The RESTRICT Act is better known as the “TikTok ban.” It is a bill where politicians are using national security rhetoric to enact sweeping legislation. The RESTRICT Act was introduced by Senators Mark Warner (D) and John Thune (R) in March 2023. RESTRICT stands for Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act of 2023. The TikTok ban would give the President the ability to criminalize entire communications platforms, they oppose. The act will allow the executive branch to control what apps and technologies Americans have access to without a way to challenge those actions in court.
The bill authorizes the President through the Secretary of Commerce to prohibit transactions involving information and communications technology (ICT) products and services in which any foreign adversary has any interest. The bill requires the Commerce Department to maintain a list of foreign entities that pose a risk to the U.S. ICT supply chain. The bill classifies China (including Hong Kong and Macau), Cuba, Iran, Russia, and Venezuela as foreign adversaries.
The RESTRICT Act
Under the RESTRICT Act, the President could criminalize the entire communications platform he or she opposes. The Commerce Department will have broad powers. The bill authorizes them to, “deter, disrupt, prevent, investigate, and mitigate transactions” involving social media they do not like. It is not unreasonable to anticipate that the next Republican President would use the act. They could shut down any platform that contains information on Reproductive Rights, Black Lives Matter, Supreme Court ethics, Criminal trials, Disney, or the outrage du jour.
The “TikTok ban” is bad for America for a number of reasons. There are technical and Constitutional problems with the bill. The biggest technical threat is banning VPNs. Banning VPNs has long been a goal of the FBI as part of their “going dark” fear-mongering.
VPN’s
A Virtual Private Network (VPN) is a service that encrypts and routes your internet traffic through a server in another location. A VPN encrypts your communications to protect your data. VPNs make it appear as if you are accessing the web from the VPN server’s location. This legislation could outlaw the use of VPNs. The bill would give the Department of Commerce broad power to impose “mitigation measures” on technology products. The bill could criminalize the use of VPNs, or even ban VPNs altogether. The bill’s vague language leaves room for interpretation and uncertainty.
First Amendment
Experts agree the legislation would violate our First Amendment rights of the Constitution without actually protecting American consumers. The TikTok ban is a violation of the First Amendment because it infringes on the right of millions of Americans to express themselves and access information on a popular social media platform. The ban is also overbroad and disproportionate, as it would effectively censor all social media content, regardless of its source or nature. The ban would set a dangerous precedent for government interference with free speech online and would undermine the values of democracy and openness that the First Amendment is meant to protect.
Fourth Amendment
The TikTok ban is a violation of the Fourth Amendment of the Constitution. The 4th Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The RESTRICT Act allows the government to access and delete the personal data of millions of social media users without their consent, probable cause, or a warrant. This would infringe on their privacy and freedom of expression. The ban would also harm the creators and businesses that rely on social media as a source of income and exposure. The ban is not justified by any compelling national security interest, but rather by political motives and unfounded allegations.
RESTRICT Act Punishes Americans
Americans who violate The RESTRICT Act could end up with civil and criminal penalties. The bill would impose civil and criminal penalties for violations of any order or mitigation measure issued. The civil penalties include fines up to $250,000 or twice the value of the transaction that served as the basis of the order, whichever is greater. The criminal penalties of up to $1 million and up to 20 years imprisonment.
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There are legitimate data privacy concerns about all social media platforms, including but not limited to TikTok. The EFF points out that all social media firms harvest and monetize our personal data and incentivize other online businesses to do the same. Nearly all social media platforms and other online businesses collect a lot of personal data from their users. The result is that detailed information about us is widely available to purchasers, thieves, and government subpoenas.
Consider location data brokers, for example. Our phone apps collect detailed records of our physical movements, without our knowledge or genuine consent. The app developers sell it to data brokers, who in turn sell it to anyone who will pay for it. An election denier bought it to try to prove voting fraud. One broker sold data on who had visited reproductive health facilities.
If China wanted to buy this data, it could probably find a way to do so. Banning TikTok from operating in the U.S. probably would not stop China from acquiring the location data of people here. The better approach is to limit how all businesses in the U.S. collect personal data. This would reduce the supply of data that any adversary might obtain.
President Biden has already said he would sign off on the RESTRICT Act if it lands on his desk,
Everybody should be allowed to make informed choices based on their own values and preferences.
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Ralph Bach has been in IT long enough to know better and has blogged from his Bach Seat about IT, careers, and anything else that catches his attention since 2005. You can follow him on LinkedIn, Facebook, and Twitter. Email the Bach Seat here.
