Even if you believe that governments should be in the business of banning things such as popular communications tools, the details of the effort to eject TikTok from 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 broad legislation that threatens to affect much more than one app.
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Wait, I Thought This Was About TikTok
"Would the RESTRICT Act—a.k.a. the TikTok ban bill—criminalize the use of VPNs?" Reason's Elizabeth Nolan Brown asked of the potential impact on virtual private networks that shield internet users' identities and locations.
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–S.D.), doesn't mention "TikTok," or parent company "ByteDance," or even "social media." Instead, it hands a whole lot of power to the government, particularly the Secretary of Commerce, "to review and prohibit certain transactions between persons in the United States and foreign adversaries" regarding information and communications technology. The bill's text states, in part:
The Secretary, in consultation with the relevant executive department and agency heads, is authorized to and 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, 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—
It then launches into a list of presumed horribles involving "information and communications technology products," "critical infrastructure," "digital economy," "a Federal election," or "national security." It includes a vague authorization of action to counter "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…"
"The RESTRICT Act has been garnering bipartisan momentum in the Senate, as well as backing from the Biden administration, as a workable solution to address the emergent risk posed by foreign ICT products and services to national security," The National Law Review summarized last week. "If passed, the RESTRICT Act would provide the secretary of commerce broad authority to take appropriate measures to deal with identified risks, and to enforce such measures with hefty civil and criminal penalties."
Of course, this being the 21st century, the bill also grants the president new power to take actions regarding "undue or unacceptable risk" posed by information and communications technology (ICT).
That's a huge grant of authority to address the supposed peril posed by TikTok. What does it all mean?
Use your imagination; government officials implementing the law certainly will.
No, It's Not Just About TikTok
"VPNs would be covered in the RESTRICT Act led by Sens. Mark R. Warner (D-Va.) and John Thune (R-S.D.) that would require the Commerce Department to evaluate the national security risks of foreign technology," The Washington Post's Tim Starks writes.
"Warner said Chinese VPNs were the sort of apps that cry out for a systemic review like that proposed in the bill, which would allow the Commerce Department to examine apps on national security grounds," Starks's colleague Joseph Menn reported this week.
But the legislation doesn't stop there. The bill's reference to "digital economy" also raises eyebrows.
"Although the primary targets of this legislation are companies like Tik-Tok, the language of the bill 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," warns Coin Center.
Under the bill, any technology targeted by the government should be connected to a "foreign adversary." Those are defined in the text as China, Cuba, Iran, North Korea, Russia, and Venezuela. But the bill also allows the Secretary of Commerce to designate new foreign adversaries "in consultation with the Director of National Intelligence." That allows an enormous amount of room to go after technology developed in whole or part in countries that don't play along with crackdowns on cryptocurrencies, encryption, or online speech. And the language may allow even broader reach for meddling by U.S. officials.
It's Not Just About Foreign Apps, Either
"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," adds the bill. Arguably, that applies to using an American VPN to evade restrictions on foreign services. "Perhaps a court would ultimately deem it unusable against individuals merely trying to evade a TikTok ban, but that doesn't mean prosecutors wouldn't try," observed Brown.
The bill provides for civil penalties of up to "$250,000 or an amount that is twice the value of the transaction that is the basis of the violation" and criminal penalties of up to 20 years in prison. That said, the sponsors insist that doesn't apply to people using TikTok and other targeted technology.
"Under the terms of the bill, someone must be engaged in 'sabotage or subversion' of communications technology in the U.S., causing 'catastrophic effects' on U.S. critical infrastructure, or 'interfering in, or altering the result' of a federal election in order for criminal penalties to apply," Rachel Cohen, Warner's communications director, insists.
Maybe, but those terms are open to definition. Chances are that ambitious prosecutors will, as always, test the boundaries of the law and some unfortunate souls will be forced to run the federal gauntlet.
If the Feds Don't Like TikTok, They Shouldn't Use It
"We are troubled by growing demands in the United States for restrictions on TikTok, a technology that many people have chosen to exchange information with others around the world," notes the Electronic Frontier Foundation. "Before taking such a drastic step, the government must come forward with specific evidence showing, at the very least, a real problem and a narrowly tailored solution."
"Narrowly tailored" would be deleting TikTok from sensitive government devices and otherwise leaving people alone to make their own choices. The RESTRICT Act isn't narrowly tailored at all. In fact, it's so broad it's difficult to see where its authoritarian powers end. Open-ended bills crafted to exploit popular panics make for terrible legislation.