The Future of China\u27s U.S.-Listed Firms: Legal and Political Perspectives on Possible Decoupling

There is a long history of Chinese firms raising capital on leading U.S. exchanges. These shares have proved attractive and are estimated at $1 trillion value, in spite of deep mismatches between Chinese internal approaches to corporate governance and those taken under U.S. securities regulations. Chinese listings of nonstate firms, particularly in the technology sector, had depended on a largely laissez-faire initial approach to the expansion through foreign listings, including tolerance of the opaque Variable Interest Entity (VIE) structures adopted as a means to bypass Chinese restrictions on foreign ownership. Concerns regarding data security had, however, prevented compliance by Chinese firms listed in the United States with audit inspection requirements, and these mismatches in the United States have now led to Chinese firms being on shaky ground on both sides of the U.S.-China fault-line. U.S.-listed Chinese companies have faced the looming threat of delisting under the Holding Foreign Companies Accountable Act (HFCAA), enacted in response to both non-compliance with audit inspection requirements and concerns about the opaque nature of VIEs and possibilities of Chinese state control. Admittedly, fears of mass delistings under the HFCAA in the near future have been allayed by Chinese agreement as to U.S. audit inspections, and the 2022 finding of two Chinese firms to be compliant with U.S. regulations. There remains, however, heightened levels of Chinese state involvement in the affairs of nonstate companies with further potential to bring strain, as Communist Party policies have changed dramatically in recent years, alongside heightened geopolitical tensions. The data concerns that had prevented audit inspections have not disappeared and, in fact, have grown. These, together with some other harmful Chinese state strategies impressed upon nonstate firms and preferences for Chinese firms to look inwards for capital, as well as a damaging trade war in semiconductors, present remaining concerns regarding investments in U.S.-listed Chinese firms. Immediate concerns regarding delistings under the HFCAA may have abated but there may be other firms for which compliance may be difficult, and there remains potential for future delistings, presenting risks for U.S. investors. These Chinese firms may find the exit voluntarily whilst the stream of U.S. listings by Chinese companies will slow. It will not yet amount to a decoupling, but investors should be wary

The Communitarian Deficit in the USA: Three Telling Cases

Liberal communitarianism suggests that the balance between individual rights and the common good must be adjusted as historical conditions change. Much attention has been paid to violations of rights, e.g., by the police, for good reasons. This Article examines three new technologies that undermine public safety, a key common good, and asks whether they should be banned. The 2020 pandemic revealed that scores of millions of Americans objected, not merely to government mandates to take measures that are likely to spare fellow Americans a severe disease or death, but even to respond to moral calls, especially wearing a mask. This Article examines three other areas which exhibit the same communitarian deficit. The best-known version of communitarianism is the East Asian school, which puts great emphasis on the value of the common good and one’s obligations to the community.3 This school of thought tends to view the individual as a cell that is part of an organic whole and meaning is derived from contributions to whole. In this version of communitarianism, there is no fundamental place for liberty or individual rights, although some may be granted, if doing so helps the common good. East Asian communitarianism is roundly rejected by Western intellectuals and all others who consider individual rights and liberty a core value. Liberal communitarianism has corrected the main flaw of the Asian version by combining two fundamentally opposing philosophies: liberalism and communitarianism. Liberal communitarianism assumes from the outset that a society ought to treat both individual rights and the common good as basic moral principles and that neither should be assumed to a priori trump the other. It does not overlook the fundamentally incompatible nature of liberalism and communitarianism; rather, it seeks to embrace their incompatibilities, because one’s strength is the other’s deficiency. Liberal communitarians recommend a constant balancing of the two sets of moral principles, requiring legislators and citizens alike to weigh the common good against individual rights to create policies and social norms that protect both. When the common good and liberty come into conflict, liberal communitarians must rule which should take precedence. The Fourth Amendment captures extremely well the basic liberal communitarian thesis. Unlike the First Amendment, which states that “Congress shall make no law,” the Fourth protects against “unreasonable searches and seizures,” which on the face of it recognizes a whole category of searches and seizures that are constitutional—those that are reasonable, i.e., in the public interest. Moreover, the Fourth Amendment provides a mechanism for determining when searches and seizures are allowed: the courts. The courts, in turn, are affected by and have an influence on the public discourse as well as the legislature. Societies constantly correct the balance between individual rights and social responsibilities as historical conditions change. Thus, after the 2001 attacks on the U.S. homeland, Congress rushed through a series of new security measures. When no new such attacks occurred over the next decade, these measures where reigned in. In short, liberal communitarians hold that no society can or should be designed according to one set of principles, that they can be more liberal or more communitarian, and that the relative weight accorded to the two sets of principles much change within history. Recently, much attention has been paid in the United States, for very compelling reasons, to violations of individual rights by the police, to racism embedded in many American institutions, and to high tech corporations that invade privacy among others.19 A cursory examination of the daily press will find many more such reports. More attention should be paid to those instances in which the imbalance is titled the other way: the common good is unduly neglected. Three case studies follow, each of considerable weight in terms of the scope of their effects on public safety, arguably the leading common good, or what the courts tend call the public interest

Me, Myself and I: Aggregated and Disaggregated Identities on Social Networking Services

In this article I explore some of the legal issues arising from the transformation of SNS operators to providers of digital identity. I consider the implications of the involvement of private sector entities in the field of identity management and discuss some of the privacy implications, as well as the prospects for conciliation between online anonymity and pseudonymity, on the one hand, and the need for identifiability and accountability on the other hand.

Turning Privacy Inside Out

The problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to theorizing privacy also wrestle with deeply embedded contradictions. And privacy’s most enduring institutional failure modes flow from its insistence on placing the individual and individualized control at the center. Strategies for rescuing privacy from irrelevance involve inverting both established ways of talking about privacy rights and established conventions for designing institutions to protect them. In terms of theory, turning privacy inside out entails focusing on the conditions that are needed to produce sufficiently private and privacy-valuing subjects. Institutionally, turning privacy inside out entails focusing on the design, production, and operational practices most likely to instantiate and preserve those conditions

Protecting the Right to Privacy in Digital Devices: Reasonable Search on Arrest and at the Border

Canada’s courts in recent years have consistently recognized a high degree of privacy in the content of digital devices. Yet the law authorizing device searches on arrest and at the border has failed to reflect this higher interest. In both contexts, courts have assumed that the state has a compelling interest in immediate access to device data to advance pressing law enforcement objectives – but the claim is not supported by evidence. This paper builds upon earlier critical views of device search law and policy by demonstrating that searches are being carried out on arrest and at the border without clear limits, resulting in significant intrusions into personal privacy, and without effective avenues of recourse. Part I critically examines the Supreme Court’s justification in Fearon for authorizing device searches on arrest, including its dismissal of the US Supreme Court’s approach in Riley v California (requiring a warrant). It then presents evidence to support the dissent’s argument that the majority’s test provides ineffective guidance to police to avoid unreasonable searches, and that the exclusion of evidence is not an adequate remedy. Part II examines the Canada Border Services Agency’s rationale and practice for groundless device searches under the Customs Act. It considers proposals for reform, including a Parliamentary report in late 2017 recommending a requirement of reasonable suspicion. Finally, it argues that the guarantee against unreasonable search in section 8 of the Charter requires a warrant for device searches at the border, because the state’s interest in searching devices there is less pressing than the state’s interest in searching a person

The use of malware as a means of obtaining evidence in Portuguese criminal proceedings

David Silva Ramalho outlines the legislative development of using malware in the Cybercrime Law as a technological device to be used in covert operations. He illustrates that the terms in which this provision was foreseen lacks clarity, precision and most of all respect for the defendant’s rights, thus raising doubts as to its constitutionality. Index words: Portugal; malware; obtaining evidence; legality; criminal proceeding