The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"TikTok's Tech Partners Face Massive Legal Risks by Relying on Trump's Promises Not to Enforce the Ban Law, …
as courts rarely protect defendants who count on executive non-enforcement," writes Prof. Alan Rozenshtein (Minnesota).
An excerpt from his Lawfare post:
An important feature of the [entrapment-by-estoppel] doctrine in lower courts [on which the tech companies would presumably rely in any enforcement proceeding -EV] is that it incorporates a reasonableness requirement. This test demands not only that the government "affirmatively told the defendant that the proscribed conduct was permissible," but also that the defendant "reasonably relied on the government's statement"—i.e., if a defendant "sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries."
Courts could be expected to apply this reasonableness standard more stringently when evaluating claims by sophisticated actors. Corporate entities with substantial legal resources and regulatory expertise should face greater scrutiny of their reliance claims, as they possess the capacity to independently evaluate legal requirements rather than relying solely on executive statements….
The non-enforcement promise offers minimal security. As discussed above, courts rarely treat such promises as binding, even when defendants face serious consequences from relying on them. Trump could change his mind at any time or selectively enforce against companies that fall from political favor, and a future administration, taking advantage of the five-year statute of limitations, would almost certainly be free to pursue violations regardless of Trump's stance.
I'm not an expert on the subject, but I've generally found Prof. Rozenshtein's analyses to be quite thoughtful and interesting, so I thought I'd pass this along. Naturally, I'll be glad to also pass along links to serious contrary arguments.
