Opinion: US’ Restrict Act to ban TikTok is more dangerous and overreaching than the Patriot Act 

There has been a lot of discussion in the US Congress about banning TikTok, the popular social network owned by Chinese company ByteDance. The plan that US lawmakers have come up with, is to pass a legislation that would allow the US president and the Department of Commerce to ban TikTok. 

The proposed legislation has been named the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act, also known as the RESTRICT Act.

However, lawmakers in the US need to consider that if they do go ahead with a ban on TikTok, using the Restrict Act as it stands today, it could potentially result in the US restricting access to many other apps and tech products. Moreover, the Restrict Act has the potential to be abused to prosecute individual users as well.

The Restrict Act: The Patriot Act for the digital age.
The Restrict Act, as it stands today, is far more overreaching and dangerous than the USA PATRIOT Act, or simply, the Patriot Act. 

The Patriot was introduced in the aftermath of the September 11 terrorist attacks, with the aim of enhancing national security and preventing future attacks. It granted unprecedented surveillance powers to law enforcement agencies, including the ability to monitor electronic communications without a warrant, conduct secret searches, and collect personal information on individuals without their knowledge. 

However, the Act has been criticized for its impact on civil liberties and privacy rights, with many arguing that it has been used to target and intimidate marginalized communities, and has eroded trust between citizens and government. Additionally, the Act has been associated with a number of high-profile abuses, including the warrantless wiretapping of US citizens, leading to concerns about the potential for government overreach and abuse of power.

The bipartisan Senate bill, of the Restrict Act, is eerily similar to the Patriot Act, especially when it comes to the vagueness of the language that has been drafted in.

This proposed law has been endorsed by the White House and could give the secretary of Commerce and the President wide-ranging powers to ban not only mobile or desktop applications but also other types of technology products from countries considered to be national security threats. 

Tech under attack
The Restrict Act has sparked controversy among digital rights activists, who have raised concerns about the bill’s ambiguity regarding the specific products that would be banned and the broad powers it would grant the executive branch, while ignoring any scope of accountability.

One of the biggest concerns that digital rights activists have is that the Restrict Act could be used to criminalise the use of virtual private networks (VPNs) and that US citizens’ online activities could be subject to increased surveillance.

In a breakdown of the proposed law, the EFF criticized the Restrict Act as sweeping legislation that would allow Congress to relinquish much of its responsibility for holding the executive branch accountable. The EFF argues that the bill’s purposefully confusing language is another example of its failure.

While the Biden administration plans to use the legislation to ban TikTok for now, future presidents and administrations may not be as cautious and may use the Restrict Act far more aggressively and ban other tech products and platforms under the garb of national security.

Imagine Donald Trump, or Joe Biden for that matter, banning Twitter, Instagram, or WhatsApp, because these platforms are used for political speech that does not align with their administrations, without any official proceedings, or committee hearing. That is the kind of power the Restrict Act gives the US President, and the US Department of Commerce.

Targeting individual users
The EFF has also warned that the bill could result in individual Americans being punished for using a VPN or other technologies to access any website or application, outside the US. 

The Department of Commerce would have the authority to impose “mitigation measures” without any clear limitations on what those measures might entail. Additionally, the vague enforcement provision could be interpreted broadly to punish anyone who “evades” these undefined “mitigation measures,” potentially criminalizing practices such as using a VPN to access and installing apps from unofficial sources, or using an app that was lawfully downloaded from another country. In short, the bill’s language is too broad, which could have serious consequences for Americans’ digital rights and privacy.

Even if the bill’s sponsors do not intend it, giving the Commerce Department broad authority to impose crushing criminal penalties on any person trying to evade a ‘mitigation measure’ is dangerous. 

For example, in the case of a mitigation measure that bars the importation of TikTok into the US, it authorizes penalties, including 25 years of prison time, for any person who brings TikTok into the US, whether by use of a VPN or downloading it while in another country.

Generally speaking, the bill would “give more power to the executive branch and remove many of the commonsense restrictions that exist under the Foreign Intelligence Services Act (FISA)”, the EFF said.

“Similar to the Data Security Law of the People’s Republic of China”
According to the EFF, the Commerce Secretary could demand information from “any party to a transaction or holding under review or investigation,” including user data from companies designated under the bill.

This is very similar to the Data Security Law of the People’s Republic of China, a law that requires all tech companies in China to hand over whatever data they have, if and when the Chinese government asks for it.

Although there are confidentiality requirements in place in the Restrict Act, the EFF claims that the data could still be shared with other government entities under certain circumstances. Furthermore, the bill authorizes the Commerce Secretary to review and prohibit certain transactions between individuals in the US and foreign adversaries, which currently includes China, Cuba, Iran, North Korea, Russia, and Venezuela. 

The Commerce Secretary would also be permitted to take measures to identify, deter, disrupt, prevent, prohibit, investigate, or mitigate risks from foreign companies.

Unaccountability weaved into the Restrict Act
The Restrict Act allows the government to ban companies from operating in the US without the public ever knowing the basis for the ban. The bill allows Congress to override a decision to ban or unban a company, but the EFF argues that Congress would have no other role in the process. In addition, the executive branch would not be required to explain its application of the law publicly.

The EFF believes that the bill authorizes the executive branch to make decisions about which technologies can enter the US with very little oversight from the public or its representatives. 

The Restrict Act would open the door to wide-ranging government bans on hardware or software from foreign countries with limited transparency, oversight, and challenges via litigation.

The Restrict Act outlines a list of technologies that will be prioritized for evaluation by the Secretary of Commerce, with the aim of mitigating risks associated with foreign adversaries. These technologies include internet hosting services, cloud computing services, content delivery services, hardware and software used in telecom networks, network-enabled devices like webcams, modems, and sensors, unmanned vehicles like drones, and products integral to various fields like artificial intelligence, machine learning, quantum computing, post-quantum cryptography, autonomous systems, advanced robotics, and biotechnology.

The bill also identifies software used primarily for connecting with and communicating via the internet, which is in use by more than 1,000,000 people in the US at any point during the previous year. 

This broad category could include desktop applications, mobile applications, gaming applications, payment applications, and web-based applications, meaning it potentially includes any application that could be installed on a personal computing device or accessed over the internet. 

The bill raises concerns because the Commerce Department and the President could use their new authority to ban companies without needing to publicly justify their decision, and with little oversight from Congress or the public. This means that the bill could limit transparency and the ability of individuals to challenge decisions that affect them.

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