Even if you believe governments should be in the business of banning things like popular communication tools, the details of the effort to kick TikTok out of the United States should give you pause. Predictably, politicians are using fears that the popular social media service is spying on behalf of the Chinese government to propose sweeping laws that threaten to affect more than one app.
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Wait, I thought it was about TikTok
“Would the RESTRICT Act – also the bill to ban TikTok – criminalize VPN use?” ReasonElizabeth Nolan Brown questioned the potential impact on virtual private networks that protect the identities and locations of internet users.
The answer is: in many cases, yes—but wait, there’s more! The RESTRICT Act, proposed by Sen. Mark Warner (D–Va.) and a list of co-sponsors including Sen. John Thune (R–SD), does not mention “TikTok,” its parent company ByteDance, or even “social media.” Instead, it gives broad powers to the government, specifically the Secretary of Commerce, “to review and prohibit certain transactions between persons in the United States and foreign adversaries” related to information and communications technology. The text of the proposed law, among other things, states:
The Secretary, in consultation with the relevant executive departments and agency heads, is authorized and takes action to identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate, including negotiating, concluding, or imposing and implementing any mitigation measures to address any risk arising out of any covered transaction of any person or with respect to any property subject to the jurisdiction of the United States as the Secretary determines—
(1) represents an unnecessary or unacceptable risk of—
He then launches into a list of supposed horrors that include “information and communications technology products,” “critical infrastructure,” “the digital economy,” “federal elections,” or “national security.” It includes a vague authorization for actions to counter “coercive or criminal activities by a foreign adversary designed to undermine democratic processes and institutions or to direct political and regulatory decisions in favor of the foreign adversary’s strategic objectives . . .”
“The RESTRICT Act has gained bipartisan momentum in the Senate, as well as the support of the Biden administration, as a viable solution to address the emerging risks that foreign ICT products and services pose to national security,” The National Law Review summarized last week. “If passed, the RESTRICT Act would give the Secretary of Commerce broad authority to take appropriate action to address identified risks and to enforce such action with severe civil and criminal penalties.”
Of course, this being the 21st century, the bill also gives the president new powers to take action on “unnecessary or unacceptable risk” posed by information and communications technology (ICT).
That’s a lot of power to deal with the alleged danger posed by TikTok. What does it all mean?
Use your imagination; civil servants who enforce the law certainly will.
No, it’s not just about TikTok
“VPNs would be covered by the RESTRICT Act led by Sens. Mark R. Warner (D-Va.) and John Thune (RS.D.) that would require the Commerce Department to assess the national security risks of foreign technology,” The Washington PostTim Starks writes.
“Warner said China’s VPNs are the type of app that cries out for systematic review like the one proposed in the bill, which would allow the Commerce Department to examine apps on national security grounds,” Starks colleague Joseph Menn reported this week.
But the legislation does not stop there. The draft law’s reference to the “digital economy” is also raising eyebrows.
“While the primary targets of this bill are companies like Tik-Tok, the bill’s language could potentially be used to block or disrupt cryptocurrency transactions and, in extreme cases, block Americans’ access to open source tools or protocols like Bitcoin,” he warns. Coin Center.
According to the bill, any technology targeted by the government would have to be linked to a “foreign adversary.” They are defined in the text as China, Cuba, Iran, North Korea, Russia and Venezuela. But the bill also allows the Commerce Secretary to designate new foreign adversaries “in consultation with the Director of National Intelligence.” This allows a huge scope to seek technology that is developed in whole or in part in countries that do not agree with attacks on cryptocurrencies, encryption or speech on the Internet. And the language could provide an even wider reach for US officials to interfere.
It’s not just about foreign apps
“No person shall cause or assist, encourage, counsel, command, incite, procure, permit or condone the doing of any act prohibited, or the omission to do any act required by any regulation, order, direction, relief, prohibition, or other authorization or the order issued on the basis of this Act,” the bill adds. This probably refers to using a US VPN to avoid restrictions on foreign services. “Maybe a court would end up finding it unusable against individuals who are just trying to avoid the TikTok ban, but that doesn’t mean prosecutors wouldn’t try,” Nolan Brown noted.
The bill carries civil penalties of up to “$250,000 or an amount that is twice the value of the transaction underlying the violation” and criminal penalties of up to 20 years in prison. However, sponsors insist that this does not apply to people using TikTok and other targeted technology.
“Under the terms of the law, someone must engage in ‘sabotage or subversion’ of US communications technology, causing ‘catastrophic effects’ on US critical infrastructure, or ‘interfering with or altering the results’ of US federal elections. warrant for application of criminal sanctions,” insists Rachel Cohen, director of communications for Warner.
Maybe, but these terms are open to definition. Chances are, ambitious prosecutors will, as always, test the limits of the law and some unfortunate souls will be forced to run with federal challenges.
If the feds don’t like TikTok, they shouldn’t be using it
“In the United States, we are plagued by increasing demands for restrictions on TikTok, the technology that many people have chosen to share information with others around the world,” notes the Electronic Frontier Foundation. “Before taking such a drastic step, the government must present concrete evidence that shows, at the very least, a real problem and a narrowly tailored solution.”
“Narrowly tailored” would be to delete TikTok from sensitive government devices and otherwise leave people to make their own decisions. The RESTRICT law is not narrowly tailored at all. In fact, it is so broad that it is hard to see where its authoritarian powers end. Open-ended bills designed to exploit popular panic create terrible laws.