January 2021

Ways to Lose Our Virtual Platforms: From TikTok to Parler

Mengmeng Du, MJLST Staffer

Many Americans bid farewell to the somewhat rough 2020 but found the beginning of 2021 rather shocking. After President Trump’s followers stormed the Capitol Building on January 6, 2021, major U.S. social media, including Twitter, Facebook, Instagram, and Snapchat, moved fast to block the nation’s president on their platforms. While everybody was still in shock, a second wave hit. Apple’s iOS App stores, Google’s Android Play stores, Amazon Web Services, and other service providers decided to remove Parler, an app used by Trump supporters in the riot and mostly favored by conservatives. Finding himself virtually homeless, President Trump relocated to TikTok, a Chinese owned short-video sharing app   relentlessly sought to ban ever since July 2020. Ironically but not unexpected, TikTok banned President Trump before he could even ban TikTok.

Dating back to June 2020, the fight between TikTok and President Trump germinated when the app’s Chinese parent company ByteDance was accused of discreetly accessing the clipboard content on their users’ iOS devices. Although the company argued that the accused technical feature was set up as an “anti-spam” measure and would be immediately stopped, the Trump administration signed Executive Order 13942 on August 6, 2020, citing national security concerns to ban the app in five stages. TikTok responded swiftly , the District Court for the District of Columbia issued a preliminary injunction on September 27, 2020. At the same while, knowing that the root of problem lies in its “Chinese nationality,” ByteDance desperately sought acquisition by U.S. corporations to make TikTok US-owned to dodge the ruthless banishment, even willing to give up billions of dollars and, worse, its future in the U.S. market. The sale soon drew qualified bidders including Microsoft, Oracle, and Walmart, but has not advanced far since September due to the pressure coming from both Washington and Beijing.

TikTok, in the same Executive Order was another Chinese app called WeChat. If banning TikTok means that American teens will lose their favorite virtual platform for life-sharing amid the pandemic, blocking WeChat means much more. It heavily burdens one particular minority group––hundreds and thousands of Chinese Americans and Chinese citizens in America who use WeChat. This group fear losing connection with families and becoming disengaged from the social networks they have built once the vital social platform disappears. For more insight, this is a blog post that talks about the impact of the WeChat ban on Chinese Students studying in the United States.

In response to the WeChat ban, several Chinese American lawyers led the creation of U.S. WeChat Users Alliance. Supported by thousands of U.S. WeChat users, the Alliance is a non-profit organization independent of Tencent, the owner of WeChat, and was formed on August 8, 2020 to advocate for all that are affected by the ban. Subsequently, the Alliance brought suit in the United States District Court for the Northern District of California against the Trump administration and received its first victory in court on September 20, 2020 as Judge Laurel Beeler issued a preliminary injunction against Trump’s executive order.

Law is powerful. Article Two of the United States Constitution vested the broad executive power in the president of this country to discretionally determine how to enforce the law via issuance of executive orders. Therefore, President Trump was able to hunt a cause that seemed satisfying to him and banned TikTok and WeChat for their Chinese “nationality.” Likewise, the First Amendment of the Constitution and section 230 of the Communication Decency Act empowers private Internet forum providers to screen and block offensive material. Thus, TikTok, following its peers, finds its legal justification to ban President Trump and Apple can keep Parler out of reach from Trump supporters. But power can corrupt. It is true that TikTok and WeChat are owned by Chinese companies, but an app, a technology, does not take on nationality from its ownership. What happened on January 6, 2021 in the Capitol Building was a shame but does not justify removal of Parler. Admittedly, regulations and even censorship on private virtual platforms are necessary for national security and other public interest purposes. But the solution shouldn’t be simply making platforms unavailable.

As a Chinese student studying in the United States, I personally felt the of the WeChat ban. I feel fortunate that the judicial check the U.S. legal system puts on the executive power saved WeChat this time, but I do fear for the of internet forum regulation.

 


How the U.S. Government Broke Its Treaty Obligations Before the Pandemic Struck: COVID-19 Illuminates How the U.S. Government Have Failed Native Communities

Ingrid Hofeldt, MJLST Staffer

As COVID-19 first began to ravage Native American tribal lands, the U.S. government’s treaty-solidified responsibility to protect tribes against external disasters was triggered. However, Native American communities’ reluctance to receive vaccinations showcases how the U.S. government’s treaty obligations require it to take proactive steps to ensure the advancement of healthcare on tribal lands and to attempt to mend the longstanding medical trauma of Native communities and resulting friction with the U.S. government.

Healthcare Disparities Before COVID-19

Since the invasion of Europeans, Native American communities have faced health crises. The European invaders both inadvertently spread smallpox, measles, and the flu, and launched biological warfare against Native communities. Around 90% of Native peoples were murdered or died through the spread of disease. Even after the most egregious periods of the genocide against Native Americans, indigenous communities continued to experience disparities in health outcomes. During the 1918 pandemic, the influenza struck Native populations with four times the severity of the general population, which resulted in 2% of Native peoples dying, and the near extinction of entire villages. 

Today, Native American communities continue to face disparities in health outcomes. Native Americans  have above average rates of immunocompromising diseases including diabetes, asthma, heart disease, cancer, respiratory diseases, hypertension, PTSD, and other mental health disorders. Native Americans are 600 times more likely than non-Native people to die of tuberculosis and 200 times more likely to die of diabetes. These rates exist in part because of the lack of resources available on reservations, which are home to 50% of the U.S. Native American population. Limited healthcare services, overcrowded housing, and lack of access to running water, proper sewage, and broadband internet[1] on reservations all contribute to reduced healthcare outcomes. A burgeoning elderly population, a quarter of whom lack health insurance, also adds to the difficulties facing Native healthcare services and tribal governments. 

The Crisis of COVID-19 for Native American communities and Reservations

Unsurprisingly, COVID-19 has spread across reservations like wildfire. Navajo Nation has had more deaths per capita than any state in the country. While Native Americans comprise 3% of Wyoming’s population and 6% of Arizona’s, they represent 33% and 16% of COVID-19 cases respectively. These disparities have emerged for a variety of reasons, from the higher rates of pre-existing conditions discussed above, which each exacerbate the severity and lethality of COVID-19, to lack of healthcare resources. Reservations experience the same shortages of doctors, hospitals, and medical resources common among rural areas. Additionally, limited grocery stores and multigenerational housing increase the risk of COVID-19 spread.

Beyond these existing disparities and lack of resources, the federal government’s mismanagement of resources designated for Native American communities has worsened the crisis of COVID-19 on reservations. While Congress distributed $80 million in COVID-19 relief funds to the Indian Health Services, 98% of tribal clinics have still not received their funds because of the federal government’s failure to properly disperse the funds. Testing has been largely absent from reservations, which causes cases to go unreported. Additionally, the federal government used census data, rather than tribal enrollment data,  to calculate distribution of resources in reservations. Because Native people are hugely undercounted in the census, reservations have received inadequate supplies of PPE, cleaning supplies, and tests. For example, the Sault Ste. Marie Tribe of Chippewa Indians only received 2 test kits for a population of 44,000. Meanwhile, the Seattle Indian Health Board was sent body bags in lieu of medical supplies

The U.S. Government’s Responsibility to Tribes

The U.S. government’s actions and inactions run afoul of multiple treaties, established case law, and the central tenants of Indian law. Numerous treaties between the U.S. government and tribal nations established tribes as sovereign political nations that the U.S. government must protect from external threats, ranging from foreign invasion to natural disasters. The Supreme Court has affirmed the dual sovereignty of tribal nations and the U.S. government’s obligations to tribes. 

Treaties between tribes and the U.S. government have both established this broad principle of the government’s responsibility to ensure the health and wellbeing of Native peoples and provided specific responsibilities requiring the U.S. government to provide vaccines, medicine, and physicians to Native peoples on reservations. In theory, the land tribes ceded to the U.S. government was a form of pre-payment for adequate healthcare. In 1955, the U.S. government established the Indian Health Services (IHS), to ensure that the U.S. government met its implied responsibility to ensure the adequate healthcare of Native peoples. Congress has also conceded that the U.S. government has a responsibility to “improve the services and facilities of Federal Indian health programs and encourage maximum participation of Indians” in those programs, which “the Federal Government’s historical and unique legal relationship with, and resulting responsibility to the American Indian people” requires. Congress has recognized that the current unmet health needs of tribes are “severe” and implicate “all other Federal services and programs in fulfillment of the Federal responsibility to Indians” which are “jeopardized by the low health status of the American Indian people.” 

How the U.S. Government Has Violated Its Treaty Obligations During the COVID-19 Crisis

As the U.S. government charges forward with the COVID-19 vaccination program, the COVID-19 healthcare disparities and the long history of medical trauma in Indian country compound one another. Many Native Americans living on reservations express skepticism over the vaccine program given the genocide committed against Native peoples through medicine and the government’s current mishandling of the COVID-19 crisis. Currently, an estimated 50% of people on the Spirit Lake Reservation do not plan to receive vaccinations. While the government spent centuries committing biological warfare against Native peoples, the medical community has enacted great harm against Native people relatively recently. Within the past 100 years, the U.S. government has conducted testing of radioactive iodine on Alaska Natives and widely distributed vaccines that proved less effective or ineffective for Native people. In the 1970’s, the U.S. government mass sterilized Native Americans without their consent. Further, in 2009, the U.S. government mishandled the H1N1 crisis on reservations, exacerbating this existing lack of trust. 

The tenuous relationship between tribes and the government has only worsened during the COVID-19 crisis as a result of the mismanagement of tribal healthcare. Many Native people worry that the federal government is withholding the risks of the COVID-19 vaccine. Native healthcare providers stress that the U.S. government must work to cultivate community support for its healthcare initiatives and ensure informed consent from each Native person for any medical procedure. The longstanding, positive relationship between Johns Hopkins University medical researchers and the Navajo people is a testament to the benefits of long standing relationships between tribes and researchers built on trust.

In light of the long history of healthcare issues and violations on reservations, the current mishandling of the COVID-19 crisis on reservations, and the fear of vaccination in many tribal communities, it becomes clear that the U.S. government’s treaty obligations related to healthcare must be rethought, recalibrated, and redefined. The U.S. government should not merely intervene when a pandemic strikes, but should take proactive, constructive steps before crisis strikes to ensure that Native peoples will receive adequate healthcare during both normal times and widespread calamities. It was no secret to the government that a pandemic would prove disastrous for tribes: public health experts have long foreshadowed the severity of a pandemic for tribal populations. Merely throwing money at tribes once disaster strikes will not solve the longstanding health and healthcare issues on reservations that complicate the virus. 

 Funds alone cannot solve the complex, socio-political healthcare issues complicated by historical trauma. Beyond dispersing funds through IHS, the U.S. government should consider organizing focus groups on reservations between elders, traditional healers, tribal government leaders, and immunologists from the CDC and public health officials to discuss steps moving forward. Additionally, to ensure treaty obligations, the U.S. government must tackle the more difficult long standing issues such as the lack of agency tribes hold over medical research and the distrust between the federal government and Native communities. To achieve equitable healthcare for tribes, Native people cannot merely be pushed to the sidelines as participants or involved minimally as nurses and doctors but not as researchers. The federal government should use funds to ensure that young Native Americans have available programming on science, STEM careers, and pathways into medicine. While not a conclusive end to the medical trauma Native communities have experienced, providing partnerships in medical research to researchers from Native communities will hopefully both shed a spotlight on healthcare disparities within Native communities and rebuild the frayed and broken trust between Native communities and medical researchers. 

Regardless of what steps are taken, the strength and organizing of Native communities during the COVID-19 pandemic deserves recognition. In the words of Jonathan Nez, Navajo Nation president, “We are resilient . . . our ancestors got us to this point . . .  now it is our turn to fight hard against this virus.”

 

[1] 13% of American Indian/Alaska Native homes lack running water or sewage compared to 1% of homes nationwide. In the Navajo Nation, ⅓ of homes lack running water.