Flynn, Mandamus, and the DC Circuit

The DC Circuit has decided to rehear General Michael Flynn’s request for a mandamus ruling ordering the DC District Court to accept Flynn’s motion—agreed and proffered by DoJ—to drop entirely the case against Flynn. The Circuit plainly does not trust the original Circuit ruling to issue the mandamus and so to order the lower court.

The Wall Street Journal has opined on the matter. While I disagree with the DC Circuit’s decision to retry the Flynn mandamus appeal en banc, I more strongly disagree with the WSJ‘s rationale for not rehearing it.

It will stoke more public cynicism about the politicization of the judiciary. This alone ought to have persuaded the DC Circuit not to rehear its panel’s decision.

No court should hear or not hear a case, or rule in a particular direction, based on public perception of the court. Every court—if it’s to preserve the legitimacy of the court and of the judiciary as a whole—must make those hear/rule decisions based only on the merits of the case at hand.

That is the subject and purpose of the judges’ oaths of office and the subject and purpose of the Judicial Branch.

Hong Kong’s Elections

They were scheduled for 6 September. Now they’re delayed by the People’s Republic of China for a year; although it was Hong Kong’s Chief Executive Carrie Lam who delivered the news.

Officially, the delay is due to the Wuhan Virus. However, the virus situation has been known for some months, but just before the decision to delay,

12 pro-democracy candidates were disqualified from running in the poll, for reasons including perceived subversive intentions, opposition to the new security law, and campaigning to win a legislation-blocking majority.

There it is in all its naked glory: that new security law that lets the PRC government in Beijing determine what is subversive and so criminal. Included in the current definition is democracy: it’s a crime for Hong Kongers to try to elect city legislators that will represent them rather than Beijing.

The move has one additional outcome: in the absence of a City legislature, the government of the PRC will fill the legislative vacuum.

This is freedom PRC style.

It Doesn’t Get Any Clearer

The good citizens of Hong Kong held massive, if informal, primary elections preliminary to the general elections that are coming up. These are pro-democracy candidates who have been selected, again informally, to stand for election.

Hong Kong’s Chief Executive Carrie Lam had this to say about that:

if the pro-democracy camp seeks enough seats to resist government policy, “then it may fall into the category of subverting the state power, which is now one of the four types of offenses under the new national security law.”

Even in the unlikely event that that…camp…were the majority party in the Hong Kong legislature, they can’t be the makers of government policy.

The principle of tyranny doesn’t get any more clearly stated than that.

Some Thoughts on TikTok

TikTok is a video messaging app that was developed in the People’s Republic of China and is owned by ByteDance, another PRC company. The Wall Street Journal published a Q&A on the app last Tuesday.

I have some thoughts, too.

For background, here are some of the data that TikTok collects just because you’re using it.

…location data and your internet address, according to its privacy policy, and it tracks the type of device you are using to access its platform. It stores your browsing and search history as well as the content of messages you exchange with others on the app.

How to locate your device in the Net, where you’ve been virtually, and what you say in your correspondence. That’s just for starters.

If you opt in, TikTok says it can collect your phone and social-network contacts, your GPS position, and your personal information such as age and phone number along with any user-generated content you post, such as photos and videos. It can store payment information, too. TikTok also gets a sense of what makes you tick. It can track the videos you like, share, watch….

Your physical location, and all that personally identifying information. It exposes your contacts, too, without their having any opportunity to reject “opting in.”

Now, some of the rest of the story:

Why is the US concerned?
Beijing performing mass data collection on American citizens….
…a vast database of information that could be used for espionage…if TikTok’s user data could be obtained by the Chinese government, that would enhance any such efforts. “You can use [artificial intelligence tools] to sort through it and find an awful lot of data….”

And this:

A TikTok spokesman said that the Chinese government has never asked the company for user data and that it would refuse such a request. “TikTok has an American CEO and is owned by a private company that is backed by some of the best-known US investors[.]”

This is a disingenuous claim. What the PRC has or has not done in the past in this regard is wholly irrelevant to what it can do. The more important thing, too, is what it can do. Under a PRC 2017 national intelligence law, all PRC companies and people are required to comply with any and all intel community requests for intel-related information. What is intel-related is determined by the intel community. Under the just-passed Hong Kong national security law, the PRC government has arrogated to itself the authority to go after any entity or person it deems a national security threat—wherever that entity or person is located, under whatever sovereign nation jurisdiction that entity or person resides, in the world.

TikTok, owned by ByteDance, is as subject to those laws as is ByteDance.

Does TikTok share any information with ByteDance, its China-based parent?
TikTok stores its data on American users on servers in the US and Singapore, but its website says that information can be shared with ByteDance or other affiliates.

Not only can be shared, but will be. Nor will it matter what firewalls ByteDance might claim to have erected between it and its subordinate—limiting the number of employees who have access to user data and the scenarios where data access is enabled, for instance—the parent organization can tear them down at will. And can be expected to, as necessary, to satisfy information demands from the PRC’s intel community.

As for those “other affiliates”—some of them may well be within the PRC.

What happens to your data if you quit TikTok?
Users can ask TikTok to delete their data, and the company has said in its policy that it will respond in a manner consistent with applicable law upon verifying your identity.

Users are supposed to believe TikTok’s wide-eyed innocent claim to have complied, even though they have no means of independently verifying TikTok’s assertion. But the kicker is that manner consistent with applicable law caveat. Two of those applicable laws are the PRC’s security laws mentioned above.

This is not a bit of software that should appear anywhere on anyone’s device.

Free Speech, Free Assembly

Here is how two clauses of our Constitution’s First Amendment will be enforced under a Progressive-Democrat administration.

Officials in the city of Houston, Texas have cancelled the state’s Republican convention. On Wednesday, Democrat Mayor Sylvester Turner announced he has instructed the city’s convention center to cancel the event.

Today I instructed the Houston First Corporation to exercise its right contractually in cancelling the State’s Republican Convention that was set to take place next week at GRB. #COVID19
— Sylvester Turner (@SylvesterTurner) July 8, 2020

It was supposed to be held there next week, but Turner claimed it would’ve posed a “clear and present” danger.

Notice: the Progressive-Democrat mayor carefully waited until virtually the last minute to block the Texas Republican Party’s convention. By waiting until so late in the game, Turner has made it exceedingly difficult if not impossible for the party and its members to exercise their free assembly rights and free speech rights, except on a schedule acceptable to the Progressive-Democrats. Which Turner has carefully omitted to lay out.