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Rae Hodge

TikTok ban: "Patriot Act on steroids"

First off, let's be clear on one thing: The supposed "TikTok ban" bill — aka the bipartisan Restrict Act (S.686) — does not actually ban TikTok. The word "TikTok" does not appear once in the bill's 55 pages. But critics of the Restrict Act on the left and right are now sounding the alarm in rare alignment — calling the measure a Patriot Act 2.0 which opens the door to unprecedented digital surveillance of Americans, and gives an appointed executive panel unchecked power to censor the internet in the U.S.

Even though the measure has been temporarily stalled in the Senate after it created a contentious rift within both parties, a number of bills are floating around with similar language. As might be expected, TikTok itself has been overflowing with user videos firing back at the legislation and its ilk, including those from conservative media voices, along with those from progressives like Rep. Alexandria Ocasio-Cortez of New York. 

Digital rights advocacy group Electronic Frontier Foundation issued a sober rebuke of the legislation Thursday, saying the measure fails to protect private user information.

The supposed TikTok ban wouldn't ban TikTok — but could open the door to unprecedented digital surveillance of Americans.

"Due to undefined mitigation measures coupled with a vague enforcement provision, the bill could also criminalize common practices like using a VPN or side-loading to install a prohibited app," EFF said. "There are legitimate data privacy concerns about social media platforms, but this bill is a distraction from real progress on privacy."

Noting that the Restrict Act doesn't require the executive branch to justify its restrictions on expressive technologies like TikTok, and limits lawsuit challenges to those restrictions, EFF condemned the bill's potential threats to free speech.

"Instead of passing this broad and overreaching bill, Congress should limit the opportunities for any company to collect massive amounts of our detailed personal data, which is then made available to data brokers, U.S. government agencies, and even foreign adversaries, China included," EFF said. 

The bill's primary sponsors, Sen. John Thune, R-S.D., and Sen. Mark Warner, D-Va., don't see it that way.

In an email to Salon, Warner spokeswoman Rachel Cohen insisted the law would focus "on restricting businesses that facilitate or abet" specific kinds of harm, but not on individual users. "This legislation is aimed squarely at companies like Kaspersky, Huawei and TikTok that create systemic risks to the United States' national security." 

That doesn't appear to square with the actual language of the bill. Although most of its legislative language is clearly geared toward controlling corporate mergers — and giving the president a new tool that can force a foreign company to divest itself of U.S. interests — there's no specific provision that protects individual users of banned websites or software. Instead, it would give an appointed presidential committee the power to make new rules and enforce them, with little oversight.

How could those new powers pose a threat to individual users? First, there's a real possibility that, according to the current version, an individual user could face criminal charges for downloading or accessing banned content, such as through the use of a virtual private network. Depending on the appetite for enforcement, the penalties could include up to 20 years in prison for using a VPN to access a  banned site — and, in some interpretations, up to $1,000,000 in fines.

Another threat is the lack of transparency and accountability the bill grants the appointed committee that would decide which apps to ban. The lack of judicial review and reliance on Patriot Act-like surveillance powers could open the door to unjustified targeting of individuals or groups.

President Biden's national security adviser, Jake Sullivan, is stoked about the Restrict Act. In a March 7 statement, Sullivan said it would give the government new abilities to "mitigate the national security risks posed by high-risk technology businesses" in the U.S., and "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."

The troublesome phrase in that word salad, privacy advocates suggest, is "individual transactions." 

Across its 55 pages, the Restrict Act offers a lot of winding, tricky language with room for broad interpretation. Concerns are emerging about how the bill could threaten civil liberties and First Amendment rights, especially considering its vague language, lack of oversight for sweeping new executive (not elected) authorities, and the secretive nature of the FISA courts, which rule on a range of intelligence and surveillance cases..

Here are the highlights of the Restrict Act that have already led to serious dissent:

Sections 2 and 8: Appointed censors: Check out the segment about "covered transactions." That little phrase is the fulcrum on which the entire bill hinges. Here it's defined as "any merger, acquisition, or takeover that is proposed, pending, or completed on or after the date of enactment of this Act ... if the Committee determines that the covered transaction involves a substantial interest in critical infrastructure, critical technology, or critical data of such person."

The bill could threaten civil liberties and First Amendment rights, especially considering its vague language, lack of oversight for sweeping new executive authority, and the secretive nature of the FISA courts.

"Committee" here means the Committee on Foreign Investment in the United States (CFIUS), which would be appointed by the president, and by statute would include the secretary of commerce, the attorney general, the defense secretary and the head of Homeland Security. They would have enormous discretion to decide what a "substantial interest" is — in critical infrastructure, technology or data. 

Similarly, in Section 8, enormous power is vested put into this new CFIUS and the secretary of commerce, with an even more concerning caveat: There's not much meaningful judicial review here compared to the power CFIUS has to unwind or shut down those "covered transactions."

Sections 5, 12 and 10: Few judicial checks; lots of surveillance: Section 5's criminal forfeiture provisions are noteworthy, especially this part: "[A]ctions taken by the President and the Secretary [of Commerce], and the findings of the President and the Secretary, under this Act shall not be subject to administrative review or judicial review in any Federal court, except as otherwise provided in this section."

This could limit the ability to challenge the panel in court by itself, and judicial accountability could be made harder since classified information would also be included in judicial proceedings. FOIA and public records access laws could be hamstrung here. The same concerns show up in Sections 11 and 12.

Section 10 would also let the attorney general impose requirements on "covered entities" to provide "technical assistance" to the government for —you guessed it — surveillance purposes. Again, with no judicial review.

Section 6: Patriot Act 2.0: Gag orders, secret FISA court proceedings, public information blackouts and special administrative exemptions? If that all sounds familiar from the post-9/11 era, you'll get where this is going. If you happen to know a first-year law student, have them read this and watch how wide their eyes get:

"If a civil action challenging an action or finding under this Act is brought, and the court determines that protected information in the administrative record, including classified or other information subject to privilege or protections under any provision of law, is necessary to resolve the action, that information shall be submitted ex parte and in camera to the court and the court shall maintain that information under seal."

In other words, evidence about a person could potentially be used against that person without them even knowing about it. So much for due process. 

Can the bill be fixed? Potentially, yes. When Salon asked Cohen to address concerns about the lack of transparency and accountability (as mentioned in EFF's March 16 statement) she said Warner would be open to amendments, while insisting, "We don't believe that the bill, as written, supports that concern in any way.

Whether the bill is worth fixing strikes some privacy and free speech advocates as a different question.

The ACLU has condemned the bill, along with a previous version — the similar, but distinct DATA Act — and called both measures a "danger to free speech."

"Blocking access to entire platforms would violate the First Amendment rights of the estimated 150 million Americans who use the platform daily," the organization said in a March 23 release

Furthermore, the ACLU argues that banning TikTok is a bad idea in the first place and would clearly "violate the First Amendment," in the words of senior policy counsel Jenna Leventoff.

"The government can't impose this type of total ban unless it's necessary to prevent extremely serious immediate harm to national security," Leventoff said. "There's no public evidence of that type of harm, and a ban would not be the only option for addressing that harm if it did exist." 

Ocasio-Cortez actually joined the platform in response to the recent TikTok hearings, her first video included her thoughts on the bill's lack of congressional oversight.

"Do I believe TikTok should be banned? No," she said.

"The government can't impose this type of total ban unless it's necessary to prevent extremely serious immediate harm to national security."

Describing the legislation as "putting the cart before the horse," Ocasio-Cortez called out the rushed nature of the bill after Congress' recent marathon committee hearing where members grilled TikTok CEO Shou Zi Chew. 

"Usually, when the United States is proposing a very major move that has something to do with significant risk to national security, one of the first things that happens is that Congress receives a classified briefing," Ocasio-Cortez said in her video.

"And I can tell you that Congress has not received a classified briefing around the allegations of national security risks regarding TikTok." 

Rep. Jamaal Bowman, a New York Democrat whose district adjoins Ocasio-Cortez's, stood outside the Capitol to lead a protest against a TikTok ban during the questioning of Chew. Surrounded by supporters who noted that Facebook and other platforms collect just as much data as TikTok, Bowman argued that TikTok has become a platform for small business and commerce — a crucial tool for a generation of gig workers and side-hustlers. 

Bowman, who supports data privacy legislation that focuses on consumer protection, has become the voice of TikTokers on the Hill and now leads the push against a full ban on the app. He says he's willing to listen to national security concerns, but so far has heard "a lot of fear-mongering and speculation and not as much actual evidence."

While Republican-led inquiries into TikTok and other social media platforms have been increasingly aggressive, not all members of the GOP are on board. That much became clear on Thursday when a vote on the measure was blocked in the Senate amid an intra-party fray. 

Sen. Josh Hawley, R-Mo., for instance, has called out the Restrict Act for failing to actually ban TikTok. Hawley has a competing bill that he claims would do that. 

Hawley tried to force a vote in the Senate on Wednesday through a procedural one that rarely works except as a reliable play for attention. 

Then there's Sen. Rand Paul, R-Ky., the Senate's leading libertarian conservative, who attacked the Restrict Act in a Wednesday op-ed for the Louisville Courier-Journal, He wrote that Republicans were driving a generation of young voters away from the party with an unpopular wedge issue.

"Congressional Republicans have come up with a national strategy to permanently lose elections for a generation: Ban a social media app called TikTok that 94 million, primarily young Americans, use," Paul wrote. 

"On the one hand, Republicans complain about censorship, while with the other hand, these same Republicans advocate to censor social media apps that they worry are influenced by the Chinese," Paul said. "Do we really want to emulate China's speech bans?"

The senator's father, former congressman and presidential candidate Ron Paul, called the Restrict Act "the Patriot Act on steroids."  

The Libertarian Party's Mises Caucus also opposes the measure, saying it "gives the government authority over all forms of communication domestic or abroad." 

Fox News pundits have also been shooting holes in the measure for a week now. In a moment of implausible coalition-building, Tucker Carlson played a clip of Ocasio-Cortez explaining her opposition, and then agreed with her.

"This is not an effort to push back against China. It's part of a strategy to make America much more like China, with the government in charge of what you read and see and with terrifying punitive powers at their fingertips," Carlson said.

"This is not an effort to push back against China. It's part of a strategy to make America much more like China, with the government in charge of what you read and see." Want to know who said that? Tucker Carlson.

"We've seen this before from the national security state again and again. Confronted with a foreign adversary, for example, after 9/11, the federal government uses the opportunity to expand their police powers over the American population, and they do it under false pretexts, and they do it quickly," he continued.

Fox prime-time host Jesse Watters went after Sen. Lindsey Graham, R-S.C., for supporting the measure. Initially, Graham denied that and actually appeared not to realize that he was listed as a co-sponsor. When Watters responded, "This is garbage," Graham was forced to eat crow.

"I want to push back against China, but within a constitutional framework. You're right about that," said Graham. "You've made these allegations, and I'll come answer better next time." 

Even Alex Jones of Infowars got in on the criticism, thumbing through the bill text on his show, this week and calling the Restrict Act "the biggest power grab I've ever seen."

The Restrict Act is just one of several measures that free-speech advocates say could pose similar threats. It's an unusual moment on Capitol Hill, in that the bipartisan coalition that wants to ban TikTok may be overwhelmed by the bipartisan coalition that has concluded that's a terrible idea.

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