Day: July 27, 2024

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HONOLULU — A Hawaii judge has temporarily blocked the state from enforcing a law requiring the licensing of practitioners and teachers of traditional Native Hawaiian midwifery while a lawsuit seeking to overturn the statute wends its way through the courts.

Lawmakers enacted the midwife licensure law, which asserted that the “improper practice of midwifery poses a significant risk of harm to the mother or newborn, and may result in death,” in 2019. Violations are punishable by up to a year in jail, plus thousands of dollars in criminal and civil fines.

The measure requires anyone who provides “assessment, monitoring, and care” during pregnancy, labor, childbirth and the postpartum period to be licensed.

A group of women sued, arguing that a wide range of people, including midwives, doulas, lactation consultants and even family and friends of the new mother would be subject to penalties and criminal liability.

Their complaint also said the law threatens the plaintiffs’ ability to serve women who seek traditional Native Hawaiian births.

Judge Shirley Kawamura issued a ruling late Tuesday afternoon barring the state from “enforcing, threatening to enforce or applying any penalties to those who practice, teach, and learn traditional Native Hawaiian healing practices of prenatal, maternal and child care.”

Plaintiffs testified during a four-day hearing last month that the law forces them to get licensed through costly out-of-state programs that don’t align with Hawaiian culture.

Ki’inaniokalani Kahoʻohanohano testified that a lack of Native Hawaiian midwives when she prepared to give birth for the first time in 2003 inspired her to eventually become one herself. She described how she spent years helping to deliver as many as three babies a month, receiving them in a traditional cloth made of woven bark and uttering sacred chants as she welcomed them into the world.

The law constitutes a deprivation of Native Hawaiian customary rights, which are protected by the Hawaii constitution, Kawamura’s ruling said, and the “public interest weighs heavily towards protecting Native Hawaiian customs and traditions that are at risk of extinction.”

The dispute is the latest in a long debate about how and whether Hawaii should regulate the practice of traditional healing arts that date to well before the islands became the 50th state in 1959. Those healing practices were banished or severely restricted for much of the 20th century, but the Hawaiian Indigenous rights movement of the 1970s renewed interest in them.

The state eventually adopted a system under which councils versed in Native Hawaiian healing certify traditional practitioners, though the plaintiffs in the lawsuit say their efforts to form such a council for midwifery have failed.

The judge also noted in her ruling that the preliminary injunction is granted until there is a council that can recognize traditional Hawaiian birthing practitioners.

“This ruling means that traditional Native Hawaiian midwives can once again care for families, including those who choose home births, who can’t travel long distances, or who don’t feel safe or seen in other medical environments,” plaintiff and midwife trainee Makalani Franco-Francis said in a statement Wednesday. “We are now free to use our own community wisdom to care for one another without fear of prosecution.”

She testified last month how she learned customary practices from Kahoʻohanohano, including cultural protocols for a placenta, such as burying it to connect a newborn to its ancestral lands.

The judge found, however, that the state’s regulation of midwifery more broadly speaking is “reasonably necessary to protect the health, safety, and welfare of mothers and their newborns.”

The ruling doesn’t block the law as it pertains to unlicensed midwives who do not focus on Hawaiian birthing practices, said Hillary Schneller, an attorney with the Center for Reproductive Rights, which represents the women. “That is a gap that this order doesn’t address.”

The case is expected to continue to trial to determine whether the law should be permanently blocked.

The state attorney general’s office said in an email Wednesday that it was still reviewing the decision.
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WASHINGTON — In a fresh broadside against one of the world’s most popular technology companies, the Justice Department late Friday accused TikTok of harnessing the capability to gather bulk information on users based on views on divisive social issues like gun control, abortion and religion.

Government lawyers wrote in a brief filed to the federal appeals court in Washington that TikTok and its Beijing-based parent company ByteDance used an internal web-suite system called Lark to enable TikTok employees to speak directly with ByteDance engineers in China.

TikTok employees used Lark to send sensitive data about U.S. users, information that has wound up being stored on Chinese servers and accessible to ByteDance employees in China, federal officials said.

One of Lark’s internal search tools, the filing states, permits ByteDance and TikTok employees in the U.S. and China to gather information on users’ content or expressions, including views on sensitive topics, such as abortion or religion. Last year, The Wall Street Journal reported TikTok had tracked users who watched LGBTQ content through a dashboard the company said it had since deleted.

The new court documents represent the government’s first major defense in a consequential legal battle over the future of the popular social media platform, which is used by more than 170 million Americans. Under a law signed by President Joe Biden in April, the company could face a ban in a few months if it doesn’t break ties with ByteDance.

The measure was passed with bipartisan support after lawmakers and administration officials expressed concerns that Chinese authorities could force ByteDance to hand over U.S. user data or sway public opinion towards Beijing’s interests by manipulating the algorithm that populates users’ feeds.

The Justice Department warned, in stark terms, of the potential for what it called “covert content manipulation” by the Chinese government, saying the algorithm could be designed to shape content that users receive.

“By directing ByteDance or TikTok to covertly manipulate that algorithm; China could for example further its existing malign influence operations and amplify its efforts to undermine trust in our democracy and exacerbate social divisions,” the brief states.

The concern, they said, is more than theoretical, alleging that TikTok and ByteDance employees are known to engage in a practice called “heating” in which certain videos are promoted in order to receive a certain number of views. While this capability enables TikTok to curate popular content and disseminate it more widely, U.S. officials posit it can also be used for nefarious purposes.

Justice Department officials are asking the court to allow a classified version of its legal brief, which won’t be accessible to the two companies.

Nothing in the redacted brief “changes the fact that the Constitution is on our side,” TikTok spokesperson Alex Haurek said in a statement.

“The TikTok ban would silence 170 million Americans’ voices, violating the 1st Amendment,” Haurek said. “As we’ve said before, the government has never put forth proof of its claims, including when Congress passed this unconstitutional law. Today, once again, the government is taking this unprecedented step while hiding behind secret information. We remain confident we will prevail in court.”

In the redacted version of the court documents, the Justice Department said another tool triggered the suppression of content based on the use of certain words. Certain policies of the tool applied to ByteDance users in China, where the company operates a similar app called Douyin that follows Beijing’s strict censorship rules.

But Justice Department officials said other policies may have been applied to TikTok users outside of China. TikTok was investigating the existence of these policies and whether they had ever been used in the U.S. in, or around, 2022, officials said.

The government points to the Lark data transfers to explain why federal officials do not believe that Project Texas, TikTok’s $1.5 billion mitigation plan to store U.S. user data on servers owned and maintained by the tech giant Oracle, is sufficient to guard against national security concerns.

In its legal challenge against the law, TikTok has heavily leaned on arguments that the potential ban violates the First Amendment because it bars the app from continued speech unless it attracts a new owner through a complex divestment process. It has also argued divestment would change the speech on the platform because a new social platform would lack the algorithm that has driven its success.

In its response, the Justice Department argued TikTok has not raised any valid free speech claims, saying the law addresses national security concerns without targeting protected speech, and argues that China and ByteDance, as foreign entities, aren’t shielded by the First Amendment.

TikTok has also argued the U.S. law discriminates on viewpoints, citing statements from some lawmakers critical of what they viewed as an anti-Israel tilt on the platform during its war in Gaza.

Justice Department officials disputes that argument, saying the law at issue reflects their ongoing concern that China could weaponize technology against U.S. national security, a fear they say is made worse by demands that companies under Beijing’s control turn over sensitive data to the government. They say TikTok, under its current operating structure, is required to be responsive to those demands.

Oral arguments in the case is scheduled for September. 
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