Ristrict Act- S.686 -Fails to mention TikTok, on its way to creating another bureaucracy exempt from transparency
Feb. 04, 2023 By Breeauna Sagdal
WASHINGTON D.C- Senator John Thune (R-South Dakota) has introduced "The Restrict Act" (S. 686)
as a bipartisan effort to "ban TikTok." However, the bill has since received heavy criticism from both sides of the aisle, uniting opposition from the far-left
to the far-right
The unified opposition stems from the broad language in the bill, which actually doesn't specify TikTok, but includes any online platform with over one million users. The bill has been read twice and was just referred to the Committee on Commerce, Science, and Transportation.
S. 686 authorizes the creation of a new agency-like committee that operates at the pleasure of the President, under the Executive Branch's Secretary of Commerce. This un-elected body would be given an unlimited budget for staffing and resources, have the sole and unreviewable discretion to determine a "foreign adversary," make FOIA-exempted decisions based upon past and present online activity, and then impose penalties of "not more than one million dollars," or "if a natural person, 20 years in prison."
Section 2 is broken into sub-sections that define whom and what the law will apply to.
The definition of an Entity for example, can easily be applied to nearly every U.S Citizen;
Section 2(6) ENTITY.—The term “entity” means any of the following, whether established in the United States or outside of the United States:
(A) A firm.
(B) A government, government agency, government department, or government commission.
(C) A labor union.
(D) A fraternal or social organization.
(E) A partnership.
(F) A trust.
(G) A joint venture.
(H) A corporation.
(I) A group, subgroup, or other association or organization whether or not organized for profit.
Section 2 Ss 3(a-b)
- Regardless of how or when such holding was or will be obtained or otherwise come to have been held, a controlling holding held, directly or indirectly, in an ICTS covered holding entity by a foreign adversary (see i,ii,iii)" AND includes "any other holding, the structure of which is designed or intended to evade or circumvent the application of this Act, subject to regulations prescribed by the Secretary.
Section 2 Ss 4(C)
— The term “covered transaction” includes any other transaction, the structure of which is designed or intended to evade or circumvent the application of this Act, subject to regulations prescribed by the Secretary."
The last line leaves the interpretation of "intent to evade or circumvent," open and subject to the regulations prescribed by the Secretary.
Many have pointed out that this section could be used to surveil and penalize U.S Citizens who use a VPN while online, if the platform they are accessing is currently under review by the Secretary.
Being that the actions and findings of the Commerce Secretary are exempt from;
The Paperwork Reduction Act (Section 15(a)), Judicial and Administrative Review (Section 12), and the Freedom of Information Act (Section 15 Ss F), there is actually nothing in this bill that would require notification to the American public in advance, or even after they, or a platform they might be using, has come under review.
This lack of process has the potential to act as a backdoor into the online activity of every U.S Citizen, giving the federal government the authority to spy on Americans through Ring door cameras, web-cams, SMART devices and more.
Without prior notice, a mom who runs a daycare in rural South Dakota could come under surveillance because she accepted payment for daycare from PayPal. The things that are legal today, could change overnight and without notice, making normal actions subject to surveillance, without prior notification.
According to Congressman Rand Paul, "it's the Patriot Act on steroids."
Given the broad sweeping definitions, and lack of public notification, in its current form the language could open any American up to surveillance if they currently or have previously; used a VPN, purchase online goods, mine or buy cryptocurrency if a node exists in a country of concern, play online gaming sites/ in-app purchases, purchase from Etsy if the item originates in country of concern, or otherwise engage in any action deemed to be against the "national interest" by the Commerce Secretary. Penalties for these actions include 20 years in prison, civil penalties of up to $250,000, and even civil or criminal asset forfeiture which are outlined in the bill as being specifically applicable to a "natural person, including a citizen or national of the United States."
According to Senator John Thune, criticism of the bill is misinformation as the bill would only apply to foreign adversaries, and not to American citizens. "The RESTRICT Act responds to foreign-adversary technology threats of today by giving the force of law to former President Trump's nearly identical effort, and it prepares for the threats of the future so the United States isn't forced to play Whac-A-Mole every time a platform like TikTok rears its ugly head. The bill targets foreign countries like China and Russia, and it protects American consumers from the threats posed by these adversarial nations," Thune said in a statement sent to the Washington Examiner
A D V E R T I S E M E N T
A D V E R T I S E M E N T
According to the definition of "person"
in the bill itself, and the penalties that are specifically applicable to a "person,"
Thune may not fully understand the bill he has sponsored.
Section 2 Ss 13- the Definition of "Person."
—The term “person” means a natural person, including a citizen or national of the United States or of any foreign country."
Now apply the definition of "person" to every penalty outlined in Section 11 of the bill;
Thousands flock to Twitter Spaces daily to glean information from the nation's best and brightest. Recent spaces have been dominated by concerns for the Restrict Act. Among those most critical of the bill are coders, engineers, software designers and pretty much the entire cryptocurrency community.
Cryptocurrency has had some heavy set backs lately, and as a result the community has expressed concerns related to recent federal actions. The "unnecessary" intervention of Signature Bank by the FDIC, and the federal government's intervention into third party settlement companies ahead of FedNow rolling out this July, have created speculation, and mistrust within the industry. Given this context for concern, miners say the bill's broad language could apply to nodes in China, giving the federal government the ability to seize crypto assets.
In particular, the language outlined within Section 5 lists nearly every aspect of crypto mining, and distributed ledgers in addition to pretty much all online activity. In addition, the powers conferred to the Secretary would allow for the committee to add a country, platform or foreign adversary ad hoc and via ex parte decision. Again, the committee is exempt from the Paperwork Reduction Act(Section 15(a)), meaning at no point in time would the government need to notify the public that an adversary had even been identified or added to a list.
According to the procedures outlined in Section 6(b)- notice shall be given, "not later than 15 days before the date on which the Secretary makes or removes a designation..." "By classified communication, notify the President pro tempore, Majority Leader, and Minority Leader of the Senate, the Speaker and Minority Leader of the House of Representatives, and the relevant committees of Congress, in writing, of the intent to designate a foreign government or regime as a foreign adversary."
In light of the recent UCC push to remove cryptocurrency as a medium of exchange, the Federal Reserve's push to create their own retail Central Bank Digital Dollar, and now the Restrict Act happening concurrently, it would appear that some coordinated level or intentional attempt at consolidation, is a plausible scenario.
At the most basic level, thousands of Americans rely on TikTok for revenue, some having dedicated their entire career to building massively monetized followings on the platform.
Regardless of what people think of TikTok, organizations from the left to the right are calling this bill the end of free speech. Twitter has been trending with #RestrictThis, and #TrojanHorse as thousands flock to spaces to learn more about the bill's broad language. While the most commonly expressed sentiment is that people no longer trust the federal government "Uniparty," and have lost faith in Congress's ability to make good policy, the bill is also uniting people from across the political divide and inspiring new allies to work towards solutions.
Editor's Note- Update made at 12:49 to fix a coding error.
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--Breeauna Sagdal - Editor in Chief
|Post Date: 2023-04-04 07:27:23||Last Update: 2023-04-10 16:58:50|