Sen. Mark Warner, a sponsor of the RESTRICT Act, claims we have nothing to worry about because the government will use its broad censorship and surveillance powers responsibly.
When we previously wrote about the talk of banning TikTok – which would be blatantly unconstitutional on its own — we did not anticipate the scope of the absolutely awful legislation that would soon pick up steam in Congress.
The RESTRICT Act — the bill purportedly intended to facilitate a TikTok ban — does not stop at TikTok. It gives the executive branch broad discretion, with little to no judicial review, to ban or restrict communications technologies from any country on an open-ended list of “foreign adversar[ies].” It’s incredible that a single elected official would think the bill could pass Constitutional muster but it appears to have significant bipartisan support.
Journalists routinely use TikTok and other foreign-owned technologies to gather and report news and communicate with sources. Sources from “foreign adversaries” often possess highly newsworthy information for foreign policy journalists. The ways the government could abuse the RESTRICT Act to stifle investigative reporting and public discourse during times of conflict are truly horrifying to contemplate.
That doesn’t mean that somehow exempting journalists would fix the bill — far from it. Free speech is not just for journalists. But the bill’s impact on press freedoms serves to compound its trampling on the First Amendment as a whole.
Broad and unchecked censorship authority
It is well-established that the government is required to show a grave, imminent danger to national security before imposing a “prior restraint” on speech. But the bill contains no such requirement. It allows the government to issue explanations for its actions but only if it deems doing so “practicable” and in the interests of national security.
All it requires is a unilateral determination, by non-elected officials, that the technology poses “an undue or unacceptable risk.” What does that mean? Whatever the government wants. The kinds of risks permitting invocation of the RESTRICT Act include, among other things, “steer[ing] policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States.” Then the bill tacks on a catch-all for other risks to national security or the safety of “United States persons.”
The language is broad enough to encompass platforms hosting content that might persuade someone to oppose U.S. policy — or even information that just embarrasses officials. The First Amendment entitles Americans to access even false foreign propaganda if they so choose. But the RESTRICT Act would empower the government to ban, restrict and surveil platforms that host true information they would prefer Americans not know about.
No one in their right mind would ever suggest a similar legislative scheme for banning foreign newspapers, broadcasters or mail. But, for whatever reason, politicians seem unable or unwilling to apply analog precedents to digital times.
Had the RESTRICT Act (and the internet) existed during the Nixon administration, does anyone doubt it would have tried to ban foreign platforms hosting opposition to the Vietnam War, just as it sought to enjoin the Pentagon Papers? Could the government invoke the RESTRICT Act to ban Wikileaks? You might assume the government would never declare Iceland (where Wikileaks is based) an adversary. But the bill also allows restrictions on companies that adversaries “direct” or in which they have “an interest.” Is it that much of a stretch that the government might claim Wikileaks is “directed” by Russia?
Draconian penalties for common newsgathering methods
And what if a journalist, or anyone else, attempts to access a restricted platform through commonplace technologies like a VPN? Under the RESTRICT Act, they could spend 20 years in prison or pay up to a million dollars in fines. That’s especially disturbing to Freedom of the Press Foundation (FPF), where we often assist foreign journalists concerned about VPN restrictions by repressive regimes.
As FPF Principal Researcher Dr. Martin Shelton put it:
“When we conduct security trainings with journalists around the world, far too often we've seen how journalists and the communities around them feel they could be put at risk by using VPNs and other circumvention tools. It's horrifying to contemplate that possibility in the U.S.”
And the bill not only permits imprisonment of VPN users themselves but of people who “aid, abet, counsel, command, induce, procure, permit, or approve” their conduct (or other prohibited conduct). Publishers and editors beware.
Government: “Just trust us”
Sure, the bill’s sponsors, including Sen. Mark Warner, have disclaimed any intention to fine or imprison VPN users. But courts consider the words on the page over legislators’ intentions. The drafters of the Espionage Act could not have anticipated, let alone intended, that it would be used to charge someone like Julian Assange. Yet here we are.
Our current president insists on prosecuting Assange for routine newsgathering. Our last one wants journalists imprisoned and assaulted. The one before set records for whistleblower prosecutions. And a likely 2024 candidate wants to bankrupt his critics with litigation.
But those behind the RESTRICT Act say we should trust future administrations to use broad powers to silence dissent responsibly. Of course we shouldn’t. Especially when even the supposed “responsible” use of the bill — banning a platform used by half of the U.S. based on speculation — is already an unprecedented act of mass censorship.
There is far more wrong with the bill than the censorship powers it creates. Its allowance of secret evidence in legal proceedings raises alarming due process concerns. The surveillance it would enable, including by allowing the government to broadly demand that any company it is investigating hand over information, has led some to call it the “Patriot Act for the digital age.” It’s ironic that concerns about Chinese access to American user data ultimately prompted a bill that would grant our own executive branch surveillance authority reminiscent of China’s.
Yet some still insist the bill can be rescued through revision. It can’t. Nothing good can come of it. We say throw the whole thing out and pass serious digital privacy legislation instead.
