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Big Tech files anti-Trump brief: Immigration ban illegal and damaging to business

Apple, Facebook, Google, Microsoft join battle

By Kieren McCarthy, 6 Feb 2017

Updated The world of Big Tech has joined the legal showdown over Donald Trump's immigration ban, with a joint filing that argues the ban is not only illegal but would damage their businesses.

Apple, Facebook, Google and Microsoft as well as another 94 tech companies including Netflix, Dropbox, Uber and Twitter have coordinated on the legal brief, effectively pitching an entire industry against the president.

The list is so extensive that the absence of a company is noteworthy: Amazon, for example, is not listed because it is already a witness in the case against the president's order. Meanwhile, Elon Musk's businesses SpaceX and Tesla are absent, with Musk seemingly joining Trump's two-man tech support team of himself and Peter Thiel.

The 53-page amicus brief [PDF] is more of a supporting document to the main lawsuit against Trump's order – a legal challenge led by the State of Washington. Other supporting briefs include one signed by over 250 law professors [PDF], one from the American Civil Liberties Union (ACLU), and another from the Southern Law Poverty Center.

Each brief lays out why the co-signees believe Trump's executive order in which people from seven majority-Muslim countries are prevented from entering the United States is illegal.

By focusing on specific countries, President Trump has illegally discriminated on nationality, argued the tech brief. And while it acknowledged that the president has broad powers over who can enter the country, discretion must be used "in a rational manner" – Trump instead has acted "arbitrarily".

The brief also highlighted the impact of the ban on their businesses and the broader American economy. It argued that the United States gains "immense advantages from immigrants' infusion of talents, energy, and opportunity" – more than a third of Silicon Valley workers are immigrants from other countries.

It further argued that the executive order makes it "more difficult and expensive for US companies to recruit, hire, and retain some of the world's best employees. It disrupts ongoing business operations. And it threatens companies' ability to attract talent, business, and investment to the United States."

The brief also warns that the ban would have the effect of strengthening other economies at the expense of the US economy arguing that it will "incentivise both immigration to and investment in foreign countries rather than the United States."

Chaos

The brief – and the other filings – represented an extraordinary challenge to a president that has been in power less than a month.

The executive order restricting entry into the United States caused chaos airports across the country. The order has not been passed through the normal governmental departments, catching people unaware and leading to widespread confusion on how to apply the rules and to whom.

That confusion grew worse when the Department of Homeland Security clarified that legal permanent residents (green card holders) were not affected by the ban, only to have White House advisors attempt to overrule that decision.

Late last week, a federal judge in Seattle had had enough and put a temporary restraining order on the ban, sparking a furious public response from President Trump. He was then further infuriated when the Justice Department's request for an emergency injunction overturning that decision was turned down by the Appeals Court in San Francisco.

That Appeals Court will now hear legal arguments on Monday, with the decision on whether to lift the restraining order likely made on the basis of the filed briefs alone i.e. without oral argument in court. It is expected to make a decision quickly, hence the extraordinary speed with which the tech industry has put together a brief over the weekend.

Whatever decision is made at that hearing will almost certainly be challenged by the losing side up to the Supreme Court: a process that could drag on for months. The big question then will be whether the ban is in force during that time or not.

Silicon Valley – and California in general – is not a fan of President Trump or his policies. But tech leaders largely stayed quiet during the tumultuous early weeks of the presidency. And while the immigration ban has infuriated many, it was reported that the White House intended to extend its restrictions to the visa system – particularly the H-1B working visa – that really set off alarm bells in tech boardrooms. ®

Updated to add

We're now hearing that Elon Musk's SpaceX and Tesla businesses have added themselves to the brief, thus objecting to Donald's immigration clampdown.

The Register - Independent news and views for the tech community. Part of Situation Publishing