Does the 1st Amendment let the government ban an app? This article says that President Trump will ban the popular apps WeChat and TikTok. On the other hand the Bernstein case established (at least in the 9th Circuit) that computer software is speech. The government chose not to appeal that case at the Supreme Court, so in theory this is still unsettled outside the 9th Circuit, but lets assume for the moment that other courts will go along with this. Can the executive issue a ban on these applications? The justifications given are: Chinese companies are gathering information on US citizens, and the Chinese government could gain access to this information and use it nefarious ways. The Chinese government could impose use these apps to promote its view of the world to US citizens. However it seems to me unlikely that this would survive Strict Scrutiny Any national security concerns could be addressed by more narrowly tailored means, such as a warning notice and a ban on use by government employees or contractors with security clearance. A ban which has the side effect of preventing teenagers from uploading 15 second dance clips would not seem to be narrowly tailored. As for Chinese propaganda, I would have thought that the 1st Amendment gives the same free speech rights to the Chinese government that it gives to any other person. I've read this answer and the linked Lawfare articles which explain that the executive has the power to block commercial transactions on national security grounds, but those laws would seem to fall before the First Amendment. The Bernstein case was likewise about the power of the executive to limit speech for national security, and that argument failed. So: could a 1st Amendment argument be used to overturn this proposed ban? Edit (posted after user6726's answer): This article on TechDirt argues that the ban is in violation of the 1st Amendment. In addition to the &quot;code is speech&quot; argument, it also argues that banning security updates from people who already have the app will weaken security rather than strengthening it, and: The claim is &quot;to protect national security.&quot; We already knew that was bogus, and all of the info anyone can get from TikTok is already widely available for purchase. Edit 2: this question is being overtaken by events. A group of WeChat users have obtained a preliminary injunction on the grounds that the ban impacts their 1st Amendment rights.
The 9th Circuit decision actually held that the challenged regulations constitute a prior restraint on speech that offends the First Amendment which is not the same as saying that computer software is speech. A crucial differentiation is that by prohibiting talking about the technology, the regulations imposed a &quot;prepublication licensing scheme that burdens scientific expression&quot;, which distinguishes the TikTok case from talking about cryptography. The regulations burden business transactions, which have for a long time not been protected by strict scrutiny. The first hill one would have to climb would be showing that there is a real First Amendment issue. There is no First Amendment right for the Chinese government to spy on Americans. The second issue is whether narrow tailoring means that if someone can come up with an alternative to an outright ban, then the regulation is not narrowly-enough tailored. We may eventually get a clearer guideline on that, since state governments have imposed very many restrictions on constitutional liberties, in order to prevent the spread of covid, when a less restrictive action would be warning people that this is a dangerous disease. Many restrictions have survived strict scrutiny because they were believed to be necessary to achieve that governmental end. The executive order identifies the compelling government interest: TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage. In light of that, it is hard to see that a warning notice would be effective in the face of this threat. Seizing the company and its IP and handing it over to Microsoft would be a less restrictive measure that would probably be as effective and would be protective of the First Amendment rights of teenagers, but it would also be somewhat outside the scope of current US law, so it isn't an actual alternative. I conclude that the ban is the least restrictive effective response to the threat. But it is not entirely clear what the constitutional rules are regarding effectiveness of alternatives (does 20% less restrictive compel a 10% less effective solution?).
The courts of Washington will not apply the law of Tennessee in an action somehow involving something about Tennessee, they will apply the laws of Washington. If neither end of the conversation is in an all-party state, no party has standing to sue under the laws of some other state. If a person in Idaho calls a person in Oregon and the call is routed through Washington state, neither party can sue under Washington law. In all 50 states, there is an &quot;exception&quot; to the consent requirement when the &quot;interception&quot; is due to routing / switching, otherwise it would be illegal to call from house to house if you don't have a single wire between the houses (never the case). No state has a law that imposes two-party state law in calls that pass through a two-party state. The federal wiretapping law say you may not intercept any wire, oral, or electronic communications without consent, then sets up the definitions to encode the exceptions. For example, &quot;aural transfer&quot; is a transfer containing the human voice at any point between and including the point of origin and the point of reception (anticipating the need for connections), and &quot;intercept&quot; means &quot;acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device&quot; (a hearing aid is a device). But then &quot;electronic, mechanical, or other device&quot; is further defined to exclude a hearing aid, or also they exclude any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties which is a good thing since the telephone is a device, and the switching system is a system used to make a phone call possible, but it intercepts under the ordinary meaning of intercept. Intercept has a specific, narrow meaning. The law of Florida is very similar
IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics.
Legally there is no problem. What you say is protected speech under the 1st Amendment as long as it is either true or a matter of opinion. However Ron Beyer's comment is a good one; while legal this sounds very inadvisable. You would be far better off hiring a lawyer. The Mr Dicks of this world make money from the widespread fear of legal action. He will probably fold as soon as he sees a letter from a lawyer threatening a lawsuit. Until then stalling doesn't cost him anything so he will carry on doing it. BTW, don't delay. I don't know about the US, but over here in the UK there are a number of ways that people like Mr Dick can make it hard to collect. Don't give him time to play shell games with his assets.
I don't think any appellate court has given an opinion on whether encryption creates a reasonable expectation of privacy. This is not surprising as only recently has it come to light that the government may have weakened encryption protocols and asked for backdoors in order to aid in decryption. However, Orin Kerr, professor of Law at George Washington University School of Law wrote this article in 2001. He argues that encryption does not create a reasonable expectation of privacy. He says: the Fourth Amendment regulates access, not understanding. Once you introduce your communication into third party systems (or the garbage :P), they may give it up to the government. If the government happens to be able to understand that communication, so be it. He shows how this conclusion is consistent with how the courts have ruled on "reassembly of shredded documents, recovery of deleted files, and the translation of foreign languages". Note that the reasonable expectation of privacy test is only one of the tests used to determine whether a search or seizure is reasonable. Another test is the "trespass" test which deems an interaction to be a search per se if there is a trespass on a person's personal effects. It was used before Katz and was reiterated recently in US v Jones (2012). Regardless, your question is still meaningful because the two tests are used alongside each other.
An Art 15 Subject Access Request (SAR) “shall not adversely affect the rights and freedoms of others.” It would be a grave violation of privacy for an email provider to search its users' account contents. It is therefore likely that the email provider would refuse to fulfil that subject request, unless required to perform a search via a court order. Instead, the SAR could be directed to the account holder (Alice or Dave), if they are subject to the GDPR. Depending on the exact legal framework, emails might be protected under confidentiality of communications rules, making such searches similarly illegal to wiretapping. At least in germany, I am fairly certain that an email provider would be criminally liable if they were to disclose emails from their users' email accounts to a third party.
This page lists the highlights of case law regarding prior restraint and the First Amendment. Two pertinent cases are New York Times Co. v. United States, where the court held that despite the potential harm of publishing the revealed information, the prior restraint doctrine was more important (the government cannot prohibit speech before it happens). Reno v. ACLU affirms that even if a publication might cause harm to a class of people, that (limited) harm does not justify universally prohibiting the speech. There is no criminal penalty arising from the government censoring speech. A civil lawsuit – &quot;section 1983&quot; – is possible against an official who illegally attempts to suppress expression contra the First Amendment. The award might be just a dollar if the person so oppressed cannot prove actual damage. Technically, the sky is the limit, and it just depends on how outrageous the jury finds the government's action. If the government were to order suppression of opposition to its policies, we could easily be in the territory of world-record awards for violation of civil rights.
There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed &quot;fundamental&quot; are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is &quot;rationally related&quot; to a &quot;legitimate&quot; government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, &amp; Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of &quot;substantive Due Process&quot;, mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright.&quot; In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones.