonds that knit our country and culture together.

This would be laughable if it weren't delivered by a sitting President. I mean, it's still pretty laughable but there's considerable executive power behind it.

The "bonds that knit this country together" are white people and their preferred religions/traditions, as far as I can tell. Any suggestion founding fathers and other political figures may have embraced racism and/or trafficked in the slave trade is apparently going to be excised in favor of a more flag-humping narrative. Also presumably on the chopping block is the history of our nation's law enforcement agencies, which were instrumental in ensuring the slave trade went uninterrupted and openly engaged in hostile acts against blacks and other minorities once slavery was abolished. The latter practice continues to this day.

Without whitewashing the past, the nation's future is in jeopardy, the President argues.

A loss of national confidence in these principles would place rising generations in jeopardy of a crippling self-doubt that could cause them to abandon faith in the common story that binds us to one another across our differences. Without our common faith in the equal right of every individual American to life, liberty, and the pursuit of happiness, authoritarian visions of government and society could become increasingly alluring alternatives to self-government based on the consent of the people. Thus it is necessary to provide America’s young people access to what is genuinely inspiring and unifying in our history, as well as to the lessons imparted by the American experience of overcoming great national challenges. This is what makes possible the informed and honest patriotism that is essential for a successful republic.

I've got news for Trump. A whole lot of America has already "abandoned faith" in the "common story," primarily because the story isn't "common." It doesn't cross race lines and it's never been available to everyone. The idea that America is a meritocracy is ridiculous. Donald Trump is a prime example. He's a rich white man whose fortune was derived from the rich white man who raised him and gave him his fortune. It's been buttressed by favorable bankruptcy laws and a bank that now regrets propping up the finances of the most powerful man in the world.

America does offer more freedom than most countries, but the percentage of people bootstrapping themselves into financial security is a much, much smaller percentage than those who have never had to worry about financial security and have done little more than parlay their considerable riches into immense amounts of personal wealth that generally benefits no one but themselves. Any suggestion the government might want to spend less money on unwinnable wars (Terror, Drugs, etc.) and more on social services that might prevent millions of struggling Americans from going under is treated with disdain usually reserved for the long-dead Soviet Union. Meanwhile, banks run by billionaires are bailed out, even as the mortgage holders they fucked into insolvency are ignored.

Then there's this set of sentences, which sure as fuck sounds like some Maoist treacle.

Vigorous participation in local government has always been America’s laboratory of liberty and a key to what makes us exceptional. The best way to preserve the story of America’s founding principles is to live it in action by local communities reasserting control of how children receive patriotic education in their schools.

The reeducation will continue until the President's morale improves.

To that end, a bunch of current and former government officials from a number of federal agencies are being ordered to do a bunch of committee stuff and report to the President within one (1) year on how to better bathe the nation's children in red, white, and blue. Someone has to locate the "core principles" of this country's founding and connect them to the "blessings of liberty" and put all of that into a three-ring binder that had better say something about "forming a more perfect Union" if the committee members know what's good for them.

The committee also needs to plan a really kick-ass semiquicentennial celebration for the USofA. Given the President's predilection for shows of power by foreign authoritarians, this will presumably include a parade of military equipment and personnel. There are also some latent threats about funding, suggesting schools with less-than-patriotic curriculum will get the federal shaft for refusing to participate in this embarrassing charade.

This is a lousy cover of Lee Greenwood's inescapable hit d/b/a an Executive Order. This is a call for mandatory patriotism targeting the most impressionable minds in our population. This is dangerous stuff and there's no adult in the (Oval) room willing to call bullshit on Trump's masturbatory fantasies. Hopefully this will all be behind us by the end of January 2021. But if Trump retains power, we're in for a lot more flag-waving at order-point. And things like this ironically make it that much harder to be proud to be an American.

Filed Under: donald trump, executive order, history, indoctrination, patriotism, propaganda, schools

While Social Media Was Quick To Highlight And Limit The Spread Of False Claims Of Election Victory, Traditional Media Just Let It Flow

from the guys,-seriously? dept

For four years, all we've been hearing about is how social media was this terrible source of disinformation that had to be regulated because they were destroying democracy and all that. And so what happened last night/early this morning when Donald Trump falsely tried to claim he had won prior to all the votes being counted? Twitter and Facebook both reacted pretty quickly to flag the information, and highlight that it was misleading or false (and Twitter limited the ability to share it).

Meanwhile, nearly every major TV station allowed Trump to give his speech directly, in which he falsely claimed that he had already won states where there were still many votes to be counted, insisted that the counting of votes must be stopped (and claiming he was going to ask the Supreme Court to stop the count), and suggesting that there was fraud going on in a few states that still had significant mail-in ballots to count (most of which they hadn't been able to count prior to yesterday because of Republican legislatures blocking that ability). There was no attempt to delay what he was saying, to contextualize it or to point out it was wrong until well after it had broadcast.

And then you had journalistic malpractice via the Associated Press. Two of its White House reporters, Zeke Miller and Jonathan Lemire, decided to do a "straight" tweet repeating what Trump had said, without any context, without any caveats or context, as if it were factual reporting.

It's flabbergasting that the AP would take this view from nowhere approach to reporting on something so critical. And, even worse, since so many local newspapers just rerun AP newswire, that's the take that many people are going to see.

Other sources got it correct. Buzzfeed -- a site that old school journalists used to love to mock -- did a hell of a lot more journalism than the AP:

The Guardian, a UK paper, got the story correct as well:

We've been noting in the past year how studies have shown that TV news is the key source for disinformation and how it doesn't tend to go viral on social media until after it appears on TV.

So can someone explain to me why it is everyone wants to rush out and blame social media for disinformation?

Filed Under: content moderation, disinformation, donald trump, elections, fact checking, jonathan lemire, media, social media, zeke miller
Companies: ap, associated press, buzzfeed, facebook, guardian, twitter

What The Election Means For Tech

from the take-your-pick dept

If Trump Wins...

For Republicans, bashing “Big Tech” has become as central to the Culture War as bashing the “Big Three Networks” once was. Demanding “neutrality” from social media companies has become what “net neutrality” has been for Democrats: the issue that sucks up all the oxygen in the room — except far more politically useful.

ISPs aren’t in the content moderation business, but social media would be unusable without it. (Just try using 8Kun or Gab!) Democrats have always struggled to identify real-world examples of net neutrality violations, but Republicans find “anti-conservative bias” everywhere, everyday. Content moderation at the scale of billions of posts is wildly imperfect, so anyone can find examples of decisions that seem unfair. But Republicans won’t settle for mere “neutrality.” They want to end Section 230’s legal protections for moderating hate speech, misinformation, using fake accounts to game algorithms, and most foreign election interference. All of these tend to benefit Republicans, so moderating them seems to prove the claim that “Big Tech” is out to get conservatives.

This won’t just be empty rhetoric anymore. Making every tech issue about “bias” will make most tech legislation impossible, but Trump won’t really need new legislation. He’ll finally weaponize the two independent agencies that regulate tech: the Federal Communications Commission and the Federal Trade Commission. Their current chairmen are traditional Republicans and serious lawyers uninterested in playing political games. But in August, Trump abruptly withdrew the renomination of Republican stalwart Mike O’Rielly after he obliquely criticized Trump’s Executive Order demanding political “neutrality” of social media. Trump quickly nominated the junior administration staffer behind the White House’s crackdown. No one should doubt that the next FCC and FTC chairmen will be Trump loyalists unencumbered by legal or constitutional scruples — and eager to turn the screws on Trump’s “enemies.” Each agency will become ever more a political battleground in which "tech" issues serve as proxy war for deeper cultural conflict.

If Biden Wins...

Trump called “Sleepy Joe” a tool of the “radical, socialist left.” Biden insisted his primary victory was a mandate for centrist pragmatism. Perhaps nowhere will Biden’s leadership be tested more than in tech policy.

Congress hasn’t passed substantial tech legislation since 1996 — and even that overhaul of the Communications Act (of 1934!) mostly reflected pre-Internet assumptions and fears. Congress used to make regular course-corrections through biennial reauthorization of federal agencies — but stopped in 1998, the year Congress became pure political spectacle. The FCC and FTC have since been left to improvise. The FCC’s long been a “junior varsity Congress” — same political baggage, no electoral accountability. The more serious FTC is trending that way. Each change of the White House means increasingly large shifts in tech policy.

These problems are as thorny as our broken judicial nomination process — and equally unlikely to be corrected through our broken legislative process. If Biden wants to be remembered for resolving them, he’ll need to do for tech what he’s proposed for the courts: convene an expert bipartisan commission with a clear mandate to develop once-in-a-century legislation, and then get ‘er done.

Biden’s nominations for FCC and FTC Chairs will reveal whether he’s genuinely interested in leading on tech — or content, like Trump and Obama, to exploit tech issues to excite his base. Strong Chairs in Biden’s mold could build Congressional consensus for significant, but viable, and therefore moderate, legislation. But if he picks bomb-throwers over problem-solvers, we’ll have four more years of the same digital culture wars — and creating a stable digital-era regulatory framework may have to wait several more presidencies.

If Trump Wins...

Republican fulmination about “anti-conservative bias” will continue to escalate. Don’t expect Republicans to pass any legislation. But they’ve always been more interested in stoking resentment among their base — and using threats of legal action to coerce large tech companies to change their content moderation practices in ways that help Republicans.

The FCC will proceed with a rulemaking to sharply limit Section 230’s protections. The only question is whether Ajit Pai issues a more restrained proposal on transparency mandates before he leaves the FCC. If not, Brendan Carr (or whoever Trump might appoint to replace Pai) could propose most or all of what NTIA has asked for. This dynamic will make it difficult for bipartisan legislation to pass amending 230, but something like the EARN IT Act and other amendments targeted at unlawful content might pass.

If Biden Wins…

Many Republicans will blame “Big Tech” for their losses, and claim that “election interference” (by Big Tech) delegitimized the new administration. They’ll do everything they can to deter content moderation beyond narrow categories of porn, dirty words, illegal content, promoting terrorism, self harm, and harassment (narrowly defined). Most Democrats want exactly the opposite: to coerce tech companies into moderating misinformation as a condition of maintaining their 230 protections. There simply is no common ground here.

So unless Democrats win enough Senate seats to abolish the filibuster, the debate over content moderation won’t be resolved anytime soon. Instead, Democrats will focus on liability for third-party content that isn’t moderated — which is what nearly all 230 cases are actually about. The EARN IT Act already has bipartisan support, as does making 230 protection contingent on removing unlawful content, and requiring websites to prove that their practices are “reasonable.” Each is deeply problematic, but practical details of real-world implementation don’t seem to matter much.

Biden has said he wants to “revoke” Section 230 “immediately,” but there’s little reason to expect repeal to happen. Instead, expect him to focus on “hold[ing] social media companies accountable for knowingly platforming falsehoods,” as a Biden spokesman put it after Trump’s Executive Order in May.

Here, more than in any other area, an expert commission is the only way out of this debate. The issue is simply too complicated — both legally and technically — for Congress to handle.

If Trump Wins...

Status quo: The FCC will maintain its hands-off approach to broadband regulation and net neutrality legislation will remain stalled in Congress. At most, a Democratic House and Senate might pass legislation purporting to revive the 2015 Open Internet Order, but Trump would veto it — and it’s far from clear that’s even a valid way to legislate. Instead, expect activists to focus on pushing for state-level broadband legislation. The courts are unlikely to allow that so long as the FCC retains broad preemption. But for some activists, the point has always been to keep the fight going forever, not to actually win in court.

If Biden Wins…

Even a centrist FCC Chair would face overwhelming activist pressure to revive the FCC’s 2015 Open Internet Order. But will they want to be remembered merely for playing yet another round of Title II ping-pong — or for finally convincing Congress to resolve this issue? There’s been a bipartisan consensus on the core of net neutrality since Republican Chairman Michael Powell gave his “Four Freedoms” speech in 2004. Democratic Chairman Genachowski pushed hard for legislation. He resorted to issuing the 2010 Open Order only after Republicans pulled out of legislative talks, calculating that they’d have more leverage after the midterms.

Resolving this issue could be the key to broader telecom reforms that Congress has been unable to tackle since passing the 1996 Telecom Act — a law based on markedly pre-digital assumptions about the future. Democrats should be careful not to overplay their hand: the D.C. Circuit decision upholding the FCC’s 2015 Order made clear that the FCC’s rules only applied to companies that held themselves out as offering “unedited” services anyway, meaning that ISPs could opt-out of Title II if they really wanted to.

If Trump Wins...

Expect more antitrust lawsuits like the Google suit. But if the Google suit is the strongest case this Administration has, they’re unlikely to win any significant remedies in court. And even if those suits do succeed, they’re unlikely to significantly address Republicans’ real concerns about “bias.” So don’t expect Republicans’ current “litigate but don’t legislate” approach to last long. Trump is famous for turning on a dime, and Congressional Republicans will face enormous pressure, especially if Democrats take the Senate, to “strengthen” the antitrust laws. Ken Buck’s minority report indicates where populist Republicans might find common ground with anti-corporate populists on the left.

If Biden Wins…

There’s enormous political pressure from all quarters to “do something” about antitrust. But don’t assume that legislation will be anywhere near as radical as what Congressional Democrats have proposed. Even Rep. David Cicilline’s much-hyped proposal to turn antitrust law on its head is careful to note that it represents only the views of his staff — not the Committee or its members.

It’s one thing for Democrats to talk about flipping the burden of proof in merger cases, but giving the government such leverage would have, for example, made it easy for Trump to force AT&T to spin off CNN — or to make editorial changes as implicit conditions of the Time Warner deal. Democrats pushing such ideas simply haven’t thought through the implications of what they’re proposing. Do they really want to make it easier for Republicans to use the antitrust laws as political weapons against the media, both new and old? A more considered, serious approach from the administration would focus on increased funding, more aggressive enforcement, and carefully targeted statutory changes.

If Trump Wins…

Status quo: Absent a court decision striking down state privacy laws on dormant commerce grounds — hard cases to win, which usually take years — Republicans will continue to insist on national privacy legislation to prevent every state from layering its own set of data rules on top of California’s. But Democrats have little political incentive to negotiate for any legislation that would displace California’s approach, which they claim as a win despite its glaring amateurishness and many practical pitfalls.

If Biden Wins…

If Democrats also take the Senate, they’ll have no excuse for not finally passing the comprehensive baseline privacy legislation they’ve talked about for years. Preemption should be an easier “give” for Democrats if they have more leverage in writing the legislation and are assured of handling at least the crucial first 3-4 years of enforcing the new law. Passing a federal law, even if it overlaps significantly with California’s, would allow the Administration to take credit for addressing the top complaint about “Big Tech”: not bigness per se, but a perceived lack of control over data collection.

If Trump Wins…

Status quo: The White House will raise legitimate concerns about Chinese tech companies giving the Chinese government access to private user data and influence over content moderation decisions. They’ll hype “deals” like TikTok’s partnership with Oracle, but Chinese entities will retain control. The only real winners will be American companies favored by the White House. It’ll be cronyist mercantilism veiled in talk of privacy and free speech. Republicans will increasingly find themselves in a quandary: the greatest beneficiaries of their push to hamstring American “Big Tech” companies will be Chinese companies that have achieved the scale necessary to expand into the U.S. market, as TikTok has done.

If Biden Wins…

Republicans will hammer the Biden Administration for any perceived weakness on China — especially when it comes to tech. Expect the White House to try to depoliticize CFIUS and treat the review process as more of a law enforcement exercise than policymaking driven by the White House. If Democrats are smart, they’ll try to insulate themselves from inevitable Republican attacks by drawing clearer statutory lines about foreign ownership of tech companies serving the U.S. market. The real test will come the first time CFIUS declines to take action against a Chinese company: will the White House intervene under political pressure?

If there’s no clear, quick election result, the stage will be set for the “mother of all battles” over online speech. If Trump and his supporters claim victory and insist that ballots that “changed the result on election night” must be fraudulent, “Big Tech” companies will apply warning labels to such content — and block paid ads making the same claims. Republicans will go absolutely ballistic. They’ll throw every legal theory they can against the wall. Don’t expect any of it to stick: website operators have a clear First Amendment right to reject, or put disclaimers around, third party content — just as newspapers do with letters to the editor. But that won’t stop Republicans from filing multiple lawsuits and complaints with federal regulators, including the Federal Election Commission. Expect the Trump administration to get creative in finding ways to “stick it” to tech companies in interregnum.

As ugly and politicized as tech policy is today, if tech policy becomes wrapped up in a “Florida recount but worse” fight, we’ll quickly come to look back at today’s tech policy battles as mild by comparison.

Filed Under: antitrust, china, donald trump, intermediary liability, joe biden, net neutrality, predictions, privacy, section 230, tech policy

Three TikTok Influencers Influenced A Judge To Block Trump's TikTok Ban

from the now-that's-influence dept

Remember Trump's ridiculous executive order to ban TikTok if it wasn't sold to an American company? Then there was a grifty non-deal in which Oracle agreed to host TikTok's new American subsidiary, though nothing about that deal appears to have been finalized, and the executive order was still somewhat in place. The first stage of the ban on the app was blocked by a judge in a lawsuit from TikTok itself. But that ruling did not (yet) block the second stage of the executive order which was set to go into effect this month.

So some good news: that too has been blocked thanks to a lawsuit from three TikTok influencers: Douglas Marland, Cosette Rinab, and Alec Chambers. The three of them filed their lawsuit in September, right after the details of the executive order came out. I don't know much about these influencers, but I will note they had some high-powered, big time lawyers working the case for them (including the firm the judge in this very case worked at prior to being put on the bench...).

The lawsuit noted that the three influencers were a comedian, a fashion creator and a musician "each of whom has developed a significant following by creating and posting content on TikTok." They argued that the executive order violated their 1st Amendment rights, creating prior restraint of their speech. As they correctly note, even on the flimsy "national security" basis that Trump, Wilbur Ross, and Mike Pompeo made in pushing through this executive order, you can't just ban speech broadly like that.

The Executive Order and implementing regulations violate the First Amendment because they are unconstitutionally overbroad and an impermissible prior restraint of speech. Purportedly issued to address national security concerns, the Executive Order approaches this alleged problem with a sledgehammer, not a scalpel, as the First Amendment requires. If in fact TikTok poses national security risks, the government must identify those risks and tailor the solution narrowly to address the risks, without unnecessarily trampling on Plaintiffs’ constitutional rights. The Executive Order and regulations fail to do so.

The DOJ insisted that this was all normal national security stuff (it's not) and that the 1st Amendment claims were "meritless." Honestly, I hope the DOJ lawyers who had to write this feel bad. It's such a weak argument that they have to know is utter bullshit. They claim that because they're only banning business transactions (that will make it impossible to use TikTok) that's not the same as actually banning TikTok. They also claim -- again, laughably -- that the ban is narrowly tailored to the national security interests of the government. They must have been laughing (or drinking heavily) when they wrote that.

Here, the Executive Order and Commerce Identification prohibit business-to-business economic transactions with a foreign entity and its subsidiaries based on the President’s national security determinations. The fact that those prohibitions may have adverse, downstream effects on a purported forum for Plaintiffs’ speech is legally irrelevant:

Let's just say the judge was not impressed. The opinion cuts through the DOJ's argument pretty thoroughly. Though Judge Wendy Beetlestone doesn't issue a full ruling on all of the arguments brought by the influencers, she notes that they have established a likelihood of success that the Commerce Department's planned implementation of the executive orders is beyond its legal authority (in legal talk: "ultra vires").

The judge essentially laughs at the DOJ for arguing that courts are not allowed to review decisions made by the Executive Branch under the IEEPA (the national security law that Trump tried to stretch to justify this executive order). The court points out that, contrary to the DOJ's beliefs, there are plenty of aspects of the IEEPA that courts absolutely can review -- including in this case. And, in reviewing it, it seems that the one who has exceeded their authority here is not the court, but the Commerce Department. Specifically, as was noted in the case brought by TikTok that barred the first part of the Commerce Department plan, the IEEPA has a very clear exemption: it can't be used to block "information or informational materials." And thus, the implementation here would do that, which is not allowed under the IEEPA.

The next question, then, is whether or not these influencers have shown that they will face irreparable harm if the block goes into effect. And the judge decides that the answer is yes:

Plaintiffs have established themselves as significant influencers based on their ability to engage large audiences on the TikTok platform. If the Commerce Identification goes into effect, Plaintiffs will lose the ability to engage with their millions of followers on TikTok, and the related brand sponsorships. According to Plaintiffs, each has tried and failed to establish a following and work as an influencer on competitive platforms. Shuttering TikTok would in fact shut down Plaintiffs’ influencing activities. This harm is not merely possible, but certain to occur after November 12.

Finally, the court notes that an injunction makes sense from a public interest standpoint:

The Government contends that the national security interests identified in the TikTok Executive Order and the Commerce Identification outweigh the harm Plaintiffs will suffer absent injunctive relief. But Congress has already performed a balancing act, and has determined that the President’s ability to exercise his IEEPA authority to respond to a national emergency does not extend to actions that directly or indirectly regulate the importation or exportation of informational materials.... Granting an injunction to prevent a violation of IEEPA’s informational materials exception would be consistent with this congressional determination.

Moreover, the Government’s own descriptions of the national security threat posed by the TikTok app are phrased in the hypothetical. The Government notes that TikTok’s parent company “ByteDance has significant and close ties to the CCP which could potentially be leveraged to further [the CCP’s] agenda.” It states that one of the risks posed by TikTok “is the possibility that the PRC government could . . . compel TikTok to provide systemic access to U.S. user’s sensitive personal information.” The Court cannot say the risk presented by the Government outweighs the public interest in enjoining the Commerce Identification, when Plaintiffs have established a clear likelihood that the Identification’s prohibitions contravene IEEPA.

And thus, the Commerce Department is blocked from implementing its planned rules to block TikTok.

There had been some chatter a few weeks back that since Trump got all the headlines he wanted out of his TikTok ban and the Oracle deal, he no longer much cares about it. The assumption was that the administration would likely just let the issue fade away, and now the court is helping that process move along. Of course, this also demonstrates what a preposterous, vindictive, unconstitutional, garbage move this whole thing was in the first place.

Filed Under: alec chambers, authority, commerce department, cosette rinab, donald trump, douglas marland, executive order, ieepa, influencers, information service, tiktok ban
Companies: tiktok

Nixon Scandal Resulted In A Law To Prevent The Politicization Of Antitrust Cases; Meanwhile Trump Uses His Politicized Antitrust Effort In Campaign Ad

from the different-times-apparently dept

Everyone knows about President Richard Nixon and the Watergate scandal, but you might now know as much about another huge scandal that preceded that one -- involving Nixon meddling, for political purposes, in an antitrust case by his Justice Department against a large "tech" company/conglomerate at the time. The case involved ITT trying to buy up some smaller companies, and the DOJ brought an antitrust case against them. The scandal part was that ITT approached the White House and worked out a deal: ITT would donate $400,000 (roughly $2.5 million today) to the 1972 Republican National Convention, and Nixon would get the DOJ to drop the case. Which he did. As the Nixon tapes eventually revealed, he called up then deputy Attorney General Richard Kleindienst and said:

“The I.T.T. thing — stay the hell out of it. Is that clear? That’s an order ... I do not want McLaren to run around prosecuting people, raising hell about conglomerates, stirring things up.”

Kleindienst's responded that he understood. Soon after he was nominated to be Attorney General, and during his Senate confirmation hearings he was asked whether the White House had interfered in the DOJ case against ITT, and he denied it. During Watergate, when the Nixon tapes came out, proving that Kleindienst lied, he ended up pleading guilty for lying to Congress.

The reason that the IIT quid pro quo deal with the White House was revealed was because a lobbyist for ITT named Dita Beard had sent around a memo with the details of the deal, which amusingly closed with "please destroy this, huh?" It wasn't destroyed, and instead was leaked to the Washington Post's Jack Anderson who sent his associate, a young Brit Hume, to Beard's house to verify the memo and get an explanation for it.

So, what's this historical story got to do with anything? Well, as we've discussed a few times now, current Attorney General Bill Barr's antitrust crusade against Google is clearly a politicized farce. Barr told the DOJ that they had to file before the election. DOJ staffers resigned from working on the case in protest. And the final case is stunningly weak.

But, after the ITT/Nixon debacle, Senator John Tunney introduced and got passed into law the Antitrust Procedures and Penalties Act, better known as the Tunney Act. It was designed to prevent another ITT/Nixon situation from happening again, by trying to stop the DOJ/White House from politicizing antitrust. The mechanism to do so is somewhat simplistic, but any settlement agreement is supposed to go before a judge to check to make sure the deal is in the public interest, rather than for shady political reasons. Parts of the law are often ignored in antitrust settlements, and it makes news when judges remember it exists.

However, it does seem notable that the whole intent of the law was to stop sketchy backroom politicization of antitrust activities by the White House telling the Justice Department what to do. And yet, now, we literally have a President of the United States directly politicizing his own DOJ's antitrust campaign. On Wednesday evening Trump tweeted out a weird campaign ad that rambles incoherently about "big tech" being bad, and how something needs to be done. Then he flat out admits that because he believes big tech is "against him" that's why "we" are going after Google:

Big tech has to be spoken to and probably in some form has to be stopped because they're taking away your rights. They're taking away things that nobody would have believed possible. So one of the things we're doing -- you saw what happened with Google -- with the lawsuit. One of the things we're doing is looking very powerfully and strongly at big tech. Go out and vote.

In any other administration in history, this alone would have been a scandal. The DOJ is supposed to be an independent agency from the President, and isn't supposed to bring cases based on political whims, such as tech companies "not liking" the President. And the President isn't supposed to be claiming direct credit for the lawsuit. Like others have pointed out, this is like Stupid Watergate. Things that Nixon did behind closed doors Trump is doing blatantly out in the open, and somehow that's why he gets away with it.

Here, he's flat out admitting that the DOJ cases against Google is not for legitimate reasons by for political ones, and he's using that case, for which he takes credit, in a literal campaign ad. If the courts actually cared about the Tunney Act (and a few judges out there might still believe in it) this would be yet another giant gaping hole in the case. Google now has more than enough evidence to highlight that the entire case was brought for political purposes, and not for legitimate ones.

The Nixon/ITT mess raised enough concerns that it caused some to talk about impeachment (of course that was then superseded by Watergate). Here, Trump is doing worse things in public, and it barely gets a shrug.

Filed Under: antitrust, doj, donald trump, motives, politicization, richard nixon, tunney act
Companies: google