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Picking up the pieces after ‘Don’t Ask’ defeat

Repeal supporters pin hopes on lame duck session after election

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Supporters of “Don’t Ask, Don’t Tell” repeal are picking up the pieces after a devastating loss in the U.S. Senate and ā€” amid fears the opportunity for repeal has been lost ā€” anticipating another shot at passing legislation that would end the law after Election Day.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he continues to see a path for legislative repeal of “Don’t Ask, Don’t Tell” this Congress as he acknowledged the need for new efforts.

“We do have a shot in the lame duck,” he said. “And, I think, frankly, it’s better than 50/50, but we’ve got to change the mix. ā€¦ It’s unlikely the vote will be that different.”

Still, Sarvis said “time is the enemy” even as he maintained that sufficient time remains this year to move forward with “Don’t Ask, Don’t Tell” repeal.

“We’re only talking about four or five days in November, and it’s unclear how many days in December,” Sarvis said. “This bill is tough to do in the best of circumstances when you aren’t up against time. I think it can be done, but time is a factor for sure.”

Alex Nicholson, executive director of Servicemembers United, said the legislative route to repeal will be a “challenge” and “those who let this vote fail yesterday really made it difficult for us all moving forward.”

“But we have no choice but to give it our all and try our best to push it through,” Nicholson said.

Jim Manley, a spokesperson for Sen. Harry Reid (D-Nev.), confirmed the majority leader’s plans to move forward with the defense authorization bill later this year.

“Sen. Reid reserved the right to reconsider the vote and that is what we intend to do at some point in the future,” Manley said.

Even before the vote, speculation and promises that Senate leaders would try again to start work on the defense authorization had emerged.

Sen. Joseph Lieberman (I-Conn.), the sponsor of Senate standalone repeal legislation, said Tuesday during a news conference he’s received assurances from Senate Majority Leader Harry Reid (D-Nev.) that the bill would come up again in the lame duck session after Election Day.

ā€œIf for some reason, we donā€™t get the 60 votes to proceed, this ainā€™t over,ā€ Lieberman said. ā€œWeā€™re going to come back into session in November or December. I spoke to Sen. Reid [Tuesday]. Heā€™s very clear and strong that heā€™s going to bring this bill to the floor in November or December.ā€

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said during a later news conference that he hopes the prospects for passing the defense authorization bill would be different after Election Day, but couldn’t offer more details.

“But as chairman of the committee, I’m going to do everything I can to get this bill before the Senate so that it’s subject to debate and amendment,” Levin said. “But I can’t discern what that path is at the moment. It’s too soon after the filibuster damage has been done.”

At least one political analyst is skeptical about the passage of “Don’t Ask, Don’t Tell” repeal in Congress this year.

Larry Sabato, a political scientist at the University of Virginia, expressed doubt about passage after Election Day ā€” even as he acknowledged that “a lame duck session can be unpredictable.”

“From the perspective of September, the odds seem clearly against passage this year,” Sabato said. “Repeal of [‘Don’t Ask, Don’t Tell’] would have to be fast-tracked, and that requires broad agreement in the Senate. That’s unlikely.”

On Tuesday, the U.S. Senate failed to invoke cloture to bring to the floor the fiscal year 2011 defense authorization bill ā€” legislation to which “Don’t Ask, Don’t Tell” repeal language is attached.

The vote in the Senate was 56-43, which was shy of the 60 votes necessary to end the filibuster from Sen. John McCain (R-Ariz.).

A unified GOP caucus ā€” in addition to Democratic Arkansas Sens. Mark Pryor and Blanche Lincoln ā€” comprised the ā€œnoā€ votes that defeated a cloture vote. Sen. Lisa Murkowski (R-Alaska) was the only senator who didn’t vote.

Reid changed his vote to “no” on the legislation in a procedural move that would enable him to bring the legislation to the floor again.

Sarvis said the failure of the Senate to invoke cloture on the defense authorization bill is “shameful” because it means the continued discharge of gay, lesbian and bisexual service members.

“That vote means that gay and lesbian service members are going to continue to be discharged every day while Republicans and Democrats in the Senate figure out how to move forward,” Sarvis said.

Sarvis said the LGBT community needs to “express more outrage” over the vote to convince Senate leaders to schedule the vote again and for successful passage.

“If we aren’t offended, if we aren’t outraged by this vote, I’m not sure how the political dynamics change,” Sarvis said. “Yes, things will be somewhat better after the mid-term elections are behind us, but the few determined opponents are still going to be there.”

Various explanations have been offered for the loss on Tuesday, although partisan politics are widely seen as the reason for failure.

Some faulted the GOP caucus for being obstinate in its vote against cloture even though many Republican senators previously expressed support for the defense authorization bill as a whole.

In a news conference following the vote, Levin called the unified GOP obstruction of the defense authorization bill “outrageous and sad.”

Levin accused the GOP of initially opposing the move forward with the defense authorization bill because of the language that would lead to an end to “Don’t Ask, Don’t Tell.”

“For two days, we’ve heard here that they objected to our proceeding because of the language in the bill relative to ‘Don’t Ask, Don’t Tell,’ even though that language is very moderate language,” Levin said.

The senator noted that the provision provides that repeal would only take effect after the Pentagon working group completes its study on the issue and the president, defense secretary and chair of the Joint Chiefs of Staff certify the U.S. military is ready for repeal.

Levin added he couldn’t recall a previous time in which the U.S. Senate couldn’t proceed to debate on defense authorization legislation.

“It’s important to know that we were just simply trying to get to the point where we could debate a bill,” he said. “I don’t think a filibuster has ever before prevented the Senate from getting to a defense authorization bill.”

GOP senators ā€” including Sen. Susan Collins (R-Maine), who supported the repeal amendment to the defense authorization bill in committee ā€” accused Democratic leadership on the Senate floor Tuesday of being intransigent by limiting the number of amendments that could come to the floor.

“That is why I am so disappointed that rather than allowing full and open debate and the opportunity for amendments from both sides of the aisle, the majority leader apparently intends to shut down the debate and exclude Republicans from offering a number of amendments,” Collins said.

Sarvis said a number of factors played into the unsuccessful cloture vote on Tuesday, including the pressure that repeal advocates placed on Reid to schedule the vote regardless of whether 60 votes were present to move forward.

“Those who were advocating a vote this Congress always understood that we would need 60 votes to succeed,” Sarvis said. “So the reality is, the majority leader scheduled the vote, but we came up short. We lost Democrats that we thought would be with us up until a few days ago and we lost some Republicans until late last week that we thought would be with us.”

Sarvis said Levin and McCain may have to reach some agreement on the number of amendments that can be offered to move forward.

“It doesn’t look good for Democrats or for Republicans ā€” and especially this Congress ā€” to be the first Congress in almost 50 years not to approve an authorization for the funding of our troops, especially when we are in war,” Sarvis said.

Supporters of “Don’t Ask, Don’t Tell” repeal have also cited insufficient support from the White House as a reason why the cloture vote was defeated.

Sarvis said President Obama didn’t make an effort to encourage senators to vote for cloture in the days prior to Tuesday.

“I did not see the White House whipping the vote for 72 hours before,” Sarvis said.

Nicholson ascribed blame to Obama as well as Reid and other LGBT organizations.

“The White House didn’t lift a finger to help and certain gay rights organizations refused to criticize Senator Reid while he derailed the vote in advance,” he said. “It’s just not a good position to be in with all of the hurdles and challenges of a highly polarized lame duck session ahead.”

During a Tuesday news conference, White House Press Secretary Robert Gibbs denied Lady Gaga had done more to advance the bill than President Obama. The pop singer appeared at a rally in Maine to promote passage of “Don’t Ask, Don’t Tell” repeal legislation and tweeted with senators to encourage them to move forward.

“We wouldnā€™t be taking on these issues if it werenā€™t for the president,” Gibbs said. “This is an issue that passed the House because of the president and this administrationā€™s work and the work of many members in Congress.”

Gibbs also ascribed blame to the 60-vote threshold needed to move forward with legislation in the Senate ā€” even for a bill to authorize funds for the Pentagon ā€” and said “itā€™s certainly not healthy for the way our government works and it sets an awful precedent for getting things done in the future.”

Sarvis said support from the White House during the lame duck session would be crucial to advancing “Don’t Ask, Don’t Tell” repeal.

“We need the president speaking on this issue in the lame duck asking senators to be with him,” Sarvis said. “We know he favors repeal, but now we need him engaged more than ever.”

In the wake of Senate defeat, repeal advocates are seeking other options to move forward on “Don’t Ask, Don’t Tell.”

Litigation seeking to overturn the law has received renewed attention. Both Log Cabin v. United States and Witt v. Air Force are moving through the courts and could lead to an end to “Don’t Ask, Don’t Tell,” although legal experts expect those cases won’t be resolved for years.

In a statement following the Senate vote, Joe Solmonese, president of the Human Rights Campaign, urged the Obama administration not to appeal a recent California federal court’s decision against “Don’t Ask, Don’t Tell” in the case of Log Cabin v. United States.

“We expect the Justice Department to recognize the overwhelming evidence that proves [‘Don’t Ask, Don’t Tell’] is unconstitutional,” Solmonese said.

Even with litigation proceeding, Sarvis maintained that the legislative route is the best path for moving forward with repeal.

“The ball game is still in the Senate,” he said. “Yes, there’s some good things going on in the courts with Maj. Witt and the Log Cabin Republican case, but in all likelihood, those are going to be tied up for years.”

One question about a possible future vote on the defense authorization bill is what impact the Pentagon working group’s study on “Don’t Ask, Don’t Tell” due Dec. 1 would have on the legislation.

Sarvis dismissed the notion that the report represents a complication because he said he thinks the report would favor “Don’t Ask, Don’t Tell” repeal.

“They were asked to provide the [defense] secretary with a set of recommendations on how to implement open service,” Sarvis said. “Well, that is not going to be hurtful. Indeed, I’m not that concerned about the results of the survey.”

Nicholson said the completion of the Pentagon report should make voting for “Don’t Ask, Don’t Tell” easier for many senators, but said its release will be “thrown into the highly charged and high politicized environment of the lame duck session.”

“Unfortunately, the working group itself has become so politicized that its utility in this whole processed has been diminished because of that as well,” Nicholson said. “Bottom line ā€” the administration really screwed this one up.”

Many senators, including McCain, have said they want to see the report before acting on “Don’t Ask, Don’t Tell.”

Sarvis predicted continued equivocation from these senators upon the completion of the report and congressional hearings may be necessary following the completion of the study to address concerns.

“Sen. McCain says, ‘Oh, I’m going to need some time to study that report and analyze how they came up with those recommendations,ā€™” Sarvis said. “ā€˜We may need some hearings on that.ā€™ So that’s going to remain a moving target.”

Another possible complication in the legislative effort to repeal “Don’t Ask, Don’t Tell” later this year is state election laws.

According to Bloomberg News, state laws in Illinois, Delaware and West Virginia terminate the terms of appointed senators immediately after Election Day. Their elected successors may start in the lame duck session this year as opposed to the start of the next Congress.

These laws mean Sens. Ted Kaufman (D-Del.), Carte Goodwin (D-W.Va.) and Roland Burris (D-Ill.) ā€” who voted in favor of cloture on Tuesday ā€” may have to give up their seats to “Don’t Ask, Don’t Tell” repeal opponents in the lame duck session.

Sarvis acknowledged that a worst-case scenario of the loss of all three seats would complicate efforts to move forward with the defense authorization if the Senate faces another filibuster.

“If we’re facing another filibuster, I think it’s very, very challenging if we lose those three seats,” Sarvis said.

Sarvis said he’s spoken with Chris Coons, the Democratic nominee for U.S. Senate in Delaware, about “Don’t Ask, Don’t Tell” repeal.

“He looked me in the eye and told me that if he’s in the U.S. Senate, he will be voting for repeal,” Sarvis said. “So, I take heart from that commitment.”

Sarvis said he has “no idea” how Republican candidate Christine O’Donnell would vote should she win in the November election. O’Donnell is known for her opposition to gays and has spoken out against homosexuality.

Illustration courtesy of Georgia Voice

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.

The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.

When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.

The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows ā€œderisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”

The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that ā€œit is not clearly established that all drag shows are inherently expressive.”

Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on ā€œtext, history and tradition.”

Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.

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Federal Government

EXCLUSIVE: USAID LGBTQ coordinator visits Uganda

Jay Gilliam met with activists, community members from Feb. 19-27

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U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam (Photo courtesy of USAID)

U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.

Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.

Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.

Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.” 

“I really wanted to meet with community members and understand the impacts on them,” he said.

Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.” 

The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.

“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.

“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.

Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.

“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.

Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.

Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.Ā Ā 

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act ā€œfurther increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.ā€ The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act. 

Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.

Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act. 

Gilliam noted authorities have arrested and charged Ugandans under the law.Ā 

Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.

The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.

“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”

The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.” 

“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.” 

Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.

“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.

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Texas

Pornhub blocks Texas accessing site over age verification law

Court battle forced statute to take effect

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Washingtonporn Blade graphic

Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.

Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.Ā 

A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā 

ā€œApplying rational-basis review, the age-verification requirement is rationally related to the governmentā€™s legitimate interest in preventing minorsā€™ access to pornography,ā€ the three judge panel of the 5th Circuit explained. ā€œTherefore, the age-verification requirement does not violate the First Amendment.ā€

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtā€™s injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements. 

Texas users are greeted with this notice.

The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as ā€œineffective, haphazard, and dangerous.ā€ The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.

Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.

The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMVā€™s Wallet app, which contains a mobile driverā€™s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateā€™s digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driverā€™s licenses or other methods.

The Associated Press reported this past October that an adult entertainment groupā€™s lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.

Texas users are greeted with this notice.

Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.

ā€œAs you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.ā€

ā€œMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā€ the statement continues. ā€œAs weā€™ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā€

ā€œUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā€ the message ends with.

The company previously blocked Utah on May 7, 2023. CNN reported at the time:

Affected users are shown a message expressing opposition toĀ Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.

ā€œAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā€ the message said. ā€œWhile safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.ā€

Courthouse News reportedĀ that after Virginiaā€™s bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.Ā Ā 

ā€œWe passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,ā€Ā Lucas saidĀ on X, formerly Twitter. ā€œWe will continue our work to keep pornography out of the hands of minors ā€¦ but we will also work to ensure that this Governorā€™s error does not put the privacy of Virginians at further risk.ā€

Beyond the U.S. in the European Union, Pornhub and two more of the worldā€™s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUā€™s Digital Services Act.

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as ā€œvery large online platformsā€ subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EUā€™s executive branch.

They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.

In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.

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