“The law defined the term “controlled by a foreign adversary” to include not only companies owned wholly by Chinese entities but also one in which a citizen of an adversarial nation “directly or indirectly own[s] at least a 20 percent stake.” In other words, even if the overwhelming majority of a company’s shares were owned by Americans, it could be banned or forced to divest so long as the remaining shares were held by Chinese, Russian, or Iranian citizens.
In order to continue operating within the United States, the only recourse would be to sell TikTok to an American company by January 19, 2025—Joe Biden’s last full day in office.
TikTok and ByteDance sued, asking courts to declare the law unconstitutional. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban,” the lawsuit argued. Lawmakers’ “speculative concerns fall far short of what is required when First Amendment rights are at stake.”
The plaintiffs claimed that the law’s restrictions were subject to strict scrutiny—the highest standard of review that a court can apply to an action, reserved for potential burdens on fundamental constitutional rights. “The Act represents a content- and viewpoint-based restriction on protected speech,” the lawsuit said, and the law’s divest-or-be-banned provision constitutes “an unlawful prior restraint.”
…
“a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled against the plaintiffs, finding “the Government’s justifications are compelling” and that it did not violate the First Amendment for the state to single out one company for disfavored treatment.
“We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and its related entities, survive constitutional scrutiny,” Senior Judge Douglas Ginsburg wrote for the majority. “We therefore deny the petitions.”
Ginsburg notes that while the law does require “heightened scrutiny,” it satisfies the requirements of strict scrutiny because of how narrowly tailored it was: “The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the PRC.”
In fact, that “national security threat” was not very “well-substantiated” at all—but the court didn’t seem to mind.
“TikTok contends the Government’s content-manipulation rationale is speculative and based upon factual errors,” Ginsburg wrote, referring to lawmakers’ concerns that Beijing could manipulate content on TikTok to promote Chinese propaganda. “TikTok fails, however, to grapple fully with the Government’s submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States.” But “the Government is aware ‘that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China'” and “‘have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC.'”
…
“It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government’s lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok,” Ginsburg shrugs. “In any event, the Government reasonably predicts that TikTok ‘would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes’ in the United States.”
The court’s decision is yet another instance where vague claims of “national security” trump individuals’ First Amendment rights. Claiming that Congress has the authority to force a company to sell one of its holdings—not through an established power like antitrust, but simply because they don’t like how it could be used in the future—is not only a weak justification; it is a plainly unconstitutional one.”
Undersea cables that support much of the internet and services are vulnerable to Russian attack. Russia uses mostly a land based internet network, so is not similarly vulnerable. Russia can attack such cables with civilian vessels and then pretend like they had nothing to do with it.
“Two undersea internet cables in the Baltic Sea have been suddenly disrupted, according to local telecommunications companies, amid fresh warnings of possible Russian interference with global undersea infrastructure.
A communications cable between Lithuania and Sweden was cut on Sunday morning around 10:00 a.m. local time, a spokesperson from telecommunications company Telia Lithuania confirmed to CNN.
The company’s monitoring systems could tell there was a cut due to the traffic disruption, and that the cause was likely physical damage to the cable itself, Telia Lithuania spokesperson Audrius Stasiulaitis told CNN. “We can confirm that the internet traffic disruption was not caused by equipment failure but by physical damage to the fiber optic cable.”
Another cable linking Finland and Germany was also disrupted, according to Cinia, the state-controlled Finnish company that runs the link. The C-Lion cable – the only direct connection of its kind between Finland and Central Europe – spans nearly 1,200 kilometers (730 miles), alongside other key pieces of infrastructure, including gas pipelines and power cables.
The incidents came as two of the affected countries, Sweden and Finland, updated their guidance to citizens on how to survive war. Millions of households in the Nordic nations will be given booklets with instructions on how to prepare for the effects of military conflicts, communications outages and power cuts.”
“So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court — with three justices joining both decisions — holds that the First Amendment still imposes some limits on the government’s ability to control what content appears online.
Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.”
…
“That’s such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagan’s opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that “support Nazi ideology” or that “encourage teenage suicide and self-injury.”
In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.
As Kagan writes, the First Amendment does not permit the government to force platforms “to carry and promote user speech that they would rather discard or downplay.” She also cites several previous Supreme Court decisions that support this proposition, including its “seminal” decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over “the choice of material to go into” it.
Nothing in Kagan’s opinion breaks new legal ground — it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Court’s reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.
It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.”
“Carr blames the delay on “the addition of a substantive wish list of progressive ideas” to the approval process. In an April 2023 letter to Davidson, 11 Republican U.S. senators warned that “NTIA’s bureaucratic red tape and far-left mandates undermine Congress’ intent and would discourage participation from broadband providers while increasing the overall cost of building out broadband networks.”
Among several examples, the senators noted that NTIA’s BEAD proposal “requires subgrantees to prioritize certain segments of the workforce, such as ‘individuals with past criminal records’ and ‘justice-impacted […] participants.'” The infrastructure law that authorized the program merely required contractors to be “in compliance with Federal labor and employment laws.”
The previous year, in a letter to Commerce Secretary Gina Raimondo, Republican senators warned that the NTIA’s proposed BEAD rollout “creates a complex, nine-step, ‘iterative’ structure and review process that is likely to mire State broadband offices in excessive bureaucracy and delay connecting unserved and underserved Americans as quickly as possible.”
In practice, this is exactly what’s happening: Multiple representatives from the telecommunications industry told MinnPost this week that they had no interest in applying for a piece of Minnesota’s $652 million in BEAD grants. Brent Christensen, president and CEO of Minnesota Telecom Alliance, which represents 70 Minnesota telecom companies, said, “None of them would bid for the federal grants because of the regulations that would come with it—especially the requirement to provide low-cost services to low-income households in exchange for grants that would allow internet providers to build out their networks.”
MinnPost noted that new state laws also “requir[e] companies who receive state grants to pay workers a ‘prevailing wage,’ a basic hourly rate paid on public works projects to a majority of workers in a particular occupation.” Since the federal government’s prevailing wage list does not include telecom workers, “companies in Minnesota would have to pay more because they would have to use a similar, but higher-paying, classification.”
“As Corn-Revere points out, “adopted in 1996, Section 230 was proposed as a way to counter efforts to censor internet speech.” Prior to its passage, online platforms were treated as publishers of material posted on their sites if they made any attempt at moderation. They were incentivized to allow free-for-alls, or else scrutinize all content for legal liability—or not allow third parties to post anything at all.
Included in the Communications Decency Act, Section 230’s important provisions survived the voiding of most of that law on constitutional grounds. It reads, in part: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Those are the 26 words credited as creating the internet by Jeff Kosseff’s 2019 book. They also take the blame for what so many politicians hate about the online world.”
…
“”For the biggest players, more carefully policing content would probably mean bolstering the ranks of thousands of hired moderators and facing down far more lawsuits,” added Shields and Brody. “For smaller players, the tech industry argues, it could prove ruinous.””
…
“”The law is not a shield for Big Tech,” point out the Electronic Frontier Foundation’s (EFF) Aaron Mackey and Joe Mullin in defending Section 230. “Critically, the law benefits the millions of users who don’t have the resources to build and host their own blogs, email services, or social media sites, and instead rely on services to host that speech.””
“Without the third-party cookie, however, businesses have less of an idea of who their audience is. That can degrade their ability to make money from advertising, making it harder to publish content for free without forcing users to hand over their emails or phone numbers.”
…
“As a result, websites that rely on advertising on the open internet may struggle to exist. And users may be confronted with even more ads that they are less interested in as sites try to make up for the loss in value by churning out more ad volume.”
…
“The end of third-party cookies could also in some ways worsen consumer privacy, experts contend, by further normalizing granular data collection. As more businesses steer people to log in to replace the data gathering that the cookie enabled, user profiles will become more detailed and centralized, essentially trading one paradigm of monitoring for another.”
“Google’s revenue-sharing deal with Apple was a major part of the trial because Apple is believed to get the bulk of what Google pays out in those agreements. Having a default search placement on Apple devices, which make up roughly half of the smartphone market in the US, is extremely important to Google. We’ve known for years that Google pays Apple for that default placement — this also stops Apple from developing its own search engine — but that’s about it. While Google tried to keep virtually everything about the deal away from the public, we still got a few new details.
In an apparent slip-up, Google’s own witness in the waning days of the trial told us how much of Google’s ad revenue Apple gets: 36 percent for searches done on its Safari browser. The monetary value of that 36 percent is still a mystery. Judge Mehta did not disclose how big Apple’s slice of the $26.3 billion pie is, allowing the DOJ only to say it’s “more than $10 billion.” But the New York Times, citing internal Google sources, put it at $18 billion.”
“We didn’t just find out some of Google’s secrets; a few things about Apple came out, too. Apple’s senior vice president John Giannandrea testified that his company talked to Microsoft about buying Bing in 2018. Apple ultimately decided against it, but not before using the possibility as leverage in its search default negotiations with Google, something Microsoft is still pretty sore about. Apple executive Eddy Cue testified that the company chooses Google to be the default search because it believes Google is the best for its users. But speaking of Bing …”
“Multiple Microsoft executives, including CEO Satya Nadella, testified that Microsoft really, really wanted to make Bing the default search on Apple devices, to the point where it was willing to lose billions of dollars a year for the privilege. Samsung and Verizon, the trial also revealed, essentially refused to even negotiate with Microsoft over changing their search defaults to Bing. Perhaps they were thinking of Mozilla’s experience switching from Google to Yahoo. Mozilla CEO Mitchell Baker testified that Yahoo offered more money and fewer ads, so Mozilla’s Firefox browser switched the default from Google to Yahoo in 2014. Mozilla switched back to Google a few years later, which Baker attributed to Google’s search being better for its users, echoing the point that Google emphasized in its defense.”