Federal Judge Postpones Trump Ban on Popular App TikTok

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A federal judge on Sunday postponed a Trump administration order that would have banned the popular video sharing app TikTok from U.S. smartphone app stores around midnight. A more comprehensive ban remains scheduled for November, about a week after the presidential election. The judge, Carl Nichols of the U.S District Court for the District of Columbia, did not agree to postpone the later ban. The ruling followed an emergency hearing Sunday morning in which lawyers for TikTok argued that the administration’s app-store ban would infringe on First Amendment rights and do irreparable harm to the business. Earlier this year, President Donald Trump declared that TikTok was a threat to national security and that it must either sell its U.S. operations to American companies or be barred from the country. TikTok, owned by Chinese company ByteDance, is scrambling to firm up a deal tentatively struck a week ago in which it would partner with Oracle, a huge database-software company, and Walmart in an effort to win the blessing of both the Chinese and American governments. In the meantime, it is fighting to keep the app available in the U.S. Judge Nichols did not explain his reasoning publicly, instead filing his judicial opinion under seal. Initially, both the U.S. government’s brief in the case and the entire Sunday morning hearing were also to be sealed, although the court later relented.The U.S. head office of TikTok is seen in Culver City, California, Sept. 15, 2020.In arguments to Judge Nichols, TikTok lawyer John Hall said that TikTok is more than an app, saying it functions as a “modern day version of a town square.” “If that prohibition goes into effect at midnight, the consequences immediately are grave,'” Hall said. “It would be no different than the government locking the doors to a public forum, roping off that town square” at a time when a free exchange of ideas is necessary heading into a polarized election.  TikTok lawyers also argued that a ban on the app would affect the ability of tens of thousands of potential viewers and content creators to express themselves every month and would also hurt its ability to hire new talent. In addition, Hall argued that a ban would prevent existing users from automatically receiving security updates, eroding national security.  Justice Department lawyer Daniel Schwei said that Chinese companies are not purely private and are subject to intrusive laws compelling their cooperation with intelligence agencies. The Justice Department has also argued that economic regulations of this nature generally are not subject to First Amendment scrutiny.  “This is the most immediate national security threat,” Schwei argued. “It is a threat today. It is a risk today and therefore it deserves to be addressed today even while other things are ongoing and playing out.” Schwei also argued that TikTok lawyers failed to prove the company would suffer irreparable business harm. The Justice Department laid out its objections to TikTok’s motion for a temporary injunction in a brief under seal, but it was unsealed in redacted form to protect confidential business information. Trump set the process in motion with executive orders in August that declared TikTok and another Chinese app, WeChat, threats to national security. The White House says the video service is a security risk because the personal information of its millions of U.S. users could be handed over to Chinese authorities. Trump has given tentative approval to a proposed deal in which Oracle and Walmart could initially own a combined 20% of a new U.S. entity, TikTok Global. But Trump also said he could retract his approval if Oracle doesn’t have “total control” of the company; the president did not explain what he meant by that. The deal remains unfinalized, and the two sides have also appeared at odds over the corporate structure of TikTok Global. ByteDance said last week that it will still own 80% of the U.S. entity after a financing round. Oracle, meanwhile, put out a statement saying that Americans “will be the majority and ByteDance will have no ownership in TikTok Global.” Government-owned media in China have criticized the deal as bullying and extortion. ByteDance said Thursday it has applied for a Chinese technology export license after Beijing tightened control over exports last month in an effort to gain leverage over Washington’s attempt to force an outright sale of TikTok to U.S. owners.  China’s foreign ministry has said the government will “take necessary measures” to safeguard its companies but gave no indication what steps it can take to affect TikTok’s fate in the United States. TikTok is also asking a federal court to declare Trump’s Aug. 6 executive order unlawful. The Chinese firm said the president doesn’t have the authority to take these actions under the national-security law he cited; that the ban violates TikTok’s First Amendment speech rights and Fifth Amendment due-process rights; and that there’s no authority for the restrictions because they are not based on a national emergency. 

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TikTok Fate in the Balance as Judge Weighs App Store Ban

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Lawyers for TikTok pleaded with a U.S. federal judge on Sunday to delay the Trump administration’s ban of the popular video sharing program from app stores set to take effect at the end of the day, arguing the move would infringe on First Amendment rights and do irreparable harm to the business.The 90-minute hearing came after President Donald Trump declared this summer that TikTok was a threat to national security and that it either sold its U.S. operations to U.S. companies or the app would be barred from the country.TikTok, owned by Chinese company ByteDance, is scrambling to firm up a deal tentatively struck a week ago in which it would partner with tech company Oracle and retailer Walmart and that would get the blessing of the Chinese and American governments. In the meantime, it is fighting to keep the app available in the United States.The ban on new downloads of TikTok, which has about 100 million users in the U.S, was delayed once by the government. A more comprehensive ban is scheduled for November, about a week after the presidential election. Judge Carl Nichols of the U.S. District Court for the District of Columbia said he would make a decision by late Sunday, leaving TikTok’s fate hanging.In arguments to Nichols, TikTok lawyer John Hall said that TikTok is more than an app but rather is a “modern day version of a town square.””If that prohibition goes into effect at midnight, the consequences immediately are grave,'” Hall said. “It would be no different than the government locking the doors to a public forum, roping off that town square” at a time when a free exchange of ideas is necessary heading into a polarized election.  TikTok lawyers also argued that a ban on the app would stop tens of thousands of potential viewers and content creators every month and hurt its ability to hire new talent. In addition, Hall argued that a ban would prevent existing users from automatically receiving security updates, eroding national security.  Justice Department lawyer Daniel Schwei sought to undercut TikTok lawyers’ argument, saying that Chinese companies are not purely private and are subject to intrusive laws compelling their cooperation with intelligence agencies. The Justice Department has also argued that economic regulations of this nature generally are not subject to First Amendment scrutiny. Plaintiffs can’t claim a First Amendment right in hosting TikTok itself as a platform for others’ speech because merely hosting a platform is not an exercise of the First Amendment, the Justice Department contends.  “This is the most immediate national security threat,” Schwei argued. “It is a threat today. It is a risk today and therefore it deserves to be addressed today even while other things are ongoing and playing out.”Schwei also argued that TikTok lawyers failed to prove it would suffer irreparable business harm.The Justice Department laid out its objections to TikTok’s motion for a temporary injunction in a brief under seal, but it was unsealed in redacted form to protect confidential business information.Trump set the process in motion with executive orders in August that declared TikTok and another Chinese app, WeChat, as threats to national security. The White House says the video service is a security risk because the personal information of its millions of U.S. users could be handed over to Chinese authorities.Trump has said he would approve a proposed deal in which Oracle and Walmart could initially own a combined 20% of a new U.S. entity, TikTok Global. Trump also said he could retract his approval if Oracle doesn’t have “total control.”The two sides of the TikTok deal have also appeared at odds over the corporate structure of TikTok Global. ByteDance said last week that it will still own 80% of the U.S. entity after a financing round. Oracle, meanwhile, put out a statement saying that Americans “will be the majority and ByteDance will have no ownership in TikTok Global.”Chinese media have criticized the deal as bullying and extortion, suggesting that the Chinese government is not happy with the arrangement. ByteDance said Thursday it has applied for a Chinese technology export license after Beijing tightened control over exports last month in an effort to gain leverage over Washington’s attempt to force an outright sale of TikTok to U.S. owners.  China’s foreign ministry has said the government will “take necessary measures” to safeguard its companies but gave no indication what steps it can take to affect TikTok’s fate in the United States.TikTok is suing the U.S. government over Trump’s Aug. 6 executive order, saying it is unlawful. So are resulting Commerce Department prohibitions that aim to kick TikTok out of U.S. app stores and, in November, essentially shut it down in the U.S., it claimed.The Chinese firm said the president doesn’t have the authority to take these actions under the national security law he cited, that the ban violates TikTok’s First Amendment speech rights and Fifth Amendment due-process rights, and that there’s no authority for the restrictions because they are not based on a national emergency.

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US Imposes Curbs on Exports by China’s Top Chipmaker SMIC

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The U.S. government has placed new export restrictions on China’s most advanced maker of computer chips, citing an “unacceptable risk” that equipment sold to the country’s Semiconductor Manufacturing International Corp. (SMIC) could be used for military purposes.According to a letter Friday by the Commerce Department, American suppliers of certain technology products to SMIC will need to apply for individual licenses before they can export to the Chinese company.The U.S. has cut off China’s telecom giant Huawei from essential supplies of semiconductors since September 15. As the requirement takes effect, SMIC becomes the second leading Chinese technology company to face U.S. trade sanctions.When asked for comment, the Chinese chipmaker told Reuters it had not received any official notice of the restrictions from Washington and said it had no ties with the Chinese military.’No relationship’ with militaryLast month, after the Trump administration reportedly was considering adding SMIC to a trade blacklist, the company denied its technology was for military use. “The company manufactures semiconductors and provides services solely for civilian and commercial end-users and end-uses. We have no relationship with the Chinese military,” SMIC said in a statement.The Chinese company indicated last month that in order to avoid U.S. sanctions, it was willing to abide by the American rules and stop selling chips to Huawei.For all of China’s efforts to become a global leader in high technology, the factory of the world is yet not able to manufacture top-level contenders in one crucial area — the microchip, the nervous system that runs just about every electronic device. Last year, China imported more than $304 billion in computer chips, more than it spent on crude oil.SMIC’s best manufacturing process is believed to be able to make 14-nanometer microchips, which are several generations behind Samsung and Taiwan Semiconductor Manufacturing Co., which already makes 5-nanometer chips.  Even for those less advanced chips, SMIC still heavily relies on American technology and equipment.

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Justice Department Asks Judge to Allow US to Bar WeChat from US App Stores

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The U.S. Justice Department asked a federal judge in San Francisco on Friday to allow the government to bar Apple Inc. and Alphabet Inc.’s Google from offering WeChat for download in U.S. app stores pending an appeal.The filing asked U.S. Magistrate Judge Laurel Beeler to put on hold her preliminary injunction issued Saturday. That injunction blocked the U.S. Commerce Department order that was set to take effect late September 20 and that would also bar other U.S. transactions with Tencent Holding’s WeChat, potentially making the app unusable in the United States.Beeler responded late Friday by setting a hearing for October 15 on the motion but said she could potentially hold it on “a tighter time period.”The Justice Department filing said Beeler’s order was in error and “permits the continued, unfettered use of WeChat, a mobile application that the Executive Branch has determined constitutes a threat to the national security and foreign policy of the United States.”Tencent had put forward a “mitigation proposal” that sought to create a new U.S. version of the app, deploy specific security measures to protect the new apps source code, partner with a U.S. cloud provider for user data storage, and manage the new app through a U.S.-based entity, the filing said.However, its proposal still allowed Tencent to retain ownership of WeChat and did not address U.S. concerns over the company, it added.Tencent declined to comment.Lawyers for U.S. WeChat Users Alliance, the group behind the legal challenge to the WeChat ban, questioned the urgency of the government’s request, noting the time it took for the government to seek a stay.”The government’s decision to sit tight for five days shows that there is no emergency,” they wrote.In support of its argument, the Justice Department made public portions of a September 17 Commerce Department memo outlining the WeChat transactions to be banned.”The WeChat mobile application collects and transmits sensitive personal information on U.S. persons, which is accessible to Tencent and stored in data centers in China and Canada,” the memo said. Beeler said WeChat users who filed a lawsuit “have shown serious questions going to the merits of the First Amendment claim.”The Justice Department filing said, “The First Amendment does not bar regulation of WeChat simply because it has achieved the popularity and dependency sought by (China), precisely so it can surveil users, promote its propaganda, and otherwise place U.S. national security at risk.”WeChat has had an average of 19 million daily active users in the United States, analytics firms Apptopia said in early August. It is popular among Chinese students, Americans living in China and some Americans who have personal or business relationships in China.Beeler wrote “certainly the government’s over-arching national-security interest is significant. But on this record — while the government has established that China’s activities raise significant national security concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.”WeChat is an all-in-one mobile app that combines services similar to Facebook, WhatsApp, Instagram and Venmo. The app is an essential part of daily life for many in China and boasts more than 1 billion users.TikTok on Wednesday sought a similar preliminary injunction from a U.S. judge in Washington. A judge on Friday said he would hold a hearing Sunday morning about whether to halt the U.S. app store ban on new TikTok downloads set to take effect Sunday night.  

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Long-awaited Facebook Oversight Board to Launch in October

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Facebook’s highly anticipated independent oversight board, a group that will be empowered to overrule the company’s leadership on issues pertaining to the platform’s content moderation decisions, plans to launch in October, just in time for the November U.S. presidential election.The board was created by Facebook after the platform was criticized for its handling of problematic content, most recently a backlash over its decision to take no action in response to posts from U.S. President Donald Trump containing misinformation about mail-in voting and inflammatory language directed toward the Black Lives Matter anti-racism protests that erupted over the summer.Other platforms that contain user-generated content, such as Twitter, have taken measures to combat misinformation online, including attaching fact-checking warning labels to posts.Facebook has not yet announced whether the board will hear cases related to the election. Representatives from the company said that the board did not consider cases involving Trump’s posts in its preliminary hearings.  Reviewing removed postsMembers of the oversight board will review appeals only over posts that Facebook has taken down initially, instead of taking into consideration content that the company leaves up. It will also deal only with individual posts that fall under the areas where Facebook exercises editorial control.Content that is regulated by Facebook includes algorithms that shape how much distribution a post receives, taking down or leaving up Facebook groups, pages, and events, and whether to leave specific pieces of content up on the site.The board has been harshly criticized for starting by reviewing appeals concerning posts that were taken down, which experts say will have little impact on addressing problems like misinformation and hate speech that are rampant on the platform. Critics say that the long-awaited board has not moved fast enough to curb these issues before the election.  Prioritizing casesAccording to the board’s website, the criteria for the prioritization of cases has not been decided and is being debated by the board’s 20 members. While tens of thousands of cases are expected to be presented to the board, leaders say that the board will take only a small number of cases each year, most likely in the “tens or hundreds.”Board members include lawyers, academics, journalists and policy experts from around the world, who collectively speak 27 different languages and represent having lived in 29 different countries.Preparation leading up to the board’s launch includes educating members on Facebook’s community standards, international human rights law and receiving technical training on case management rolls that will allow members to receive and consider appeals.

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Apple Critics Form Coalition to Challenge App Store Fees

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A group of Apple Inc.’s critics, including Spotify Technology SA, Match Group Inc. and “Fortnite” creator Epic Games, have joined a nonprofit group that plans to advocate for legal and regulatory action to challenge the iPhone maker’s App Store practices. Apple charges a commission of between 15% and 30% for apps that use its in-app payment system and sets out extensive rules for apps in its App Store, which is the only way Apple allows consumers to download native apps to devices such as the iPhone. Those practices have drawn criticism and formal legal complaints from some developers. FILE – Apple CEO Tim Cook speaks during an announcement of new products at the Apple Worldwide Developers Conference in San Jose, Calif., June 4, 2018.The Coalition for App Fairness, structured as a nonprofit based in Washington and Brussels, said it plans to advocate legal changes that would force Apple to change. Beyond Epic, Match and Spotify, other members include smaller firms such as Basecamp, Blix, Blockchain.com, Deezer, and Tile, along with developers from Europe, including the European Publishers Council, News Media Europe and Protonmail. Epic is suing Apple over antitrust claims in a U.S. federal court in California, while Spotify has filed an antitrust complaint against Apple in the European Union. Sarah Maxwell, a representative for the group, declined to comment on how much funding the Coalition for App Fairness has raised and from whom. Apple declined to comment but on Thursday unveiled a new section of its website explaining the benefits of its approach, saying it had blocked 150,000 apps last year for privacy violations. It says App Store fees fund the creation of developer resources such as 160,000 technical documents and sample code to help developers build apps. Mike Sax, founder of The App Association, a group sponsored by Apple, said in a statement that the new coalition’s “big brands do not speak for the thousands of app makers that are the foundation of the app economy.” 

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US Justice Department Proposes Changes to Internet Platforms’ Immunity

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President Donald Trump met with nine Republican state attorneys general on Wednesday to discuss the fate of a legal immunity for internet companies after the Justice Department unveiled a legislative proposal aimed at reforming the same law. Trump met with attorneys general from Arizona, Arkansas, Louisiana, Mississippi, Missouri, South Carolina, Texas, Utah and West Virginia. Also Wednesday, the Justice Department, which is probing Google for potential breaches of antitrust law, held a call with state attorneys general’s offices to preview a complaint to be filed against the search and advertising giant, perhaps as soon as next week, according to two sources familiar with the matter.   It is normal for the department to seek support from state attorneys general when it files big lawsuits. Critics have accused Google, owned by Alphabet Inc., of breaking antitrust law by abusing its dominance of online advertising and its Android smartphone operating system as well as favoring its own businesses in search.   The White House said the legal immunity discussion involved how the attorneys general can utilize existing legal recourses at the state level—in an effort to weaken the law known as Section 230 of the Communications Decency Act, which protects internet companies from liability over content posted by users. After the meeting, Trump told reporters he expects to come to a conclusion on the issue of technology platforms within a short period. It was not immediately clear what conclusion he was referring to.   He said his administration is watching the performance of tech platforms in the run-up to the Nov. 3 presidential election. “In recent years, a small group of powerful technology platforms have tightened their grip over commerce and communications in America,” Trump said. “Every year countless Americans are banned, blacklisted and silenced through arbitrary or malicious enforcement of ever-shifting rules,” he added.   Trump, who himself frequently posts on Twitter, said Twitter routinely restricts expressions of conservative views.   Earlier on Wednesday, the Justice Department unveiled a legislative proposal to reform Section 230. It followed through on Trump’s bid earlier this year to crack down on tech giants after Twitter Inc. placed warning labels on some of Trump’s tweets, saying they have included potentially misleading information about mail-in voting. The Justice Department’s proposal would need congressional approval and is not likely to see action until next year at the earliest. Unless the Republicans win control of the House of Representatives and maintain control of the Senate in the November elections, any bill would need Democratic support.   The Justice Department proposal primarily states that when internet companies “willfully distribute illegal material or moderate content in bad faith, Section 230 should not shield them from the consequences of their actions.” It proposes a series of reforms to ensure internet companies are transparent about their decisions when removing content and when they should be held responsible for speech they modify. It also revises existing definitions of Section 230 with more concrete language that offers more guidance to users and courts.   It also incentivizes online platforms to address illicit content and pushes for more clarity on federal civil enforcement actions.    The Internet Association, which represents major internet companies including Facebook Inc., Amazon.com Inc. and Google, said the Justice Department’s proposal would severely limit people’s ability to express themselves and have a safe experience online. The group’s deputy general counsel, Elizabeth Banker, said moderation efforts that remove misinformation, platform manipulation and cyberbullying would all result in lawsuits under the proposal. 

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TikTok Asks Judge to Block US From Barring App for Download

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TikTok asked a U.S. judge on Wednesday to block a Trump administration order that would require Apple Inc and Alphabet Inc’s Google to remove the short video-sharing app for new downloads starting Sunday. A federal judge in San Francisco on Saturday issued a preliminary injunction blocking a similar Commerce Department order from taking effect Sunday on Tencent Holdings’ WeChat app. U.S. officials have expressed serious concerns that the personal data of as many as 100 million Americans that use the app was being passed on to China’s Communist Party government. FILE – People walk past a WeChat Pay sign at the Tencent company headquarters, in Shenzhen, Guangdong province, China, Aug. 7, 2020.On Saturday, the Commerce Department announced a one-week delay in the TikTok order, citing “recent positive developments” in talks over the fate of its U.S. operations. TikTok said the restrictions “were not motivated by a genuine national security concern, but rather by political considerations relating to the upcoming general election.” TikTok said if the order is not blocked, “hundreds of millions of Americans who have not yet downloaded TikTok will be shut out of this large and diverse online community — six weeks before a national election.” TikTok’s Chinese owner, ByteDance, said on Monday it will own 80% of TikTok Global, a newly created U.S. company that will own most of the app’s operations worldwide. ByteDance added that TikTok Global will become its subsidiary. Oracle Corp and Walmart Inc have agreed to take stakes in TikTok Global of 12.5% and 7.5%, respectively. On Monday, Oracle said ByteDance’s ownership of TikTok would be distributed to ByteDance’s investors, and that the Beijing-based firm would have no stake in TikTok Global. On Saturday, ByteDance, Walmart and Oracle said they reached an agreement that would to allow TikTok to continue to operate in the United States after President Donald Trump said he had blessed the deal. Trump signed an executive order on Aug. 14 giving ByteDance 90 days to relinquish ownership of TikTok. 
 

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German Coronavirus App Transmits 1.2 million Test Results in First 100 Days, Officials Say

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Germany’s health ministry Wednesday said its coronavirus smartphone app has been downloaded more than 18 million times and transmitted 1.2 million test results from labs to users during the first 100 days of use.Health Minister Jens Spahn told reporters in Berlin that while the “Corona Warn App” is far from perfect, it should be considered a success. He said almost 5,000 users have activated the app to warn their contacts and called it a key tool in the country’s effort to contain the spread of the virus, which causes the COVID-19 disease.He said, “This shows that the corona tracing app works, it is in demand…it helps to prevent infections and it is one of the most successful apps worldwide.”Spahn noted in particular the fact that most users can get their test results sent directly to their smartphones, without having to wait for their doctor to inform them.German Health Minister Jens Spahn attends a news conference to give an update on a smartphone app that allows users to evaluate their risk of being exposed to the coronavirus in Berlin, Germany, Sept. 23, 2020.Germany’s strict privacy rules mean that the app stores all data on phones and not on a central server. Observers, however, say there is no precise data on the number of people alerted about possible exposure.Should an app user get a positive test result, the app has a button the person can press to warn his or her contacts. Spahn says one problem is not everyone is doing that. “Only about half of the app users who get a positive result inform their contacts afterwards.”Spahn says the app is not a cure-all, but one of a number of important tools the government is using to control the spread of the virus.German tech company Deutsche Telekom, working with software company SAP, developed the app. Deutsche Telekom Chief Executive Tim Hoettges said more than 90% of labs in Germany are now connected to it.Hoettges said efforts are under way to establish a European “gateway” that will allow the German app to communicate with those in 10 other European countries, including Italy, Poland and Spain, that use the same decentralized, Bluetooth-based system.

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