President Trump issued an executive order Friday giving ByteDance 90 days to either sell or spin off its TikTok business in the US.
“There is credible evidence that leads me to believe that ByteDance … might take action that threatens to impair the national security of the United States,” Trump wrote in the order, which references national security concerns. ByteDance is based in China, and the Trump administration has recently suggested that the company could share information about Americans with the Chinese government. The company has denied it does so.
The move gives TikTok a bit of a reprieve from Trump’s August 6th order that would have blocked all US transactions with ByteDance, TikTok’s parent corporation, due to what the president referred to as an effort to “address the national emergency with respect to the information and communication technology supply chain.” Originally, TikTok had a September 20th deadline; now, it has until November 12th.
The latest executive order requires ByteDance to destroy any TikTok data from US users, and report to the Committee on Foreign Investment in the United States once all the data has been destroyed. ByteDance must also destroy any data collected from TikTok precursor app Musical.ly, which the company bought in 2017. The original order with the 45-day deadline didn’t include those requirements.
“As we’ve said previously, TikTok is loved by 100 million Americans because it is a home for entertainment, self-expression, and connection,” ByteDance said in an email statement to The Verge on Friday. “We’re committed to continuing to bring joy to families and meaningful careers to those who create on our platform for many years to come.”
Microsoft has been in talks to acquire TikTok — though co-founder Bill Gates has since called the potential deal a “poisoned chalice” — and reports last week suggested Twitter also was interested. It’s not clear how Friday’s executive order affects a potential sale, but Microsoft said it expected to complete the discussions “no later than September 15th, 2020.” Theoretically, Trump’s original timeline would have been enough for Microsoft, so we’re curious if anything has changed.
Trump will prohibit transactions with Bytedance beginning September 20 in apparent TikTok ban
President Trump has signed a new executive order which will block all transactions with Bytedance, TikTok’s parent corporation, in an effort to “address the national emergency with respect to the information and communication technology supply chain.” It isn’t effectively immediately, but has a 45 day deadline.
“The spread [of apps controlled by the Chinese government] continues to threaten the national security, foreign policy, and economy of the United States,” the order reads. “The United States must take aggressive action against the owners of TikTok to protect our national security.”
A parallel order banned transactions with WeChat, a popular texting app in China that maintains a small user base in the US.
The move comes after months of escalating tensions, which saw Secretary of State Mike Pompeo and others at the White House warn that TikTok presented a national security threat because of its Chinese ownership. On Friday, President Trump told reporters aboard Air Force One that he was preparing to sign some sort of order banning the app.
Those efforts have been complicated by discussions of a potential sale to Microsoft. On Sunday, Microsoft CEO Satya Nadella confirmed that he had spoken with President Trump about potentially acquiring the portions of TikTok based in the US, Canada, Australia and New Zealand, although huge portions of the deal remain in flux. The company also cautioned that discussions were still tentative and “there can be no assurance that a transaction which involves Microsoft will proceed.”
Microsoft pledged to conclude discussions by September 15th, a date that has been echoed by President Trump. Trump’s new order is set to take effect 45 days after its release or September 20th — just after the deadline set for negotiations in the Microsoft deal.
In both orders, the president names the International Emergency Economic Powers Act as authority for the move, as well as the National Emergencies Act — effectively naming TikTok’s continued operation within the United States as a national emergency. Such a move is highly unusual, and will likely be subject to a legal challenge.
The executive branch has the power to levy sanctions against individuals and corporations by placing them on the “entity list,” as the US did against Huawei and ZTE last year. But such sanctions are typically put in place by the Commerce Department rather than the White House, and subject to a specific rule-making procedure that seems to have been short-circuited by the surprise executive order.
The President also has the power to force the divestiture of US companies from foreign ownership through the Council on Foreign Investment in the United States (or CFIUS). But doing so also requires a specific process that seems to have been discarded in favor of a broader executive order.
It’s unclear how the order will affect TikTok’s ability to operate in the short term. Unlike Huawei and ZTE, the company does not require licenses to to operate its network, and nothing in the order seems to require app stores to cease hosting the app. However, it explicitly covers subsidiaries of Bytedance — specifically the US-based TikTok division — and will apply to any and all financial transfers to and from those subsidiaries. As a result, TikTok is likely to seek a stay of the order in court, or be forced to abruptly discontinue services as it takes effect.
Facebook and Twitter remove manipulated video from president’s accounts after DMCA complaint
Facebook has removed a manipulated video posted on President Trump’s account after receiving a copyright complaint from the rights owners.
The manipulated video shows a black toddler running away from a white toddler, with a CNN chyron reading “terrified toddler runs from racist baby.” The original video, which went viral last year, sees the total opposite, with the two toddlers running toward each other on the sidewalk so they can hug. The video was created by Carpe Donktum, a prolific pro-Trump meme creator who the president has amplified in the past, and uploaded to both Facebook and Twitter. It arrives as protests across the country fighting against systemic racism in the United States, and on the eve of Juneteenth — a day that many people celebrate as the day slavery ended.
Facebook took the video down after “one of the children’s parents lodged a copyright claim,” according to CNN. A Facebook representative confirmed to The Verge that a complaint was received by the rights holder. It had more than four million views by the time Facebook removed it, according to CNN. Jukin Media, a third-party company that often acquires the rights from people to viral videos, told CNN that “neither the video owner nor Jukin Media gave the President permission to post the video, and after our review, we believe that his unauthorized usage of the content is a clear example of copyright infringement without valid fair use or other defense.”
“We received a copyright complaint from the rights holder of this video under the Digital Millennium Copyright Act and have removed the post,” Andy Stone, a Facebook spokesperson, told The Verge.
Jukin Media has also filed a copyright claim complaint to Twitter, according to a statement posted on the company’s account. While Twitter labeled the video as “manipulated media,” it was still active on the President’s account until Friday evening. It appeared to be the first time one of Donktum’s edits has received the “manipulated media” tag, which is usually found on deepfakes. The video has been viewed nearly 20 million times at the time of this writing. It’s still unclear whether Donktum or the president’s team will argue the meme is transformative enough that it’s allowed to exist under fair use.
“We have submitted a DMCA takedown notice on behalf of the video’s creator, and in accordance with Twitter’s policy,” Jukin’s statement reads. “Separately, in no way to we support or condone the manipulate video or the message it conveys. We hope and expect Twitter will take swift action to remove the video.”
On Friday evening, Twitter disabled the video. The video was taken down due to a DMCA notice from the rights holder.
“Per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives,” a Twitter spokesperson told The Verge.
Update June 19th 5:40pm ET: Updated to include comment from Twitter and note it was removed after a copyright complaint. The headline has also been changed to reflect the update.
Social media bias lawsuits keep failing in court
Social media sites can legally ban users for nearly any reason. They can ban users for off-color jokes. They can ban users for being white supremacists. They can ban users for totally arbitrary and inscrutable reasons. If you sue over a Twitter or Facebook ban, you will almost certainly lose. Despite this, people keep filing lawsuits claiming they’ve been censored on social media — and today, courts handed down another defeat.
An appeals court in Washington, DC just rejected a complaint by Laura Loomer, the conservative activist who was banned from Twitter for anti-Muslim tweets and later chained herself to the company’s headquarters in protest. Loomer argued that Facebook, Google, Twitter, and Apple had all colluded to suppress conservative content, violating Loomer’s First Amendment rights in the process. The court disagreed and threw out the suit.
It’s convenient timing, given that President Donald Trump has spent the past day excoriating Twitter for its alleged bias. Trump threatened Twitter after it applied a fact-checking label to his tweets, threatening some kind of unknown action to “strongly regulate” or close down sites that “silence conservatives’ voices.”
Anti-bias lawsuits — where people argue Twitter, Google, or Facebook are discriminating against them for political reasons and legally obligated to carry their speech — offer an illuminating look at why Trump’s boldest threats are probably bluster. Courts across the country have repeatedly defended social networks’ rights to ban at will. If Trump wanted to shut down sites that went against his wishes, he’d need to basically upend this precedent.
So let’s look at the cases.
Charles C. Johnson v. Twitter
Conservative blogger and activist Charles C. Johnson has been embroiled in multiple lawsuits, one of which accused Twitter of violating his free speech rights when it banned him in 2015. In mid-2018, a California court granted Twitter’s request to dismiss the complaint, finding that the rights at stake were Twitter’s, not Johnson’s. “It is well established that the constitutional right to free speech includes the right not to speak,” read its ruling. Twitter’s rules “clearly state that users may not post threatening tweets, and also that [Twitter] may unilaterally, for any reason, terminate a user’s account. The rules reflect [Twitter’s] exercise of free speech.”
Jared Taylor v. Twitter
Fringe far-right figure Jared Taylor, a white nationalist, sued Twitter for banning him in 2018 — claiming he’d been discriminated against because of his racist viewpoints. California judge Harold Kahn gave Taylor a surprising legal win when he allowed the case to proceed, calling it a “classic public interest lawsuit.” But Taylor’s luck didn’t last. As legal expert Eric Goldman discusses here, a California appeals court said the exact logic of Taylor’s suit didn’t matter. Twitter’s moderation choices were protected under Section 230 of the Communications Decency Act.
Craig Brittain v. Twitter
“Revenge porn mogul” Craig Brittain, who ran for an Arizona Senate seat in 2018, was also angry at Twitter for banning him. Brittain hit Twitter with a laundry list of claims, alleging everything from First Amendment violations to infliction of emotional distress. A California court found that Brittain’s claims hinged on treating Twitter as a publisher of his content and Section 230 clearly contradicted these claims.
Federal Agency of News v. Facebook
One unusual political lawsuit came from the Federal Agency of News (FAN), which was allegedly tied to the Russian Internet Research Agency “troll farm.” Facebook removed FAN’s page along with a lot of other propaganda in 2016. FAN then sued Facebook for First Amendment violations and breach of contract. Judge Lucy Koh slapped down the case once in 2019 and again in early 2020, following much of the reasoning described above. Although, as Goldman’s blog details, FAN had some particularly weird misconceptions about internet law, including the idea that Section 230 had an exception for political speech. For the record, it doesn’t.
Prager University v. Google
Conservative advocacy group Prager University filed one of the best-known bias suits against Google in 2017, alleging that YouTube had unfairly restricted access to some of its videos. Like Loomer, PragerU accused Google of violating the First Amendment. Among other claims, it also said Google had violated the Lanham Act with false advertising.
Neither of these arguments worked. California federal judge Lucy Koh dismissed the case in 2018, saying Google and YouTube were “private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website,” not federal agencies or companies that functioned as an official arm of the government.
An appeals court upheld the dismissal in February of this year, saying PragerU’s censorship claim “faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government — not a private party — from abridging speech.”
Tulsi Gabbard v. Google
At least one major Democratic politician has filed an anti-bias suit as well. Presidential candidate Tulsi Gabbard sued Google in 2019 after the company briefly suspended her ad account, alleging the company was trying to undercut her bid for the party’s nomination.
This suit got a blisteringly snarky dismissal in March. California district Judge Stephen Wilson noted that “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government.” He cited the case against PragerU as legal precedent, concluding again that private web platforms aren’t held to the same standards as governments.
Robert Wilson v. Twitter
In one very recent case, Twitter user Robert Wilson claimed he was banned for “freedom of speech and or heterosexual expressions” and sued for civil rights and First Amendment violations. As expected, this didn’t fly. A West Virginia court ruled against this argument just a few weeks ago, saying Twitter was clearly a private forum. “That private social media companies now host platforms which imitate the functions of public forums — in many respects more effectively than the traditional public forums of government-owned sidewalks, streets, and public parks — does not mean that the entities are state-actors,” read the ruling.
Laura Loomer v. Google, Facebook, Twitter, and Apple
Laura Loomer made one of the most complicated cases against Silicon Valley. She sued alongside conservative legal group Freedom Watch in 2018, claiming that four of the tech world’s biggest companies had violated antitrust law by conspiring to suppress conservative content on their platforms, as well as violated the First Amendment by acting as “quasi-state actors.”
The companies failed to get the suit thrown out immediately, with the DC Circuit Court of Appeals saying the claims weren’t clear enough to dismiss out of hand. But today, the actual ruling was squarely against Loomer. “The Plaintiffs raise non-trivial concerns,” the court concluded. But they “failed to state viable legal claims” to support them — including evidence that a conspiracy existed or that private websites were public spaces that operated like a government.
…and many more.
People have been suing internet platforms for banning them since long before Trump took office; back in 2009, for instance, a PlayStation Network user sued on the grounds that Sony had created a “company town.” (The user lost.) Courts have overwhelmingly concluded that social media networks can ban, limit, or otherwise suppress users’ posts.
Conversely, government figures like Trump actually face strict rules about blocking users. Last year, a court required Trump to unblock Twitter accounts that had criticized him, determining that his Twitter account specifically — not the site as a whole — constituted a public space protected by the First Amendment. Other public officials have lost similar lawsuits from constituents.
Why do these suits keep getting filed? Some look like publicity stunts: activists and politicians can raise their profile by going after a big company like Google or Twitter, even if they’re unlikely to win. Some low-profile cases come from private citizens who seem genuinely confused about the law — a situation exacerbated by politicians pushing misinformation about sites’ legal risks. And other people look for novel arguments that might get past a judge, hitting companies with a scattershot barrage of claims.
But if Trump wants Twitter legally barred from labeling his tweets or banning his supporters’ accounts — which is what his tweets imply — he’ll be changing a widely acknowledged legal standard.
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