Senator Warner’s RESTRICT Act Is Designed To Create The Great Firewall Of America

Policy

from the we-become-what-we-fear dept

Earlier this month, we wrote about Mark Warner’s RESTRICT Act, mainly in the context of how it appeared to be kneejerk legislating in response to the moral panic around TikTok.

Despite the bill being out for a few weeks, over the last few days, some of the discussion around it has gone viral, in particular the claims that VPN users “risk a 20-year jail sentence” under the bill. Senator Warner’s office has brushed aside these concerns, while somewhat bizarrely admitting that the bill is really designed to be something of a bill of attainder against any foreign company Mark Warner doesn’t like.

“Under the terms of the bill, someone must be engaged in ‘sabotage or subversion’ of communications technology in the U.S., causing ‘catastrophic effects’ on U.S. critical infrastructure, or ‘interfering in, or altering the result’ of a federal election in order for criminal penalties to apply,” Warner’s communications director, Rachel Cohen, said.

“The bill is squarely aimed at companies like Kaspersky, Huawei and TikTok that create systemic risks to the United States’ national security, not individual users,” she clarified.

To be clear: there’s basically no way this bill is going to be used against a person using a VPN. That is an exaggeration and something of a misreading of the bill. But, holy shit, does the bill still have massive, massive problems. It represents a ridiculously dangerous weapon in the hands of any US Presidential administration.

As Elizabeth Nolan Brown at Reason rightly noted, the language is so stupidly vague and so broadly worded that the whole “jailtime for VPN users” can be read into it in a non-crazy way.

But even if we take Warner’s spokesperson at her word and grant the claim that it’s not going to be used to jail people for using a VPN, that doesn’t actually make the bill any better. It’s absolutely terrible and shows a lack of understanding about how any of this works.

Tragically, this is becoming all too common with Senator Warner who, when he was elected to the Senate in 2009, was touted as a Senator who actually understood technology, based on his career in the mobile phone industry. But, in reality, he’s never been a tech guy. He was a political guy who did a bunch of venture investing in the mobile phone arena. And his lack of understanding of how technology actually works is evident from basically every tech bill he’s introduced.

He was on the wrong side of the encryption issue, he’s on the wrong side on Section 230, and for a few years now has been pushing a disastrous and dangerous plan called the SAFE TECH Act, which is a full frontal attack on the open internet. For what it’s worth, he just recently reintroduced the SAFE TECH Act, and I’d been meaning to write about that, but there hasn’t been enough time since so much other stupid stuff is going on, including this nonsense around the RESTRICT Act.

The RESTRICT Act has similarities to the SAFE TECH Act, to the point that I wonder if it’s written by the same legislative aid. Both bills are ridiculously broadly worded in a manner that is inconsistent with reality. Just as the RESTRICT Act required staffers to come out and say “no, no, it doesn’t criminalized VPNs,” with the SAFE TECH Act, Warner staffers had to run around and insist that it didn’t take away Section 230 from any site with ads (even though the poorly worded legislation certainly could be read that way).

You’d think that this might lead Warner to be more careful, but he seems committed to the bit of writing stupidly broad, vaguely worded bills that would create a huge mess, and then attacking those who criticize those bills (this he has in common with Senator Blumenthal, who similarly is unwilling to consider that his own bills might be poorly drafted).

In the case of the RESTRICT Act, we’ve already highlighted that any attempt to ban TikTok almost certainly violates the 1st Amendment. Warner’s bill does little to try to address that, but gets around it by… giving unprecedented, ridiculous authority and power to whoever is in the White House, to effectively ban any technology or service they deem to pose “an unacceptable risk.”

As always, judge any such bill as to how it would be used by the worst President you can think of.

The vagueness in language is kind of stunning. The bill authorizes the Secretary of Commerce to “identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate” situations “to address any risk” where the Secretary alone decides that the technology “poses an undue risk” of a wide variety of things with vague and scary sounding terms around national security and critical infrastructure, but also including this fun catch-all at the end:

otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons.

That’s a pretty big subjective standard.

And, while the bill says that the Secretary should publish an explanation of the decision, they’re also allowed to hide it by shouting “national security!” Which, you know, is already abused like crazy.

The bill also allows the President to “compel divestiture” of any company that is deemed to be such a risk.

There is nothing even remotely approaching due process or consideration of Constitutional rights. Basically every foreign country will look at this bill and immediately scream that it will be used and abused in a protectionist manner. Warner is kinda blatant about this as it literally lists out which industries he’s trying to protect.

The worries about the VPN come from the penalties part of the bill, which say:

It shall be unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under this Act, including any of the unlawful acts described in paragraph (2)

Paragraph 2 is so broadly worded (sense a pattern here?) that it includes a ban on “counseling” or “approving” “any act” to try to get around a ban put in place under this bill.

There’s a lot more, but let’s call this out for what it is: a law worded so broadly that it will allow any administration to effectively designate any foreign company as some sort of “undue risk” and ban it, with little to no due process, and with some of the details kept secret. Anyone who thinks that won’t be massively abused simply has not been paying attention.

It’s jingoistic, propagandistic, authoritarian nonsense.

Indeed, it’s the kind of thing that we highlight when authoritarian countries with dictatorial leaders put something like it in place, and abuse it to protect friendly companies and shut down criticism. As such, even the fact that Senator Warner introduced this bill will be used by China, India, Russia, Iran, and many other countries as justification for their own leaders banning foreign companies they dislike.

Some point out that those countries would do the same thing anyway, which is true, but when doing so at least we can point out how terrible it is and highlight how it goes against basic concepts like due process and freedom. But the US going down that same dangerous path just completely throws that out the window.

What the RESTRICT Act creates, in a massive overreaction to concerns about Chinese-based companies, is a system for the US to create its own Great Firewall. Our attempt at pushing back on China only serves to make the US more like China, and stupidly bless their repressive and illiberal approach to banning foreign companies.

Warner, in fact, more or less admits all of this in an interview he gave to Russell Brandom at Rest of World. Brandom highlights just how anti-open internet and illiberal all of this is, and Warner’s response is basically “but China made us do it”:

But for me, it comes back to the hypocrisy of the Chinese government. China has prohibited American apps like Facebook and Google from their market for years. The Chinese version of Twitter is completely censored by the Chinese government. 

So, because China takes a dictatorial, authoritarian, illiberal approach to the internet, so must the US?

It’s the worst kind of lawmaking: a severe overreaction to a potentially legitimate concern (though with little actual evidence to support the nature and scope of that concern), combined with a ridiculously powerful, likely unconstitutional bill that puts tremendous power in the hands of the administration with few limits (there is some ability for Congress to push back, but that’s unlikely to matter if the White House and Congress are on the same moral panic page).

In a reasonable world, people across the political spectrum would call out this monstrosity for what it is: a dangerous attack on freedom and openness, and a deep, cynical embrace of exactly that which Warner claims to fear.

Filed Under: banning apps, china, commerce secretary, great firewall, mark warner, moral panic, overreaction, restrict act, safe tech act
Companies: tiktok