You know it’s bad when Rand Paul has emerged as seemingly the only vocal supporter of the First Amendment in Congress, at least when the topic is Tik-Tok. But a bipartisan bill, the RESTRICT Act, intended to shut down Tik-Tok and other designated agents of unfriendly furriners scheming to pollute American’s precious bodily fluids, is such a censorship power grab that a large number of right-wing figures (and sadly only a few from the left) are screaming bloody murder about it. And their fury is well warranted. The bill, which has also been dubbed “Patriot Act 2.0” is a horror show.
The good news is that for once, vocal opposition is having an effect and the effort to push the legislation through is going pear-shaped. However, like the TARP, which elicited a firestorm of criticism, the RESTRICT Act may come back in a marginally less offensive rework. However, some other anti-Tik-Tok bills have also been put forward, so perhaps one of them will become the new China foiler.
However, the RESTRICT Act (which you can read here) is still in play, so let’s look at some of the major elements of its awfulness. It does not mention Tik-Tok. The bill instead targets “any foreign government or regime, determined…to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States.” The starter list consists of China, Cuba, Iran, North Korea, Russia, and Venezuela “under the regime of Nicolás Maduro Moros.” So we still haven’t given up on Guaidó.
So many US officials and adjacent mouthpieces have taken to saying crazypants things about China that it’s hard to parse posturing from policy. Nevertheless, even though the US has become openly hostile towards China, witness the CHIPS Act and continued Taiwan eye-poking, I wonder if any other bill or Executive Order has deemed China to be a national security threat to the US.
Forgive the reliance on conservative sources, but they’ve been the ones to give the Restrict Act a hard look. First from Fox:
Activists and organizations are sounding the alarm that the RESTRICT Act, touted to stop foreign spying via apps like TikTok, will instead endanger basic American freedoms.
A bipartisan group of senators led by Sen. Mark Warner, D-Va., and John Thune, R-S.D., unveiled the RESTRICT Act on March 7. The legislation is meant to crack down on communications technology developed by foreign adversaries, like China and Russia, because of national security risks.
The RESTRICT Act gives the executive branch the power to “[enforce] any mitigation measure to address any risk” regarding a “current, past, or potential future transaction” with what is deemed to be a foreign adversary. It would also apply to taking action “to address any risk arising from any covered transaction by any person, or with respect to any property, subject to the jurisdiction of the United States,” including “interfering in, or altering the result or reported result of a Federal election.” The penalty for running afoul of this law could be up to “20 years” spent in prison.
Oh, and let’s not forget that the RESTRICT Act provides for civil and criminal asset forfeiture, which means the police can take your money and property based on a mere accusation, before guilt or innocence has been determined.
The bill has sloppy definitions and is unnecessarily convoluted, which speaks either to poor drafting or an intent to obfuscate. Based on a cursory look, for any entity to be targeted, it has to have over 1 million active US users in the past.
But the text of the bill proper targets “any person”:
…shall take action to identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate, including by negotiating, entering into, or imposing, and enforcing any mitigation measure to address any risk arising from any covered transaction by any person….
A transaction appears to be just about any activity.
Notice how this section continues:
…or with respect to any property, subject to the jurisdiction of the United States that the Secretary determines—
(1) poses an undue or unacceptable risk of—
(A) sabotage or subversion of the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of information and communications technology products and services in the United States;
(B) catastrophic effects on the security or resilience of the critical infrastructure or digital economy of the United States;
(C) interfering in, or altering the result or reported result of a Federal election, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission; or
(D) coercive or criminal activities by a foreign adversary that are designed to undermine democratic processes and institutions or steer policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission; or
Did you notice (C) and (D)? (C) would include the 1/6 riot, which means similar protestors could be handled outside the judiciary. And (D) looks designed to support Russiagate 2.0 and again skip established processes like impeachment. Of course, one could argue that the Russiagate hoax fell under (C) and its purveyors were guilty of election interference (recall that Hillary allies were arguing for a change in the Constitutional order, of requiring that the military approve of any incoming President). Oddly I didn’t see any conservative sources make noise about this issue, perhaps because they found plenty of other provisions that would offend broad swathes of voters.
So what happens if you are designated a national security threat? What can they access of yours to confirm it? Everything.
Notice the preemptive attack on quantum encryption in there, too. pic.twitter.com/rXMY8v8lOI
— Mises Caucus (@LPMisesCaucus) March 26, 2023
If you recall from before, “Foreign Individuals” can now also be US citizens that are deemed a national security threat. Once designated, the bill grants authority to enforce any action deemed necessary to mitigate the threat, with no due process and few limits on punishments. pic.twitter.com/8IreN90m88
— Mises Caucus (@LPMisesCaucus) March 26, 2023
Note the Mises Caucus parsing is not correct even though the conclusion is. It isn’t “Foreign individuals” that allows US citizens to be targeted but the “any person” language cited above.
On top of that, the scope of authority is close to unlimited with no checks or transparency. Awfully obvious potential for abuse:
Believe it or not, it gets even worse: If you find you in violation, they can put you in jail for 20 years, fine you $1M, and seize your property.
They can also deem any foreign government an adversary without informing congress and everything they do is not subjected to FOIA. pic.twitter.com/3F3VTJrl5x
— Greg Price (@greg_price11) March 28, 2023
Reason argues that the RESTRICT Act could criminalize VPNs:
Would the RESTRICT Act—a.k.a. the TikTok ban bill—criminalize the use of VPNs? That’s the rumor floating around about the legislation, which was introduced in the Senate by Sen. Mark Warner (D–Va.) earlier this month…
The language describing who the RESTRICT ACT applies to is confusing at best. The commerce secretary would be authorized to take steps to address risks posed by “any covered transaction by any person,” right? So what counts as a covered transaction? The bill states that this means “a transaction in which an entity described in subparagraph (B) has any interest.” Entities described in subparagraph B are a “foreign adversary; an entity subject to the jurisdiction of, or organized under the laws of, a foreign adversary; and an entity owned, directed, or controlled by” either of these. Foreign adversaries can be “any foreign government or regime” that the secretary deems a national security threat.
It’s a bit gobbledygooked, but this could be read to imply that “any person” using a VPN to access an app controlled by a “foreign adversary” or its alleged minions is subject to the secretary’s ire. Hence anyone using a VPN to access TikTok would be in trouble—specifically, subject to up to $1 million in fines, 20 years in prison, or both.
Warner’s office insists that ain’t so, but perhaps he could clean up the text, since as Reason continues:
It’s somewhat reassuring that at least Warner doesn’t intend the bill’s criminal provisions to apply to U.S. citizens using VPNs….because the language of the bill is so expansive, it seems hard to rule out it ever being used in this way.
We’ve seen many times the way federal laws are sold as attacks on big baddies like terrorists and drug kingpins yet wind up used to attack people engaged in much more minor activities.
Besides, the RESTRICT Act doesn’t just state that “no person may engage in any conduct prohibited by or contrary to” its provisions. It also says “no person may cause or aid, abet, counsel, command, induce, procure, permit, or approve the doing of any act prohibited by, or the omission of any act required by any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under, this Act,” (emphasis mine). In addition, “no person may solicit or attempt a violation” and “no person may engage in any transaction or take any other action with intent to evade the provisions of this Act.”
That language leaves even more room for the RESTRICT Act to touch a wide range of activities….
And even if the law would never be used to attack citizens for merely using VPNs, it’s a deeply worrying piece of legislation that would give the government broad authority to restrict or ban all sorts of businesses and communications tools, so long as they’re tangentially related to any country it decides is an adversary.
Even the generally toothless ACLU is making unhappy noises. Again from Fox:
American Civil Liberties Union senior counsel Jenna Leventoff offered her take on the bill as well.
“The RESTRICT Act grants the Secretary of Commerce extremely broad new powers, with little oversight,” the ACLU representative told Fox News Digital. “The bill’s language is extremely broad and vague, and an expansive read could easily encompass measures that would have devastating consequences for a wide range of technologies and apps that people regularly use today to communicate and express themselves.”
Leventoff also warned in a press release that action could be taken “to ban entire communications platforms, which would have profound implications for our constitutional right to free speech.”
And we have this confection, the odious Lindsey Graham, one of the bill’s sponsor denying he’s a supporter, and not even knowing what’s in it:
Even AOC, who has not been stepping too far from orthodoxy, cleared her throat to point out that the Administration has never taken the steps to treat Tik-Tok as a security threat, but suddenly expect Congress to accept it as such with no evidence, apparently “because Chinese” will do these days. From the New York Times:
Ms. Ocasio-Cortez appears to share some of Mr. [Jamal] Bowman’s concerns about a potentially drastic move absent any evidence of security risks. She says that members of Congress have not been briefed on any national security threat.
“Why would we be proposing a ban regarding such a significant issue without being clued in on this at all?” she asks in the video [her first on Tik-Tok]. “It just doesn’t feel right to me.”
The congresswoman also argues that rather than singling out one platform, Congress should create tougher, European-style policies to regulate how social media companies collect and manage data from their users.
Politico describes how enthusiasm for the RESTRICT Act is waning. Perhaps the most encouraging sign is no parallel bill has been introduced in the House. In addition, Senate Commerce Chair Maria Cantwell, despite Biden Administration backing for the measure, has not yet said she supports it, and is calling instead for a data privacy legislation.
So while this measure may be on its way to a well-deserved death, it would be prudent to call or e-mail your Senators and tell them how terrible this measure is and you trust they won’t support it (or if they are a sponsor, that they need to change their mind). And stay tuned.