Technology policy

Mike Godwin, the Creator of Godwin's Law, Is Suing Trump Over His TikTok Executive Order

"I know what moral panics look like; they look kind of like this."

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Social media and China: two beloved scapegoats of the current administration. But the president might be foiled in his latest attempts to bully a tech company—in this case, TikTok—into banishment and to use executive power to put U.S. TikTok employees out of jobs. TikTok is fighting, and so is famed constitutional lawyer Mike Godwin.

On Monday, the same day TikTok announced that it's suing the Trump administration over attempts to ban the popular video app, Godwin also filed a lawsuit challenging President Donald Trump's recent executive order on TikTok and the messaging app WeChat.

Godwin—perhaps best known as the creator of Godwin's Law, the early internet axiom that "as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1″—and the Blackstone Law Group are representing TikTok employee Patrick S. Ryan. Their suit—filed against Trump and Secretary of Commerce Wilbur Ross in the U.S. District Court for the Northern District of California—was brought "to prevent the implementation of the President's August 6, 2020 Executive Order purporting to ban all 'transactions' with TikTok, to the extent that order would prevent TikTok from paying its U.S. employees their wages and salaries when the order takes effect on September 21," the complaint states.

Trump's "sweepingly broad" order nixes "any transaction" between a business or person subject to U.S. laws and TikTok parent company ByteDance Ltd., notes the suit. That includes transactions involving its U.S. subsidiary, TikTok Inc., which was legally incorporated here and employs around 1,500 people in the U.S.

Trump's stated rationale for the order was that TikTok is owned by a Chinese company and therefore is supposedly beholden to the demands of the Chinese Communist Party. But while ByteDance started in China, it's now based out of the Cayman Islands. And subsidiary TikTok Inc.'s headquarters are in Culver City, California, with servers in Virginia.

"TikTok is neither owned, operated, nor controlled by China or the Chinese government. Indeed, TikTok does not even operate in China," the lawsuit states.

"A lot of the things that people were saying on what to worry about with TikTok was crazy," Godwin tells Reason.

"There's nothing unique about TikTok and there are plenty of other apps that gather" the same sort of user information, he says, challenging the idea the data TikTok users give it is particularly threatening to their privacy. "What's the blackmail model for TikTok? Your dance moves? No matter how bad they are, they're not that bad!"

When he would ask TikTok critics about what the actual "threat model" is, many "would look at me like 'Isn't it obvious?'" says Godwin. "They would get upset—'Why am I even raising these questions about whether the Chinese are somehow using TikTok in a bad way? Of course they are!'"

"So that was troubling," Godwin adds. "I know what moral panics look like; they look kind of like this."

Now, U.S. workers of TikTok are now caught up in the crosshairs.

ByteDance may be able to sell TikTok Inc.—both Microsoft and Oracle have been interested. But that offers no protection or solace for the company's workers here, Godwin points out. "If TikTok gets sold to Microsoft or Oracle, that's no guarantee now that [current employees are] going to have a job" or that they want to work for these companies.

"The 1,500 TikTok employees working in the U.S.—as well as their families—need to know whether they will be paid next month," states the lawsuit. "These employees include U.S. citizens that have families to feed, rents and mortgages to pay, and health care to manage. In addition, many TikTok employees working in the United States are here on H1B Visas, which require that their employer sponsor their visa status. These workers, lawfully present in the United States and acting in reliance on their employment relationship with TikTok, as well as in reliance on the U.S. government's H1B visa process, face having to leave the U.S . immediately—or risk deportation—if their employment status is constructively terminated by the effect of the Executive Order."

"We realized the employees had a sort of analytically distinct set of complaints they could make against the government," Godwin says. In this case, employees have a situation where "the company contracted with you to make you an employee, but now the government is reaching in to destroy that contract."

"Nothing illegal has happened," says Godwin. "What you have are these very speculative harms, there's no actual evidence that anybody's using TikTok data in any way that would trouble a parent, much less, you know, the U.S. government."

"You just get this sense that [Trump is] cruising around for something that he could do to show that he can punish a social media platform," he adds.

Trump's executive order contains a lot of speculation about how TikTok could be dangerous. Yet it relies entirely on the idea that apps with any ties to China could—in some yet to be determined way—become a national security threat.

It's "like the notion of pre-crime in [the film] Minority Report," says Godwin.

Yet unlike the president's earlier order concerning Twitter and Section 230, the order against TikTok and WeChat actually has teeth, Godwin notes. In fact, "it's all teeth." And yet "you can't actually look at it and determine how you could avoid being punished by it."

In terms of the suit's success, the president's invocation of "national security" is a hurdle.

"A number of national security law professors and lawyers are pretty certain that no foreign-owned company can really resist the superpowers the president has…regarding foreign investment and divestments and so on. But I think they're wrong!" says Godwin. "They've gotten used to thinking of a 'national security' claim" by the president "as being like a royal flush—the highest possible hand that no other hand can beat—but I think it's like a full house. It's a really good hand, but there are some other hands that can beat a full house."

The hand they're playing is "individual rights," Godwin says. And he thinks that just might prevail, if they can "get this order in front of a judge, and create a narrative and a throughline that allows a court to realize how bad it is."

You can read their full complaint here.

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  1. You know who else tried to control the means of social communication?

    1. Arnold Hister

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    6. Chairman Tse Tung?

    7. The SPAM Bots of Reason

    8. You know who else tried to control the means of social communication?

      Godwin.

      Godwin’s Law was created to shut down all the people who were pointing out that Godwin’s lefty positions sounded an awful lot like you-know-who.

      1. “Mike Godwin himself…has also criticized the overapplication of Godwin’s law.” In 2008, Godwin said, “I wanted folks who glibly compared someone else to Hitler to think a bit harder about the Holocaust.” In 2015: “If you’re thoughtful about it and show some real awareness of history, go ahead and refer to Hitler when you talk about Trump, or any other politician.”

        That didn’t prohibit the otherwise once-contributing-editor of Reason from glibly comparing things like border detention facilities to “concentration camps”–but only when used by Trump; no peep from Godwin about Obama’s similar abuses (and Obama’s folks were also removing personal items from those apprehended, much like they did in real concentration camps).

        So yes, Godwin is just one more uninteresting, biased person who selectively applies his own moral code.

        Nobody cares.

        1. He had his one good idea and then managed to ruin it.

        2. By the same token, I’m not at all concerned about

          These workers, lawfully present in the United States and acting in reliance on their employment relationship with TikTok, as well as in reliance on the U.S. government’s H1B visa process, face having to leave the U.S . immediately—or risk deportation—if their employment status is constructively terminated by the effect of the Executive Order.”

          The only reason for an H-1B worker to be in America is if there is a job which no American is willing and able to do.

          I doubt that’s the case with TikTok. Eliminate all their H-1B visas as a matter of course. Unless TikTok can PROVE no American is able and willing to do the job. Then we can begin to think about whether it’s a security threat.

  2. Nobody cares. Social media, phone apps, and internet sites are sewage and reason knows it. I hope he takes out Twitter next.

    1. Nobody cares.

      ^This.

    2. Who cares?! People with dance moves, and adorable cats, and home-baked sourdough, and political memes.

      1. Wait. I like sourdough.

    3. Trump bans legit business.

      Trump cultists – NO ONE CARES!

      1. TDS lefty shits – no one cares.

    4. Ironic. You cared enough to read about it and comment about it

  3. I bet he compared Trump to Hitler for banning the Chi-com spyware.

    1. He did try to claim his “law” didn’t count when discussing Trump previously

          1. I even had a typo and searched “godwins law teump”

            BTW, this Reason article was the first result listed (duckduckgo)

  4. Can we get him to sue California over AB5?

    1. That is different. Some freedoms are more equal than others.

      e.g. His vs. yours.

  5. Wait… this is the moral panic?

  6. “The hand they’re playing is “individual rights,”” Gee, what a novel idea.

  7. Trump is a real moral busybody. Not like the stoic individualists that make up the press and the Democrat party.

  8. Of course, the wingnuts here are so infatuated with the Tangerine Rapist that they don’t give two shits what happens to the employees of TikTok, a harmless app used by teens to post innocuous dance videos. Just proves my point, when Trump says: suck, stupid wingnuts say: *crazy gargling sound*

    1. But while ByteDance started in China, it’s now based out of the Cayman Islands. And subsidiary TikTok Inc.’s headquarters are in Culver City, California, with servers in Virginia.

      I’m not sure this means the Chinese government has no interests or attachments to the company.

      1. Not supposed to be a reply to you, Shrike. But in the spirit of replying to you, I do care very much what happens to the 1500 workers of Tik Tok. I suspect that… those workers will probably continue to work for Tik Tok once this keruffle is sorted out. However, I also care very much about what will happen to the tens of thousands of workers for Lyft and Uber in the wake of AB-5. There are moral panics, and then there are complete fucking corrupt laws passed, having been written by a union, and handed in a spiffy three-ring binder to Lorean Gonzales who has literally said in public that she DOESN’T give a shit about Uber and Lyft workers.

        1. Crap.
          I was going down the thread fruitlessly flagging the bots, when I saw the boldtext and mechanically flagged you without really paying attention.
          I doubt anything will happen Paul, but if so, I’m really, really sorry.

        2. Shriek doesn’t care about those workers either.

        3. “what will happen to the tens of thousands of workers for Lyft and Uber in the wake of AB-5”

          Workers, now, is it? What happened to independent contractors?

    2. “…the Tangerine Rapist…”

      There’s a reason lefty ignoramuses with TDS spend half their lives inventing nick-names which embarrass 1st-grade kids: The kids are smarter than they are.
      Especially in the case of failed day-trader and kiddie-porn fan with daddy issues and a coke habit.
      Fuck off, turd.

      1. Of course the village idiot chimes in with ad hominem, adding nothing of substance.

        Sevo translator: *crazy gargling sound*

        1. You deserve nothing more than that, since your total contributions here have been just enough to get you banned now twice.
          Do you somehow think between being banned and making up ‘funny names’ grants you more than being called on your bullshit, turd?
          Are you snorting enough lines to keep this going, you pathetic piece of lefty shit?

          1. Poor sweet, simple Sevo. I know life’s been hard on you, what with being born with half a brain and a 3/4 inch penis and all.
            I’m sure it can’t be easy being an 80 year-old virgin mongoloid retard with a micropenis, but hey look on the bright side, at least you can still serve a purpose here stalking the Reason threads saying the exact same thing day in and day out.
            Keep up the good work!

            1. Poor loser turd, did your daddy cut you off? Not enough kiddie porn?

        2. “Tangerine Rapist” is not ad hominem and does add subtance?

          Strange world you think you live in.

          1. I’m going to start using Tangerine Rapist as my new Orange Hitler when parodying rage progs.

        3. Of course the village idiot chimes in with ad hominem, adding nothing of substance.

          How self-referential of you.

        4. SPB, what substance was added with “tangerine rapist”?

          Don’t whine that people respond to your substance-free posting with substance-free responses. It shouldn’t Sevo’s job to raise your gibberish to the level of HAVING substance.

    3. I don’r give even ONE shit about the H-1B employees.

      They shouldn’t even be here.

  9. I know what a moral, health AND retard panic looks like.

  10. But while ByteDance started in China, it’s now based out of the Cayman Islands.

    LMAO

  11. “Trump’s stated rationale for the order was that TikTok is owned by a Chinese company and therefore is supposedly beholden to the demands of the Chinese Communist Party. But while ByteDance started in China, it’s now based out of the Cayman Islands. And subsidiary TikTok Inc.’s headquarters are in Culver City, California, with servers in Virginia.”

    The economic liberalization of mainland China has saved millions of people from starvation which is all to the good; ‘Wang Sum’ and family deserves that and more.
    But you’d have to be the Preceptor Pangloss to assume (as a result) industries making large amounts of money are NOT under some control of the CCP, regardless of where they are “based”: Follow the money (through the spin cycle).
    US defense contractors ban its use by employees; it’s been shown to track locations. US-based social media does also, and I’m sure that ends up in a US government DB someplace. Not good; It should be *STOPPED*.
    But there is a difference between denying the US government that info compared to denying the CCP similar data. Info on little Johnny’s location may seem irrelevant unless little Johnny’s daddy holds a certain position and little Johnny’s data suggests they’re on vacation when dad’s needed in the office for certain security matters.
    Even given my bias to ‘get the hell out, gov’t’, not seeing this as a binary issue.

    1. “Trump’s stated rationale for the order was that TikTok is owned by a Chinese company and therefore is supposedly beholden to the demands of the Chinese Communist Party. But while ByteDance started in China, it’s now based out of the Cayman Islands. And subsidiary TikTok Inc.’s headquarters are in Culver City, California, with servers in Virginia.”

      ByteDance recently withdrew TikTok from app stores that are accessible in Hong Kong.

      The reason was presumably because Beijing didn’t want protesters sharing videos of the police cracking down on protesters.

      https://time.com/5863584/tiktok-pulls-out-hong-kong-bytedance/

      The claim that TikTok doesn’t take orders from the CCP would be more plausible if TikTok weren’t taking orders from CCP.

      Meanwhile, the CCP perpetrates massive surveillance on its own people, and the suggestion that they wouldn’t use data from TikTok is ludicrous. People forget how extensive their social credit system is.

      1. “The credit system is closely related to China’s mass surveillance systems such as Skynet,[19][20][21] which incorporates facial recognition system, big data analysis technology, AI and Project Maven.

        . . . .

        Behavior that some cities have officially listed as negative factors of credit ratings includes playing loud music or eating in rapid transits,[31] violating traffic rules such as jaywalking and red-light violations,[32][33] making reservations at restaurants or hotels but not showing up,[34] failing to correctly sort personal waste,[35][36][37] fraudulently using other people’s public transportation ID cards,[38] etc.

        https://en.wikipedia.org/wiki/Social_Credit_System

        They ban the children of people with low social credit scores from attending private schools or being admitted to universities, and high social credit scores get your preferred treatment at hospitals and job offers from the government.

        But the CCP would never lean on a company like TikTok to perpetrate surveillance on American citizens because Americans are exceptional and the CCP values us more than their own people. Is that what we’re supposed to believe?!

        1. Spent some time in what should be called East Tajikistan, which the Han Chinese claim is Xinjiang province.
          Unless someone comes up with a better reference, Keay’s “China: A History” suggests that the area in question was a Han Chinese garrison, held, given up, held, etc until now. And was never a Han Chinese ‘homeland’, merely an area lacking in defense.
          While I was there, travel on the major highways was interrupted at ~ 50 Km interval, requiring a stop and presentation of your papers. As you did leaving the highway and entering a town/city.
          Further, on entering a hotel, you were again required to produce your papers.
          Let’s be clear that, as obnoxious as the US data-harvesting is, the CCP puts that to shame

          1. East Turkestan. Tajiks are related to Indo-European Persian/Iranians. Uighurs are related to Turks.

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              1. Tajikistan is one of the ex republics of the USSR. Nobody should call Xinjiang East Tajikistan. If you want to place identity politics, East Turkestan is more appropriate. Xinjiang’s inhabitants are a Turkic people, not Indo European as are the Tajiks.

        2. The credit system is closely related to China’s mass surveillance systems such as Skynet,[19][20][21] which incorporates facial recognition system, big data analysis technology, AI and Project Maven.

          And China’s vision is to bring all of this to the entire world.

          Progressives in the West like the idea.

  12. Haven’t talked to Mike for awhile. Good to see that he is doing ok.

    First met him at a BBSing conference in CO Springs in the late 1980s. Maybe 25 years ago, Godwin was a regular at Mark Lemley’s CyberLaw conferences at UT in Austin. That is where I got to know EV a bit, who was also a regular speaker there. Mike was also a member of the Intellectual Property Committee of an engineering society with me.

    1. We’re all happy for you.
      Ya know, I haven’t spoke with JHC since the last supper; hope he’s doing well since the resurrection.
      We were both engaged in the ‘end violence’ project, which hasn’t gone all that well.
      (just to let you know that bragging rights are dirt cheap)

      1. hope he’s doing well since the resurrection

        I heard that he might be coming back soon.
        Apparently he’ll be dropping by a scenic place in the Jezreel Valley region called Mount Megiddo first. Not sure if that “end violence” project will be on the immediate agenda though.

    2. Haven’t talked to Mike for awhile. Good to see that he is doing ok.

      Not only that, but in the intervening years, he has increasingly demonstrated that he is just a left wing blowhard and meddling progressive pretending to stand up for civil liberties.

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  14. This is the kind of trolling/free publicity that got Trump elected in 2016.

    TikTok has about 85 million users in the United States, and the odds of TikTok being shut off in the United States is practically zero. There is a biding war for TikTok’s U.S. assets right now, and the only impact of that deadline Trump imposed is TikTok will be sold to a U.S. based company either before that executive order takes effect or shortly thereafter.

    Those 85 million TikTok users in the U.S. likely won’t see any service disruptions whatsoever, and if and when TikTok’s U.S. assets are sold to an American company, it will further differentiate Trump from the Democrats on the issue of forcing Chinese companies to make sacrifices for the benefit of American voters and American workers. Needless to say, that will play well in the upcoming election.

    There isn’t anything about condemning President Trump for forcing a Chinese company to sell itself to an American company that will play poorly with swing voters in the Midwest. If President Trump could pay Godwin to sue him over this, he probably would. It’s better advertising for the reelect Trump campaign than money can buy. Biden wishes he could be sued for forcing a Chinese company to sell itself to an American company, too.

    1. “There isn’t anything about condemning President Trump for forcing a Chinese company to sell itself to an American company that will play poorly with swing voters in the Midwest.”

      It’s not just an American company, it’s Microsoft: Windows 98, CHAZ, Bill Gates, Soros and pedophilia. Not the best way to pander to midwest swing voters.

  15. Just for the record, I’m fully supportive of the idea that the president shouldn’t be allowed to do this. If individual Americans have no problem with subjecting themselves to potential surveillance by the CCP, they should be free to do so.

    But why is that so hard for some people to say? Why do they feel compelled to pretend that there is no danger of the CCP leaning on TikTok to procure data about Americans?

    Is it just because Trump is involved?

    Do you know what American telcos did for the U.S. government in terms of surveillance when both the Bush and Obama administrations leaned on them? They gave them everything they asked for! When Preet Bahara leaned on Reason for information about commenters, Reason was libertarian enough to contact the commenters in question and ask them whether they had any objections. I see no good reason to assume that the CCP is less concerned about criticism of public officials or what people are saying than Preet Bahara, George W. Bush, or Barack Obama. And I see no good reason to assume that TikTok is more principled than American telcos. They’re certainly not as principled as Reason.

    If you feel compelled to pretend that companies that are subject to the whims of the CCP won’t respond to pressure by the CCP, or that the CCP isn’t really all that interested in perpetrating surveillance–all because President Trump is involved and there’s an election in two months–then you may have TDS

    1. “Just for the record, I’m fully supportive of the idea that the president shouldn’t be allowed to do this. If individual Americans have no problem with subjecting themselves to potential surveillance by the CCP, they should be free to do so.”

      Would that it be so clear. Unfortunately, when Johnny is the offspring of John, who is in charge of cyber-security, and Johnny’s locator puts him (and likely dad) in the boonies when dad should be in the office, we have a problem

    2. “Why do they feel compelled to pretend that there is no danger of the CCP leaning on TikTok to procure data about Americans?”

      It’s not that. If you use a free of charge social media app, you assume they are mining your data. But it’s TikTok, a site where people post silly videos. They don’t have anything all that’s sensitive to mine.

      The big example given this morning is that Chinese agents may have directed videos toward African-American TikTok users on how to organize protests. This is pretty weak stuff as a nefarious plot — sending information to people on how to exercise their Constitutional right to protest. That’s practically a public service,

      It’s like the Democrats complaining that the Russians leaked DNC emails. Interference? More like an act of investigative journalism.

      1. The big example given this morning is that Chinese agents may have directed videos toward African-American TikTok users on how to organize protests. This is pretty weak stuff as a nefarious plot

        Communist regimes have been fomenting racial unrest and political division in the US for decades, as well as supported progressives and left wingers. That’s clear and massive election interference, willingly received and tolerated by Democrats. Are you saying that’s OK with you?

        1. Where does the heart of blame for “racial unrest” lie? It’s not like we have a society free of racial strife and foreign agents are using deep techniques to create tensions where there were none.

      2. You know, except for mining your keystrokes and passwords so they can identity theft you.

        1. Passwords? There is a simpler defense against the mining of passwords than having the government ban your favorite site for posting fun videos. Don’t use the same password everywhere. If the government were really concerned they could help set up the infrastructure for encrypted, legally-binding personal identity tokens.

          Key logging — what sensitive info are they going to capture on a video sharing site?

          1. OK, I’m going with both.

      3. “It’s not that. If you use a free of charge social media app, you assume they are mining your data. But it’s TikTok, a site where people post silly videos. They don’t have anything all that’s sensitive to mine.”

        You’re a laugh riot! Or stooopid. Or both.
        Chinese, attempting to hack defense contractor “X” know that Johnny Jr. is son of Sr. who is head of cyber security at contractor “X”; they also see that Jr. is currently at Lake Tahoe, and we know he didn’t get there riding his Big Wheel. So when do YOU think they should they try to grab a password or otherwise gain access?
        Are you really that naive, or just trolling?

      4. Directing videos to young, non-thinking Americans on how to smash stores, loot them, burn them down and kill people is, “practically a public service”?

    3. Just for the record, I’m fully supportive of the idea that the president shouldn’t be allowed to do this.

      I don’t know what that statement even means. Under current US law, the president is allowed to do this; in fact, these are weaker sanctions than he could impose on US companies for similar violations. How specifically would you like to see regulations and laws changed? Would you like to see him prevented from only exercising authority over TikTok? Or would you like to see other legal changes to go along? Which ones?

      Of course, in an ideal, hypothetical libertarian society, the president “shouldn’t be allowed to do this”, but we don’t live in such a society.

  16. Mike Godwin, the Creator of Godwin’s Law, perpetual blowhard who is primarily famous for a pointless Internet adage that trivializes discussions of fascism, Is Suing Trump Over His TikTok Executive Order

    There, FTFY. And it’s not surprising that someone whose notoriety is based on pointless adages about fascism is throwing his lot in with a communist-run organization

  17. Trump’s stated rationale for the order was that TikTok is owned by a Chinese company and therefore is supposedly beholden to the demands of the Chinese Communist Party.

    No, the rationale is that TikTok’s founder has explicitly said that he is cooperating with the communist party to promote their policies, and that it would hire Chinese Communist Party members for content controls on its platform. The rationale is that TikTok’s various properties have clearly and repeatedly done the bidding of the Chinese Communist Party.

    1. “and repeatedly done the bidding of the Chinese Communist Party.”

      Are there any companies operating in China that are flouting the Chinese Communist Party?

      1. False dichotomy. Many companies in China summit aren’t involved with the Chinese government. Most don’t make products that subject Americans to surveillance or propaganda.

        1. “Many companies in China summit aren’t involved with the Chinese government.”

          Is that what the companies are telling you? Any company doing business in China can’t afford to cross the communist party.

          “Most don’t make products that subject Americans to surveillance or propaganda.”

          They do if they are in the tech sector.

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  19. Microsoft is in talks to buy parts of TikTok, in a potential sale that’s being forced under Trump’s threat of a ban.

  20. You said the 2016 election was stolen because Russians made memes on Facebook. How do you square that with now saying “freedom of association” for a company with close ties with China?

    Do you ever make sense?

    1. Kochatarian style guide for freedom of association:

      Do they hold “wrong thought”? No freedom of association

      Are they are large multinational company with close ties to the Chinese government? Unlimited freedom of association

      1. Those nuns, bakers, and small businesses should have established strong business relationships with China if they wanted Koch whores to defend their freedom of association.

  21. So your argument is that Silicon Valley is Beijing East, and therefore both are untouchable? Wow, that happened even faster than I expected. Your Silicon Valley overlords are pleased. You win a cookie.

    This comment not approved by Silicon Valley brain slugs.

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