Even if you feel that governments should not be in the business of outlawing popular communication technologies, the specifics of the government’s agenda to remove TikTok from the United States should cause you to worry. Politicians, predictably, are leveraging suspicions that the popular social media platform is spying for the Chinese government to propose sweeping legislation that threatens to harm far more than just one app.
The bill to ban the popular app known as TikTok is called the RESTRICT Act. One of the primary questions you should consider is if the RESTRICT Act will outlaw the usage of VPNs.
In many circumstances, the answer is yes, but there’s more! The RESTRICT Act makes no mention of “TikTok,” its parent company “ByteDance,” or even “social media.” Instead, it gives the government, notably the Secretary of Commerce, information and communications technology (ICT) transactions between U.S. persons and foreign adversaries. Those transactions can be reviewed and prohibited under this authority. The problem is the wording of the bill, which states, in part:
Upon identifying, deterring, disrupting, preventing, prohibiting, investigating, or otherwise mitigating any risk resulting from any covered transaction by any individual or concerning any property subject to United States jurisdiction that the Secretary has identified, the Secretary is authorized to take action in consultation with the relevant executive department and agency heads.
There is then a litany of alleged atrocities involving information technology products, critical infrastructure, the digital economy, the Federal election, or national security, as well as a vague authorization for action to counter coercive or criminal activities of foreign adversaries aimed at undermining democratic processes and institutions or steering policy and regulatory decisions in favor of their strategic objectives.
The National Law Review noted last week that the RESTRICT Act had gained bipartisan support in the Senate and support from the Biden administration as a realistic way to address the emerging risk presented by foreign ICT goods and services to national security. If approved, the RESTRICT Act would provide the Secretary of Commerce extensive authority to take necessary actions to address recognized risks and enforce such measures with severe civil and criminal penalties.
Of course, because this is the twenty-first century, the measure gives the president unprecedented authority to respond to “undue or intolerable risk” posed by information and communications technology (ICT).
That’s a significant delegation of authority to confront the alleged threat posed by TikTok. What exactly does it all mean? Utilize your imagination; government employees enforcing the law will undoubtedly do so. No, it’s not only TikTok.
The RESTRICT Act, spearheaded by Senators Mark R. Warner (D-Va.) and John Thune (R-S.D.), would force the Commerce Department to review the national security dangers of foreign technology, says Tim Starks of The Washington Post.
Warner said Chinese VPNs are the type of applications that demand a comprehensive assessment like the one proposed in the bill, which would empower the Commerce Department to evaluate apps on national security grounds, Starks’ colleague Joseph Menn wrote this week.
Yet, the legislation does not end there, and the bill’s mention of the “digital economy” also presents questions.
The legislation’s primary target is corporations such as Tik-Tok, the bill’s wording may theoretically be used to prevent or disrupt cryptocurrency transactions and, in extreme situations, block Americans’ access to open-source tools or protocols such as Bitcoin, says Coin Center.
The law requires that any technology targeted by the government be linked to a “foreign enemy,” described in the text as China, Cuba, Iran, North Korea, Russia, and Venezuela. The bill also allows consultation with the Director of National Intelligence. The Secretary of Commerce may also designate new foreign adversaries, giving the government a lot of leeways to go after technology developed in countries that don’t cooperate with crackdowns on cryptocurrencies, encryption, or online speech. Furthermore, the phrasing may give U.S. officials even more leeway to interfere.
It’s not only about foreign applications. No one may cause, aid, abet, counsel, command, induce, procure, permit, or approve any act prohibited by, or omitted from, any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under this Act. Under this utilizing an American VPN to circumvent overseas service restrictions would be illegal, or using a foreign VPN to get a banned app would also be illegal. A judge may eventually rule it worthless against someone attempting to circumvent a TikTok ban, but that doesn’t mean prosecutors wouldn’t try, Nolan Brown said.
The measure allows for civil fines of up to “$250,000” or double the value of the transaction that is the foundation of the offense, as well as criminal penalties of up to 20 years in jail. However, the sponsors say this does not apply to consumers using TikTok and other targeted technology.
For criminal penalties to apply, someone must be engaged in sabotage or subversion’ of communications technology in the United States, causing ‘catastrophic effects’ on U.S. critical infrastructure, or ‘interfering in, or altering the result’ of a federal election, Rachel Cohen, Warner’s communications director, insists.
Maybe, but such concepts are subject to interpretation. As usual, aggressive prosecutors will push the bounds of the law, and some unlucky individuals will be forced to run the federal gauntlet.
If the feds dislike TikTok, they should avoid using it. They are worried by mounting calls in the United States for limitations on TikTok, a tool that many individuals have chosen to transmit information with others all around the world, the Electronic Frontier Foundation said. Before taking such a severe move, the government must present precise evidence demonstrating, at a minimum, a real issue and a narrowly focused solution.
“Narrowly customized” would mean removing TikTok from critical government equipment and allowing individuals to make their own decisions.
The RESTRICT Act is not at all narrowly focused, and furthermore, it is so wide that it is impossible to determine where its dictatorial powers end. Open-ended proposals designed to capitalize on public fears make for bad law. Lawmakers need to shoot down this bill.