PATRIOT Act Redux

The RESTRICT Act will do to the First Amendment what the PATRIOT Act did to the Fourth.

In 2001, a mere 45 days after 9/11, the PATRIOT Act became law. It spent the next 18 years infringing on the Fourth Amendment rights of US citizens until it was finally sunset in 2019 after being extended in 2011 and 2015.

In the Senate now is the spiritual successor to the PATRIOT Act, the RESTRICT Act. It is ostensibly aimed at beginning the process to ban TikTok but nowhere in the bill does it mention this particular software. CTRL-F “TikTok” yields:

Among the bill’s flaws is its extremely vague and wide reaching wording.

TRANSACTION.—The term "transaction" means any acquisition, importation, transfer, installation, dealing in, or use of any information and communications technology product or service, including ongoing activities such as managed services, data transmission, software updates, repairs, or the provision of data hosting services, or a class of such transactions.

It stresses the imagination to determine what sort of activities would not be forbidden if this law were to pass. It also retroactively applies to any transaction in the distant past into the undetermined future.

TIMING.—The term "covered transaction" includes a current, past, or potential future transaction.

Of course, the "covered entities" are restricted to "a foreign adversary" in the current version of the bill. But who is a foreign adversary? The bill lists a few to start out. Who gets to decide who is a foreign adversary? How do we remove one from the list? The language is reminiscent of the "enemy combatant" concept during the Global War on Terror; intentionally vague and with lots of room for interpretation and abuse. It turns out that the entity who decides is the Secretary of Commerce, ie. the Executive Branch with no accountability to anyone but the President.

The types of technology covered by this law is also wide and vague.

INFORMATION AND COMMUNICATIONS TECHNOLOGY PRODUCTS OR SERVICES.—The "information and communications technology products or services" means any hardware, software, or other product or service primarily intended to fulfill or enable the function of information or data processing, storage, retrieval, or communication by electronic means, including transmission, storage, and display.

Others have pointed out that this could effectively criminalize using VPNs. VPNs, for the unfamilar, are a way to encrypt and tunnel traffic on the internet to protect communication from bad actors and identity thieves. Ordinary citizens make legitimate use of them all the time.

The most outspoken critic of the bill is Rand Paul (R) KY who emphasized in his debate with Josh Hawley (R) MO that the First Amendment also protects speech which we object to.

None of the above should be construed as a defense of TikTok. It is possible that it is spying on US citizens. It has been demonstrated to be serving different content depending on the viewers location, providing vacuous content to Americans while serving educational content to the people of China. All of these are great reasons why people could rightly opt not to use the app but restricting the First Amendment rights of Americans and granting wide ranging power to the Federal government, particularly the rather volatile Executive Branch, is not the way to do this.

If nothing else, we should demand better lawmaking from our elected leaders. This bill is either sloppy or insidious or both. If the intent is to ban TikTok and other similar apps, then it should be written as such. I wouldn't agree with such a rewritten bill but at least it would be targeted and constrained. So even if you think that TikTok should be banned, I hope you ask your Senators and Representatives to oppose this bill in its current form. They'll make better laws when we hold them accountable for making sloppy ones.

The Constitution is not a menu. Lawmakers behave as if they can pick and choose which parts to honor and which parts to flout. It’s difficult to change for a reason. Legislating overreaching workarounds is not the answer.

This bill pretends to fight against the abuses of antagonistic nations by restricting the rights of American citizens. If the American Experiment is to evolve and survive in a recognizable form, then it should strive to set an example of how a government can interact with its people and foreign adversaries rather than strive to emulate them.

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