What is the RESTRICT Act (And Why Should We Care)?
This conversation is necessary, as digital privacy in a world awash in smartphones, smartTVs, Google, Apple, and the internet were never things the creators of our Fourth Amendment imagined.
Censorship is a dicey subject.
While limiting sensitive information pertaining to national security is expected, we always have to consider who is behind that limiting and to what extent it may potentially run afoul of our constitutional right to reasonable privacy.
For example, the Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act passed in October 2001 after the terrorist attack on the World Trade Center a month before handed the federal government sweeping authority to wire-tap, bulk collect meta data, and surveil bank records.
Its potential for intrusion on people’s privacy was so controversial, Barack Obama signed the “USA Freedom Act” in 2015 to rein in bulk data collection.
A US court of appeals that year ruled bulk collection of telephone meta data unconstitutional after former National Security Agency employee Edward Snowden in 2013 sounded the alarm on the practice before fleeing for asylum in Russia.
Republicans and Democrats alike have deemed censorship a slippery slope.
Indeed, how much privacy specifically and how many of our freedoms in general can we be expected to compromise in the name of “safety and security” before they’re totally eroded?
It’s not an easy question to answer.
Today we find ourselves asking that question again.
The bipartisan Restrict Act (S.686), what some are calling the “TikTok ban” bill and others the “PATRIOT Act 2.0,” is causing a “contentious rift within both parties,” as Truthout reported.
Introduced by Democratic Va. Sen. Mark Warner, the bill with 13 republican, 11 Democrat, and one Independent co-sponsor, seeks to “authorize the Secretary of Commerce to review and prohibit certain transactions between persons in the United States and foreign adversaries, and for other purposes.”
While not stating the White House supports banning TikTok in the United States, Sen. Warner stated the Biden administration is “very in favor” of ban technologies associated with foreign governments.
Warner explained, “We [would] give the secretary of commerce the tools to ban, to force a sale [of TikTok to another company].”
TikTok has been banned on U.S. government devices since 2022, and several state legislatures have followed for state-issued devices and networks.
The controversy is over the Chinese company ByteDance that owns TikTok adhering to Chinese law requiring user data be handed over to the Chinese government. This means TikTok users, many of whom are American teenagers, are relinquishing personal information to a foreign nation with a relationship that can be described at best precarious.
TikTok’s chief executive officer, Shou Zi Chew, in a five-hour congressional hearing, insisted “ByteDance is not an agent of China or any other country.”
Warner wasn’t buying it.
“While I appreciated Mr Chew’s testimony, he just couldn’t answer the basic questions,” the Va. Sen. said. “At the end of the day, TikTok is owned by a Chinese company…and by Chinese law, that company has to be willing to turn over data.”
Days after Chew testified, though, congressional support for the bill appeared to falter.
Republicans feel it goes too easily on TikTok and are confident it will pass.
One of its sponsors, republican Sen. John Thune explained:
If we can get a markup in the Senate Commerce Committee, I think we can probably get it across the floor in the Senate.
But Senate Commerce Chair Maria Cantwell (D-Wash.), initially friendly to the bill, appears to be having second thoughts. She stated:
I said it’s a start, saying that the Commerce secretary might play a larger role…My primary concern is we need a data privacy bill.
The implications are crucial.
While Cantwell may be correct in our needing a privacy bill, is banning TikTok really going to be effective?
When have outright bans of anything ever worked to people’s advantage?
There is, of course, the question “What next?”
Ban TikTok, is Twitter next now that it Elon Musk has turned it into a right-wing conspriacy sewer?
Facebook?
How about some of the other social media programs gaining ground since Musk took over Twitter, like predominantly progressive-leaning Tribel, Mastadon, and Post?
If the Biden White House deems TikTok worthy of prohibition, what is a republican president with republican members of Congress going to prohibit?
The specific concern involves the RESTRICT Act’s language.
It allows the federal government the authority to prohibit or restrict “information and communications technology products and services holdings that pose undue or unacceptable risk," at the recommendation of the Secretary of Homeland Security, the Secretary of Defense, or the Director of National Intelligence.
Virtual private networks (VPN), popular with those who do not feel comfortable with their internet services providers knowing every website they visit and selling their data to third parties, could be punished with a fine of up to $1 million or up to 20 years in prison, as language in the bill states:
No person may engage in any transaction or take any other action with intent to evade the provisions of this Act.
While no language specifically bans VPN, some warn it could interpreted that way.
Kayla Williams, chief information security officer at cloud-native security analytics platform Devo, said:
There’s not any clarification of what the implications could be to an individual versus a corporation. It’s very concerning to me as a citizen, that I have VPN on my phone, to protect myself. Does that mean that I could potentially face jail for having that technology? It’s too broad, in my opinion.
While the bill stipulates the technology user must be engaged in activities intending to harm the U.S. government, again, it all comes down to who is defining the terms.
Could a Fla. Gov. Ron Desantis put his thumb on a scale to go after Black Lives Matter activists, those seeking abortions, or reading certain books he has banned because their actions could be “harming the government”?
Could a Georgia Gov. Brian Kemp use the law to lock up activists protesting his purging of thousands of mostly Black, brown, and Hispanic voters because their actions could be “harming the government”?
Could a President Trump Wannabe pervert it to lock up his political enemies?
Don’t discount it.
Senior fellow with the Center for Technology Innovation at the Brookings Institution, Darrell West, warned:
There’s a risk of unintended targets. There could be consequences for businesses or individuals that inadvertently get swept up in this.
Something else to consider: our friend today could be our enemy tomorrow.
That has happened many times throughout history.
We used to be friends with Iraqi dictator Saddam Hussein until we weren’t. We used to be on better terms with China. Now we’re not.
Sen. Warner tweeted a lengthy Twitter thread (oh, the irony) addressing some paramount concerns:
https://twitter.com/MarkWarner/status/1641811944322527233
https://twitter.com/MarkWarner/status/1641811947560509441
https://twitter.com/MarkWarner/status/1641811952396562433
https://twitter.com/MarkWarner/status/1641811960005107713
https://twitter.com/MarkWarner/status/1641811969597489152
Natrually, there are speculations circulating around the internet about the RESTRICT Act’s potential to tap into domestic smart devices like Google Nest, Amazon Alexa and Echo, and the Ring doorbell.
Verify fact-checked the most common claims.
Citing the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation, Verify deemed that fear false.
This conversation is necessary, as digital privacy in a world awash in smartphones, smartTVs, Google, Apple, and the internet were never things the creators of our sacrosanct Fourth Amendment imagined.