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

Legal Issues

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

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

The details reinforce two key points:

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

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

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

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

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

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

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

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

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

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

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

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

Later in that ruling:

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

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

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

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

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