The Broad, Vague RESTRICT Act is a Dangerous Substitute for Comprehensive Data Privacy Legislation

The recently introduced RESTRICT Act (S. 686, Sen. Warner and Sen. Thune) rightfully is causing a lot of concern. This bill is being called a “TikTok ban,” but it’s more complicated than that. As we wrote in our initial review of the bill, the RESTRICT Act would authorize the executive branch to block “transactions” and “holdings” of “foreign adversaries” that involve “information and communication technology” and create “undue or unacceptable risk” to national security and more. 

We've explained our opposition to the RESTRICT Act and urged everyone who agrees to take action against it. But we've also been asked to address some of the concerns raised by others. We do that here in this post.

At its core, RESTRICT would exempt certain information services from the federal statute, known as the Berman Amendments, which protects the free flow of information in and out of the United States and supports the fundamental freedom of expression and human rights concerns. RESTRICT would give more power to the executive branch and remove many of the commonsense restrictions that exist under the Foreign Intelligence Services Act (FISA) and the aforementioned Berman Amendments. 

But S. 686 also would do a lot more. 

EFF opposes the bill, and encourages you to reach out to your representatives to ask them not to pass it. Our reasons for opposition are primarily that this bill is being used as a cudgel to protect data from foreign adversaries, but under our current data privacy laws, there are many domestic adversaries engaged in manipulative and invasive data collection as well. Separately, handing relatively unchecked power over to the executive branch to make determinations about what sort of information technologies and technology services are allowed to enter the U.S. is dangerous. If Congress is concerned about foreign powers collecting our data, it should focus on comprehensive consumer data privacy legislation that will have a real impact, and protect our data no matter what platform it’s on—TikTok, Facebook, Twitter, or anywhere else that profits from our private information. That’s why EFF supports such consumer data privacy legislation. Foreign adversaries won't be able to get our data from social media companies if the social media companies aren't allowed to collect, retain, and sell it in the first place.

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TELL CONGRESS: DON'T PASS THE RESTRICT ACT

Would the RESTRICT Act result in a “ban” on the personal use of TikTok? It’s unclear. 

This bill is not a “ban” on personal use, or even on a technology directly. The bill may result in a ban on TikTok because it grants the Commerce Department such broad authority. That ban may take the form of removing it from app stores or a forced sale, or other mitigation measures imposed against the owners of the technologies. The RESTRICT Act makes use of mitigation measures that have been used under the International Emergency Economic Powers Act and by the Committee on Foreign Investment in the United States. The bill applies to six “foreign adversaries” (China, Cuba, Iran, North Korea, Russia, and Venezuela), and could be expanded to other countries. Though the bill is being referred to as a TikTok ban by many, it can be applied to other companies, like Huawei or Kaspersky, which are headquartered in those countries; indeed, Sen. Warner, the bill’s co-sponsor has identified those companies as the bill’s primary targets. 

As of yet, the U.S. government has not shared information that would justify a forced sale or ban of TikTok from app stores, or other possible mitigation measures.