Many U.S. policymakers on both sides of the aisle want to ban TikTok. As legislative momentum builds to restrict the Chinese-owned app, the RESTRICT Act takes another swing at TikTok but unlike other proposals, targets foreign companies posing potential national security threats broadly rather than focusing on one specific company and would provide the public more information about the security risks of products that undergo a review. These are useful features, but if Congress wants to create a fair process that other countries could model, it should also establish a concrete evidentiary standard for proving security risks and a clearly-defined appeals process subject to independent judicial review.
The Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act, sponsored by Sen. Mark Warner (D-VA) and Sen. John Thune (R-SD) and endorsed by the Biden administration, empowers the Secretary of Commerce to identify and address threats posed by information and communication technology products that have connections to foreign adversaries. Specifically, it allows the Secretary of Commerce to develop a streamlined process for identifying and mitigating threats from foreign adversaries, particularly those products used in critical infrastructure, telecommunications, or technologies with national security implications. Mitigation tactics may include divestiture or an outright ban, according to Sen. Warner.
This bill has two positive qualities that make it stand out from similar legislation. First, it would cover products with ties to all foreign adversaries, including China, Cuba, Iran, North Korea, Russia, and Venezuela. The Department of State maintains this list, but Congress can also reject a future addition or remove the designation of a foreign adversary. Other proposals focus only on China. For example, the Deterring America’s Technological Adversaries (DATA) Act specifically targets data sharing by TikTok with the Chinese Communist Party. Likewise, the legislation proposed by Sen. Josh Hawley (R-MO) grants the president the authority to block and prohibit all transactions by ByteDance, given that it “opens the door for the Chinese Communist Party to access Americans’ personal information.” A bill introduced in 2021 by Rep. Jack Bergman (R-MI) would sanction “software programs that engage in the theft of user data on behalf of a communist country.” The RESTRICT Act instead targets all foreign adversaries rather than creating explicitly anti-China legislation.
Second, the RESTRICT Act would provide the public with more information about the risks posed by foreign products and services. The bill directs the Secretary of Commerce to coordinate with the Director of National Intelligence to provide declassified information to the American public about the review process, both for products permitted and denied. Improved transparency will help educate the public about potential security risks and the reasoning behind a ban.
If Congress pursues the RESTRICT Act, there are two important changes it should make. First, Congress should create an evidentiary standard for establishing which products pose a national security risk and thus should be subject to restrictions. The bill does not include any guidelines for what threshold government authorities must reach to establish that a product poses an unacceptable risk. No administration should be allowed to arbitrarily block apps without actual evidence of a national security threat.
Second, policymakers should include an appeals process for affected companies that is subject to judicial review. The bill text does not include any form of an appeals process for companies subjected to restriction and excludes decisions made by the Secretary of Commerce about foreign products from normal judicial oversight. Due process is essential as a check on overreach by an administration and to avoid the politicization of bans. Without an appeals process, the Executive branch would have too much power to decide unilaterally what products Americans can and cannot access.
It is looking increasingly likely that TikTok will face restrictions in the United States. Whether this happens through the forced sale of ByteDance’s stake in its U.S. app or through legislation remains to be seen, but Congress should use its interest in addressing the issue to pass legislation that addresses security risks from more than just one app.
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