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- The RESTRICT Act, a bill that could ban TikTok nationwide, was introduced in the Senate last month.
- TikTok bans have bipartisan support but critics call the bill an "invasion of our free speech rights."
- GOP Senator JD Vance of Ohio called the bill proposal "a PATRIOT Act for the digital age."
Banning TikTok has become one of the only bipartisan issues lawmakers seem to see eye to eye on.
From a Montana ban on the social media app passed this month that will impact nearly all personal devices within state lines to a unanimous Senate approval to ban it from all government devices, both Democratic and Republican lawmakers agree that the short-form video app — and its parent company, the Beijing-based ByteDance — has got to go.
Citing national security concerns over reports that the Chinese government could use the app to surveil American citizens or promote propaganda to its largely teenage user base, former President Trump and the current Biden administration have both supported legislation to ban TikTok.
Among the most sweeping proposals is a bill currently making its way through Congress. But the RESTRICT Act — touted as a way ban TikTok nationwide — would do far more than prevent users from accessing an app known for its viral dance routines and conspiracy theory videos.
Representatives for TikTok and ByteDance, its parent company, did not immediately respond to Insider's requests for comment.
The RESTRICT Act explained
The "Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act," or Senate Bill 686, was sponsored by the Chairman of the Senate Select Committee on Intelligence, Democratic Senator Mark Warner of Indiana, alongside Republicans John Thune of South Dakota in a bipartisan group of 12 total Senators, including Debra Fischer of Nebraska, Joe Manchin of West Virginia, and New York's Kirsten Gillibrand.
The bill, if passed, wouldn't target TikTok specifically. Instead, it would authorize the Secretary of Commerce, under orders of the President, to restrict or ban digital products and services from countries it deems to be foreign adversaries: China, Cuba, Iran, North Korea, Russia, and Venezuela.
Information or communications products or services with more than 1,000,000 US users — like ByteDance's TikTok app — as well as internet hosting services, cloud-based data storage, machine learning services, and other apps that are found to pose "an undue or unacceptable risk to the national security" would be subject to such regulation.
Should a US-based person or company violate a restriction issued under the RESTRICT Act, such as an individual downloading a forbidden program or company distributing software deemed an undue risk, they would be subject to civil penalties of up to $250,000 (or twice the value of the transaction that served as the basis of the order, whichever is greater) and criminal penalties of up to $1 million in fines and up to 20 years imprisonment.
"Today, the threat that everyone is talking about is TikTok, and how it could enable surveillance by the Chinese Communist Party, or facilitate the spread of malign influence campaigns in the US. Before TikTok, however, it was Huawei and ZTE, which threatened our nation's telecommunications networks. And before that, it was Russia's Kaspersky Lab, which threatened the security of government and corporate devices," Senator Warner said in a statement announcing the legislation.
He added: "We need a comprehensive, risk-based approach that proactively tackles sources of potentially dangerous technology before they gain a foothold in America, so we aren't playing Whac-A-Mole and scrambling to catch up once they're already ubiquitous."
Representatives for Senator Warner did not immediately respond to Insider's request for comment.
A bill critical to protect national security?
Proponents of the bill, including the Biden administration, CNN reported, consider the RESTRICT Act an essential step toward protecting the country from digital surveillance and other digital threats from foreign adversaries.
"This legislation would empower the United States government to prevent certain foreign governments from exploiting technology services operating in the United States in a way that poses risks to Americans' sensitive data and our national security," read a March statement from National Security Advisor Jake Sullivan about the bill.
Sullivan's statement continued: "Critically, it would strengthen our ability to address discrete risks posed by individual transactions, and systemic risks posed by certain classes of transactions involving countries of concern in sensitive technology sectors."
Co-sponsors of the bill, including Senator Susan Collins of Maine, argue China's recent escalations in surveillance against the United States, such as the spy balloons shot down across the country in February, makes now an essential time to act to protect national security.
"Through hardware exports, malicious software, and other clandestine means, China has sought to steal information in an attempt to gain a military and economic edge," Senator Collins said in a statement announcing the legislation. "This will directly improve our national security as well as safeguard Americans' personal information and our nation's vital intellectual property."
Or 'a flat-out invasion of our free speech rights?'
While advocates for the bill say it would protect Americans from foreign threats, critics argue its negative impacts could range from diminishing cultural exchange to outright violating the First Amendment
"A US ban on TikTok is a ban on the export of American culture and values to the billion-plus people who use our service worldwide," CNN reported Brooke Oberwetter, a spokesperson for TikTok, said in a statement about the legislation.
Even those who support a TikTok ban, such as Senator JD Vance of Ohio, don't see the RESTRICT Act as an appropriate solution.
"One group of people is very worried that it's too weak on the TikTok issue," Insider previously reported Vance said. "Another group of people is very worried that you're creating, effectively, a PATRIOT Act for the digital age," referencing a controversial law passed after the terrorist attacks of September 11, 2001, that granted wide-reaching surveillance powers to the federal government.
Others argue that the language of the bill is overbroad, and could wind up making services like VPNs — which help provide additional digital security while browsing online — illegal. Willmary Escoto, US policy analyst for the digital rights nonprofit Access Now told VICE, "As written, the broad language in the RESTRICT Act could criminalize the use of a VPN, significantly impacting access to security tools and other applications that vulnerable people rely on for privacy and security."
Eric Goldman, law professor at Santa Clara University School of Law and co-director of the High Tech Law Institute, told Insider the goal of the RESTRICT Act is to allow the government to veto software that allows people to talk to each other and poses a major threat to Americans' First Amendment rights.
"I reject the premises of the law entirely. And so the details don't really matter to me, because I don't think the government should be able to do what it's what the RESTRICT Act would authorize — under any circumstance at all," Goldman told Insider, adding: "The argument is that there's some countervailing social policies that should give the government the right to simply kick software out of the country. And, to me, that's a non-starter. That's just a flat-out invasion of our free speech rights."
Through the bill, the legislators are saying there are conversations taking place in the software that the government finds fundamentally unacceptable based on where the software comes from, Goldman said — which he argues is absolutely unacceptable.
"That's worth fighting for, a grab the pitchforks type of moment when the government says we're just going to stop people from talking to each other," Goldman said. "I mean, everything about that is corrupt."
Bipartisan agreement on censorship
The Chinese government can get data about American consumers in a thousand different ways, Goldman argued, so banning software from the country, he said, is anti-China bashing that acts as low-hanging fruit for politicians to go after, as opposed to more meaningful regulation that would overhaul digital security nationwide.
"If there was a serious effort to fix any problem with TikTok, that would drive us towards some kind of national privacy law," Goldman said. But the US government doesn't want to give up its own ability to surveil its own citizens, or stop gathering its own information on foreign entities using the same methods China does, he said. "It just shows how all this is just a bad form of political theater. Because we actually undermine our moral authority by trying to invoke censorship as a solution to Chinese censorship."
While the future of the bill remains uncertain, Goldman noted Trump's attempt to ban TikTok was found to be unconstitutional and thinks it's likely the RESTRICT Act will fail as well. But seeing such widespread, bipartisan support for the bill does make him worry about the causes that divided politicians are willing to agree upon.
"It's rare to see such bipartisan support for anything nowadays. So the fact that both parties are lining up, you know, chomping at the bit to outdo each other with their sinophobia — it's not a good sign for free speech. Basically, we've seen both parties say censorship is preferred here, and that puts all of us at much greater risk," Goldman said.
He added: "There's such a temptation to support bipartisan efforts that we think 'well, both parties agree to it, it must be great because they can't agree on anything' — or it actually could be a sign that the only thing that gets bipartisan agreement now is ideas that are truly terrible. That might be where we are. Seriously, what do we agree upon? Censorship is a bipartisan value."
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