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What You Don't Know About NFTs Could Hurt You
"it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity."
It remains to be seen how the principles articulated by the Court will apply to future controversies involving offcampus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular expression of opinion," the school would have to show that "its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.
Robert Corn-Revere is a partner and John D. Seiver is of counsel in the Washington, D.C. office of Davis Wright Tremaine. Caesar Kalinowski IV is an associate in the Seattle office of Davis Wright Tremaine. continued from page 04... Biden Administration Rescinds Trump's TikTok and WeChat Bans, Issues Two Executive Orders Highlighting Policies on Chinese Tech Companies
ICT Supply Chain Risks, TikTok, WeChat, and the June 9, 2021, Executive Order
On June 9, 2021, President Biden issued an order that rescinds President Trump's 2020 bans of TikTok and WeChat and builds on a 2019 order concerning U.S. critical information and communications technology (ICT). See, e.g., https:// www.nytimes.com/2021/06/09/us/ politics/biden-tiktok-ban-trump. html; https://www.wsj.com/articles/ biden-revokes-trump-actionstargeting-tiktok-wechat-11623247225; https://www.washingtonpost.com/ technology/2021/06/09/tiktok-banrevoked-biden/
The 2019 Trump order, Executive Order 13873, declared a national emergency based on an "unusual and extraordinary" national security threat posed by the possible use of technologies created or provided by companies under the control of foreign adversaries to compromise critical U.S. ICT. The order authorized the Secretary of Commerce to ban certain transactions with these companies.
Invoking this emergency, President Trump issued three orders prohibiting transactions with (1) TikTok and its parent company, (2) WeChat and its parent company, and (3) other Chinese apps. None of these orders took effect: In litigation where DWT represented groups of TikTok and WeChat content creators, courts blocked the TikTok and WeChat bans. (DWT argued successfully that these bans likely violated users’ First Amendment rights and the International Emergency Economic Powers Act (IEEPA); that the government had not demonstrated an actual risk to national security from either app; and that the government had not demonstrated that a flat ban of either app was necessary to address any threat from the apps.) The Biden Administration never implemented the third Trump order.
Rather than rescind or change Executive Order 13873, President Biden relied on the declared national emergency as the basis for the June 9, 2021, order—but took a different approach. The June 9 order revokes the orders banning TikTok, WeChat, and other apps and instead requires the government to look at "potential indicators of risk" before banning transactions, including:
• "[O]wnership, control, or management by persons that support a foreign adversary's military, intelligence, or proliferation activities" are "subject to coercion or cooption by a foreign adversary" or are "involved in malicious cyber activities";
• Use of the software to conduct espionage, including by allowing a foreign adversary to access sensitive government, business, or personal data;
• "[A] lack of thorough and reliable third-party auditing of connected software applications";
• The "scope and sensitivity" of the data the software collects;
• "[T]he extent to which identified risks have been or can be addressed by independently verifiable measures."
The Secretary of Commerce must continually evaluate these risks, and where they are "undue" or "unacceptable," may prohibit related transactions.
The June 9 order also targets human rights abuses, stating that "[i]f persons who own, control, or manage connected software applications engage in serious human rights abuse or otherwise facilitate such abuse, the United States may impose consequences on those persons in action separate from this order."
Finally, the order directs the Secretary of Commerce to provide recommendations to protect sensitive data from the unrestricted sale, transfer, or access by persons or companies of foreign adversaries and on additional executive and legislative actions to address risks of connected software developed in such countries.
Investments in Chinese Companies in Military and Surveillance Sectors Under June 3, 2021, Order
On June 3, 2021, the Biden Administration issued Executive Order No. 14032 that prohibits U.S. investments in a specific list of Chinese companies. A fact sheet accompanying the order states that the listed companies "undermine the security or democratic values of the United States and [its] allies."
The order targets companies involved in "military, intelligence, and security research" or that develop or provide surveillance technologies "to facilitate repression or serious human rights abuses." The prohibitions took effect August 2, 2021, and current investors must divest their holdings by June 3, 2022.
The June 3 order builds on Executive Order 13959 issued by President Trump in November 2020, which found that China was developing its military, intelligence, and security capabilities through its large, "ostensibly private" economy, including by compelling civilian companies to support and modernize its military apparatuses. Executive Order 13959 prohibited investment in certain listed "Communist Chinese military companies" (CCMCs) or others designated by the Secretaries of Defense or Treasury.
The June 3 order largely preserves the core of Executive Order 13959, prohibiting investment in specified companies that "operate or have operated in the defense and related materiel sector or the surveillance technology sector of the economy of the PRC." There are, however, three notable differences:
• The June 3 order includes companies in the "related materiel" sector, possibly an effort to address claims that a company's relationship with the Chinese military is too attenuated to justify inclusion on the list—claims that two companies have successfully made.
• The June 3 order prohibits transactions with companies operating in the "surveillance technology sector." The accompanying fact sheet states that the order "expand[s] the U.S. Government's ability to address the threat of Chinese surveillance technology firms that contribute— both inside and outside China—to the surveillance of religious or ethnic minorities or otherwise facilitate repression and serious human rights abuses."
• The Secretaries of Defense and
Treasury no longer have the power to unilaterally designate companies as CCMCs. Instead, the responsibility lies principally with the Secretary of
Treasury, who must consult with the
Secretary of State and may, if they deem appropriate, consult with the
Secretary of Defense.
The Annex to the June 3 order lists 59 companies—many overlapping—to supersede and replace the list of 44 CCMCs maintained under Executive Order 13959. The new list will be called the Non-SDN Chinese Military-Industrial Complex Companies list (CMIC list) instead of the CCMC list.
Conclusion
Although it is early in the Biden Administration, the June 2021 executive orders suggest three guiding principles shaping U.S. policy on technology companies operating in China. First, the Biden administration believes threats from China are real, significant, and must be addressed.
Second, the Biden Administration will take a more nuanced approach to specific threats. ByteDance and Tencent—owners of TikTok and WeChat—sought to address the Trump Administration's concerns through a series of targeted measures, but the administration rejected those efforts. The June 9 order suggests that such measures may be sufficient in the future.
Chinese companies, but also those companies' involvement in human rights abuses.
Similar trends are emerging from the Biden Administration's enforcement of existing regulation of international trade and foreign investments. The Biden Administration's review of foreign investments and transactions under the Committee on Foreign Investment in the U.S., for example, remains equally rigorous after substantial expansion of the Committee's jurisdiction under the Trump Administration.
U.S. companies must be increasingly cognizant of both investments in and investments from foreign entities under this administration, especially in the technology, infrastructure, and identifiable data sectors.
Michael T. Borgia and David M. Gossett are partners in the Washington, D.C. office of Davis Wright Tremaine. Ambika Kumar is a partner in Seattle and Thomas R. Burke is a partner in San Francisco. Kelly Valencia was an associate at Davis Wright Tremaine and is now Senior Counsel at Gilead Sciences, Inc. continued from page 05... Senators Propose Substantial Revisions to Section 230's Protections for Online Providers
The immunity is widely credited with enabling the proliferation of online content and has been expansively interpreted by courts to bar the vast majority of claims based on user content. But in recent years, elected officials, courts, and others have raised concerns about how Section 230 operates in practice, with some focused on unlawful content that Section 230 permits providers to disseminate, such as harassment and hate speech.
The announced SAFE TECH Act attempts to address those concerns.
Proposed Revisions to Section 230
The Act would significantly change Section 230 in three ways, by: (1) reducing the type of content protected; (2) making it more difficult and costly to prevail on Section 230 in court; and (3) allowing requests to require providers to remove allegedly unlawful material.
Limiting the Scope of Protected Material
Although Section 230 has always contained exceptions—primarily for federal intellectual property, criminal, and federal privacy laws— those exceptions have not materially altered the way providers operate. For example, other statutes and commonlaw regimes protect providers from liability for infringing third-party content, and criminal and privacy laws typically require providers to manage their own behavior more than they require vetting of third-party content.
The SAFE TECH Act would change this.
First, the Act would exempt from any protection content for which the provider pays or is paid. In other words, websites could face liability for defamatory or misleading material in ads or in content for which the provider pays. This amendment would fundamentally change the current online advertising ecosystem, under which advertisers, not websites, bear the responsibility for their own content. Under the Act, websites would likely require liability insurance as a condition of hosting paid content.
Second, the Act would exempt a raft of other laws, including those relating to:
• Civil rights;
• Antitrust;
• Stalking, harassment, and intimidation;
• International human rights; and
• Wrongful death.
Thus, for wide swaths of content, Section 230 immunity would no longer be available. And, likely, websites would again face a choice between not vetting any content, or risk becoming responsible for all content. Consequently, unlawful content could proliferate, and lawful content could be suppressed—undoing Section 230's progress in many respects and undermining its goals.
The Ease of Applying Section 230
Today courts frequently dismiss claims targeting third-party content at an early stage of the case, without requiring discovery. But the SAFE TECH Act would expressly forbid that approach and, instead, mandate
a court treat Section 230 immunity as an affirmative defense—to be pled and proven by the provider—rather than a reason to dismiss a lawsuit at the outset.
This would increase the cost to providers of defending claims and enable plaintiffs to file questionable lawsuits, hoping to extract a settlement. The burdens of such an approach could well fall disproportionately on small providers who may not have the resources to fight prolonged court battles.
Removal of Problematic Material
Finally, the SAFE TECH Act would permit claims for injunctions against "material that is likely to cause irreparable harm." In other words, anytime someone believes that a posting causes them "irreparable harm," they can seek injunctive relief if a provider refuses to remove it.
Again, this would have serious consequences— to evade Section 230 immunity, an individual need only request injunctive relief, even if the underlying content is lawful.
First Amendment Limitations?
No matter what lawmakers' intent might be, the SAFE TECH Act would likely cause some providers to severely limit the amount of speech they host, including speech that is lawful; to take down third-party speech upon complaint; or to avoid publishing third-party content altogether.
In any event, the First Amendment might provide protection where Section 230 does not—as the First Amendment generally requires some level of knowledge to impose liability on the distributor of third-party speech.
This article was originally featured as a technology, privacy, and security advisory on DWT.com on February 10, 2021. Our editors have chosen to feature this article here for its coinciding subject matter.
Christopher W. Savage is a partner in the Washington, D.C. office of Davis Wright Tremaine. Ambika Kumar is a partner in the Seattle office of Davis Wright Tremaine. James Rosenfeld is a partner in the New York office of Davis Wright Tremaine.
