National Security Threat or Skirting Justice?

          

            It looks like I'm not the only one who chose the recent Executive Order banning TiKTok. Luckily I think we both chose different questions and aspects of the issue to review. This blog will focus on the complaint that TikTok and its parent company, ByteDance, filed as a result of President Trump’s August 6th Executive Order [1]

A little background - We’ve all heard of TikTok by now, the popular video-sharing app that reached 1 billion users in just two years after its global launch [2]. TikTok initially attracted a younger audience by marketing ‘real’ videos and authentic content. The platform may have less features than its competitors, Instagram, Facebook or Vine, however it seems to make up for that by keeping advertising to a minimum. Although it started off with a very teen-only feel, adults and ‘influencers’ are finding their way onto this new platform as well. In August the tech giant released new data around it’s user count, stating that there were currently 91 million active monthly users in the U.S. alone [3]. 

TikTok’s headquarters are based in California and its global parent company, ByteDance, has offices in the U.S., China, Singapore, among others [4]. The tension between the U.S. and this tech giant culminated on August 6th when President Trump issued an Executive Order [5] under the International Emergency Economic Powers Act (IEEPA) barring people and property within U.S. jurisdiction from carrying out “transactions” with TikTok [6]. United States Secretary of Commerce, Wilbur Ross, published a press release shortly after commenting on the President’s actions; “At the President’s direction, we have taken significant action to combat China’s malicious collection of American citizens’ personal data, while promoting our national values, democratic rules-based norms, and aggressive enforcement of U.S. laws and regulations [7].”

The actions Secretary Ross was referring to include steps taken by the Commerce Department to prohibit a long list of transactions, designed to effectively ‘disable’ TikTok from doing business in the U.S. Consequently, the ban will also sever the company’s ability to pay their U.S. employees, leading to a backlash and criticism that the President violated the due process protections of the Fifth Amendment by not allowing TikTok the ability to defend itself in court.   

As a result, on August 24th TikTok and ByteDance filed a lawsuit against President Trump, Secretary Wilbur Ross, and the Department of Commerce, alleging the Executive Order banned the information sharing platform without affording its owners TikTok Inc. and ByteDance Ltd.due process of law and for political reasons rather than because of an “unusual and extraordinary threat.” [8].        

Questions 

The aspect of this legal issue that I want to focus on is around the complaint that TikTok and ByteDance filed in response to President Trump’s Executive Order.

The plaintiffs claim that the Executive Order violated their due process rights for not affording them an opportunity to defend themselves in court, but the President justified his actions under the IEEPA by claiming TikTok was a threat to national security. Do you think the Executive Order was authorized correctly under IEEPA powers or did the Order circumvent Constitutional rights to due process? 

 

In general, what did you think about the length & tone of the complaint itself (Ex. paragraph 60, pg. 21)? Do you think that the plaintiff’s lawyer might have done it that way to appeal to a younger demographic in the complaint? Why or why not?  What affirmative defenses do you think the defendants might raise in their answer? 

Sources

[1] https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/

[2] https://wp.nyu.edu/dispatch/2020/02/20/instagram-vs-tiktok-the-battle-between-social-media-platforms

[3]https://www.cnbc.com/2020/08/24/tiktok-reveals-us-global-user-growth-numbers-for-first-time.html 

[4]https://www.politico.com/f/?id=00000174-2162-d006-a7f4-e16fa0dd0000   

[5]https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/ 

[6] https://www.nytimes.com/2020/08/06/technology/trump-wechat-tiktok-china.html   

[7]https://www.commerce.gov/news/press-releases/2020/09/commerce-department-prohibits-wechat-and-tiktok-transactions-protect 

[8]https://www.politico.com/f/?id=00000174-2162-d006-a7f4-e16fa0dd0000 

 

Talk Talk More Talk and Some Dancing Around

Talk Talk More Talk and Some Dancing Around

On August 6^, 2020 President Trump issued an executive order prohibiting transactions related to WeChat and TikTok to “safeguard the national security of the United States”. I had not used TikTok when this came out so I loaded the app and found lots of teen girls (and some men) doing silly dances. I agree we don’t want the world to see this. The odds are I will not be their biggest user so don’t expect to see me dancing there any time soon.  WeChat is a little different story and the one I want to focus on.

On September 20th US Magistrate Judge Laurel Beeler of the US District Court Northern District of California issued a preliminary injunction to a group of WeChat users that challenged the order arguing the “prohibitions trampled the free-speech rights of millions of Chinese-speaking Americans”. Judge Beeler said “the ban raised serious questions related to the constitution's first amendment, guaranteeing free speech.”  Judge Beeler, stated that "while the general evidence about the threat to national security related to China is considerable, the specific evidence about WeChat is modest".

Government lawyers wrote in their filing “The Court’s preliminary injunction 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,”

Here is the interesting part from Judge Beeler “Certainly the government’s overarching 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 US users addresses those concerns.”

What I understand is that she agrees that national security is a significant issue and the executive branch has the right to do this, but the executive order may not have the intended effect they are claiming. Yes, it could stop the app from being loaded more and keep the app from becoming more popular in the United States. But will it stop a national security threat. The parent company Tencent has other operations in the United States as well. There are other Chinese companies that collect similar data including the larger part of Tencent, their games, Why WeChat?

For Chinese Americans WeChat is a primary way of communicating with their families back home. But there are other ways to communicate.

Considering there are other apps. Is blocking the download of WeChat limiting Chinese Americans free speech?

As a comparison, If I said T-Mobile is no longer allowed to make calls to China but there is still Version and AT&T. Is your freedom of speech limited?

Does Judge Beeler’s comment indicate that the impact from the executive order will not accomplish the intended result remove the justification for the order?

If there is a national Security risk is it appropriate to only focus on one or two companies where there is concern?

If the concern is the Chinese government spreading manipulative information is there a different way to control this?

If you try to limit the messages from the Chinese government can you separate their messages from the individual Chinese American messages that are part of their freedom of speech?  

If Chinese access to data stored in China is the main concern should this be a legislative action to require companies working in the US to store their data and all access to the US? TikTok argued that their data is stored in Singapore and the US and is not subject to the data sharing laws with China.

Could I make a law that says no company doing business in the United States can store data in a manner that would be subject to the Chinese data access laws?

Do you have any other suggestions that could address the National Security issue better?

Articles: 

https://www.commerce.gov/news/press-releases/2020/09/commerce-department-prohibits-wechat-and-tiktok-transactions-protect

https://www.bbc.com/news/world-us-canada-54223980

https://www.scmp.com/news/world/united-states-canada/article/3103133/donald-trump-asks-us-court-allow-wechat-ban-proceed

Watch these in this order I could not find them together in one clip.

https://www.yarn.co/yarn-clip/50d7695c-e676-45f3-8945-5bdd7ba0263a

https://www.yarn.co/yarn-clip/69ca372b-024b-4c36-8ecb-a6a5487738f4

 

Who took my keys?

 

   The building of the wall has been a topic that has been discussed in multiple capacities, and it has been a discussion amongst the House, Congress, and President. Over a year ago, the House filed a lawsuit stating that the funding to build the wall between the U.S. Border, and Mexico violated the Appropriations Clause, and the Administrative Procedure Act. The funds to build the wall were transferred wrongfully from the Department of Defense by the Executive Branch, and they do not have the keys to approve this transaction. However, the lawsuit was dismissed due to lack of standing because the House was not injured; however, a year later, the U.S. Court of Appeals has overturned the ruling stating that the House has standing because it has been injured due to the violation of the Appropriations Clause and Administrative Procedure Act. 

"'The court ruled that "each chamber has a distinct individual right, and in this case, one chamber has a distinct injury." Therefore, the House Democrats can challenge the President's transfer of funds to build the border wall. "To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House's key out of its hands,' the appeals court said." (https://www.cnn.com/2020/09/25/politics/federal-appeals-court-border-wall-chance/index.html)

Therefore, the U.S. Court of Appeals has asked the lower court to further review the lawsuit, and to consider the standing as part of the case, which would rightfully allow the case to continue.

In addition, the Department of Defense defends the transfer of funds because previously it was not an issue due to previous practice, and they do not have to have congressional approval to transfer the funds. Also, the wall was being built while this case was being reviewed previous but the Supreme Court allowed the wall to continue to be built. What would be the outcome at this point, when the wall has a majority already constructed?

So in conclusion, my questions are:

Now that standing has been established, what do you think they will rule? 

What power does the Department of Defense have in persuading the outcome of the review?

Is it correct that one chamber (the House in this case) have the right to file a lawsuit to protect their powers from another branch (executive branch)?

Citations:

Articles:

[1] 

https://www.cnn.com/2020/09/25/politics/federal-appeals-court-border-wall-chance/index.html

[2] 

https://www.cnn.com/2019/06/03/politics/house-border-wall-lawsuit/index.html

Opinion:

[3]     

https://www.cadc.uscourts.gov/internet/opinions.nsf/36AF285EAC18D766852585EE004E27BB/$file/19-5176-1863354.pdf

Vocabulary:

 Appropriations Clause (1968) Constitutional law. The constitutional provision mandating that federal funds may be spent only as Congress directs by law and requiring periodic publication of a statement and account of federal receipts and expenditures. U.S. Const. art. I, § 9, cl. 7

Administrative Procedure Act (1946) Administrative law. 1. A federal statute establishing practices and procedures to be followed in rulemaking and adjudication. 5 USCA § 500 et seq. • The Act was designed to give citizens basic due-process protections such as the right to present evidence and to be heard by an independent hearing officer. 5 USCA § 551. 2. A similar state statute. — Abbr. APA.

You've Got Mail

The last few months have brought tumult for the United States Postal Service (USPS), with charges of potential manipulated elections, possible bungled machines, and the Postmaster General Louis DeJoy's close relationship with the President.

DeJoy ordered changes to postal operations that have resulted in delayed mail delivery and a reduced equipment supply. Last month, some states sued [1] amidst concerns over the election in November (with greater than usual reliance on mail-in ballots because of the coronavirus pandemic) and suspicion of cronyism.

One of them was Colorado. The state also just secured a temporary restraining order (TRO) that bars the USPS from continuing to distribute an information postcard in Colorado. The mailer originated from the USPS and consists of boilerplate verbiage on how to vote. Colorado contends the information contains false statements.

Colorado Secretary of State Jena Griswold, a plaintiff, made five claims in her complaint against DeJoy, the USPS, and other named defendants to stop the mailings [2]

Complaint [3]

The judge granted the TRO [4] and the next hearing is scheduled for this Friday, September 18, 2020.

I’ve distilled Griswold’s five claims below.

Do you think the judge will agree with her complaint? Do you think there is evidence of election fraud and efforts to manipulate the vote at the USPS as Griswold contends? Has the Postal Service been politicized?

Claim I – Violation of the Elections Clause Article I, § 4

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

COMPLAINT: “19. … Defendants interfere with the “Times, Places and Manner of holding Elections” which the Constitution allocates to Colorado, not the Postal Service”

Claim II - Violation of the Tenth Amendment

“… [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

COMPLAINT: “… the Framers intended the States to “keep for themselves. . . the power to regulate elections.””

Claim III – Violation of the Constitutional Right to Vote

“all qualified voters have a constitutionally protected right to vote . . . and to have their votes counted.” Reynolds v. Sims, 377 U.S. 533, 554 (1964)

COMPLAINT cites several Articles and Amendments to support the argument of unfair burden on the voter because of deadlines, time frames, requests, methods of casting votes etc

“34. Defendants’ actions are not supported by any interest that justifies this serious burden on the right to vote.”

Claim IV - Violation of 52 U.S.C. § 10101(b) (b) Intimidation, threats, or coercion

COMPLAINT:  “39. Defendants’ false statements about Colorado law violate section 10101(b) by intimidating, coercing, attempting to intimidate, and/or attempting to coerce Colorado voters not to vote in the upcoming election.”

Claim V - Violation of the Uniformed and Overseas Citizens Absentee Voting Act 52 U.S.C. § 20302(a)(1)

This guarantees armed forces service people living outside their voting precinct the right to cast an absentee ballot In Colorado, the Secretary of State is the position that oversee this.

COMPLAINT: "45. Secretary Griswold “is the state official responsible for implementing this article and the state's responsibilities under the … Act”

COMPLAINT:  "49. Coloradans who are absent uniformed services voters and overseas voters and who would otherwise vote under the guidance of Colorado election officials will be confused by the false statements by the Postal Service and will not vote in the upcoming elections"

[1] https://thehill.com/regulation/court-battles/512543-states-file-two-lawsuits-against-postmaster-general-over-postal

[2] https://www.cpr.org/2020/09/12/colorado-secretary-of-state-sues-the-u-s-postal-service-over-election-mailer/

[3] https://wp-cpr.s3.amazonaws.com/uploads/2020/09/USPS-Complaint_Filed.pdf

[4] https://www.cnn.com/2020/09/13/politics/colorado-temporary-restraining-order-voter-mailers/index.html

"Taxes and Where to Find Them:” The battle of jurisdiction between Trump and New York

“Taxes and Where to Find Them:” The battle of personal jurisdiction between Trump and New York

          

        Since the presidential elections of 2016, there has been a constant debate on whether President Trump should release his tax returns.  Despite the fact that there is no federal law or requirement that binds a president from disclosing his federal taxes to the public, former presidents established such precedent and is now understood as a common practice. Recently New York has taken the lead by passing a law that allows the release of Donald Trump’s state tax returns [1].  The  Manhattan District Attorney (DA) and the Attorney General of New York (AG) on behalf of herself and the New York Tax Commission, separately  issued subpoenas for Trumps state tax returns [2]. These actions have triggered a battle between Trump and the New York officials with Trump suing the AG and the Tax Commissioner in federal court in the District of  Columbia and setting the stage for a fight over personal  jurisdiction.

           Ignoring the political aspects of the case, the most interesting piece, I argue, is the fight of jurisdiction on taking New York’s AG to court. Trump’s legal counsel is asking for the trial to be in a federal court in Washington D.C., while the AG is looking for this lawsuit to be heard in a New York federal court.  The AG is arguing that the D.C. Court does not have personal jurisdiction [3] over her and that the long-arm statute of D.C. is not valid in this case as the New York AG  does not have sufficient minimal contacts with D.C. to enable the  federal court there to take jurisdiction over her [4]  We are seeing an interesting argument being developed on whether a court in D.C. has the power to adjudicate a case that involves a New York tax return, a New York law, and a New York Attorney General and have it taken away from courts in New York. The reasoning of Trump’s legal team to bring the case to D.C., despite it appearing that all parties involved belong under New York jurisdiction, is that if his tax returns are released it would be to congress in D.C. 

Questions?

In Washington D.C. there is a long-arm statute which subjects persons to the jurisdiction of a DC Court  if they are conducting any personal business in D.C. [5]  The question I ask of you is: do you believe that (ignoring everything else involved) the principle that an AG and a tax official can come under the personal jurisdiction of another court in another state can be based on the idea that records would be sent to D.C. and that meets the requirements of the DC long-arm statute? If so, what is your reasoning? If not, what would be the proper venue for a case such as this?

            Another debate I wanted to get into on this would be if just having your tax returns released to congress, regardless of who it is, be enough to constitute harm so as to bring it within the DC long arm statute?

---

[1] https://www.politico.com/states/new-york/albany/story/2019/07/08/cuomo-signs-law-allowing-new-york-to-hand-over-trumps-taxes-1087835

[2] https://www.cbsnews.com/news/trump-tax-returns-subpoenaed-new-york-prosecutors-subpoena-8-years-of-president-donald-trumps-tax-returns-ap-source/

[3] https://utah.instructure.com/courses/631138/modules/items/11826361

[4] https://www.cnn.com/2019/08/29/politics/new-york-trump-tax-returns-dismissed-federal-court/index.html

[5] https://code.dccouncil.us/dc/council/code/sections/13-423.html