By Lawrence L. Muir, Jr.
President of Broughton House
In a late March Pew Research poll, Americans favored a ban of TikTok by a 50%-22% margin. But four years into federal efforts to ban the app, Americans are no closer to getting the political outcome they desire. Congress has introduced four bills, with rumors of others on the way, to ban the app. At the risk of being bogged down from bills that have the same goals but different approaches, Congress should prioritize bills that are constitutionally secure and legislatively durable. Of the bills presented to this point, the RESTRICT Act is the closest to meeting those two benchmarks.
In a previous editorial I addressed the potentially fatal legal flaw in the TikTok ban bills produced by Senators Hawley and Rubio. I argued that by limiting their respective bills to ByteDance and TikTok exclusively, the bills may be struck down as unconstitutional bills of attainder under Article I, Section 9. Further, basing their legislation solely in IEEPA opens other legal challenges for TikTok. IEEPA provides the President, through designees, with specific powers to act, producing swifter and more decisive actions. But as three judicial opinions have ruled, IEEPA is fundamentally flawed as a choice for banning TikTok because of the Berman Amendment, which creates exceptions for personal communications not involving money and informational materials. Their legislation attempts an end run around the Berman Amendment by simply saying that section does not apply to their TikTok bills, but this language only strengthens the bill of attainder argument because the Berman Amendment would still apply to any other app from any other company and country. On March 29, Senator Rand Paul expressed concerns over the bills’ “First Amendment issues”, which presumably refer to censorship through the blocking of personal communications and information that the Berman Amendment sought to protect.
The bipartisan RESTRICT Act negates both of those legal problems through one fundamental decision: the choice to focus the bill on underlying technologies rather than specific actors. This choice eliminates the bill of attainder argument because the technology decision makes the bill inherently neutral as to what must be reviewed and can be blocked and does not identify a specific company. The bill also broadens the list of bad actor states to six nations. As importantly, the previous use of IEEPA highlighted the difference between indirect regulation of personal communications, which is impermissible, and permissible incidental burdens. Framing the RESTRICT Act as a ban on technology that shares data with a foreign political party underscores the national security rationale. This means the ban can be seen as an incidental burden on communications and information rather than an indirect regulation of them. The focus on technology, as opposed to the owner of the technology, takes away bill of attainder concerns. The RESTRICT Act’s approach will narrow the tenable legal challenges available to TikTok, which in turn would increase the likelihood a ban on TikTok will remain effective, and be useful against future technologies.
The RESTRICT Act does have some language concerns that should be addressed. Section 3(b) of the Restrict Act sets out a procedure consistent with Section 4 of President Trump’s Executive Order 13942, which directs the action through the Secretary of Commerce. In the RESTRICT Act, the Secretary must identify and deter, or otherwise mitigate, defined technologies from those six nations that the Secretary determines poses “an undue or unacceptable risk.” Though Section 5(b) lists the source materials and analysis the Secretary can consider in making this determination, the Act does not provide the criteria used in making the determination. The phrase “undue or unacceptable risk” appears 12 times in the bill, but none of those appearances define what that term means. No guidance is given as to what technological features or actions meet that definition, only possible outcomes. Conservative Republicans have expressed concerns that the Act may give expansive powers subject to abuse by members of the executive branch. Providing definitions of what technological features and actions pose an undue or unacceptable risk might assuage those valid concerns. Definition and guidance would also give affected parties clear grounds to challenge the Secretary’s determination, bolstering the argument that the RESTRICT Act provides for due process in a way the other bills do not.
Politically, the decision to empower the Secretary of Commerce may prove problematic. The current Secretary of Commerce has seemingly not been able to comply with President Biden’s Executive Order 14034, dated June 9, 2021. This EO required Secretary Raimondo to make recommendations to the national security advisor on steps to take regarding unauthorized access to personal data (TikTok sharing with the CCP) within 120 days; and to make executive and legislative recommendations within 180 days. It seems that these reports have not been produced and are now well overdue. In early March Secretary Raimondo expressed her political concern that banning TikTok would lead to losing voters in the 18-35 age group, a consideration that is not typically made in the national security space, and certainly not when deciding whether to comply with an executive order.
Once the Secretary determines what technologies present an undue and unacceptable risk, the Secretary identifies the risk and refers it to the President. The text states, “[T]he President may take such action as the President considers appropriate to compel divestment of, or otherwise mitigate the risk.” The phrase “otherwise mitigate the risk” is quite broad authority, and might contemplate banning technology, but it is unclear what actions the President might take. This concern matches the previous concern about the potential for expansive actions that were not specifically contemplated by Congress. Furthermore, the CFIUS (Committee on Foreign Investment in the United States) authorizing statute gives the President the power to order divestment. The territorial overlap between Treasury and Commerce on divestment is addressed, but it might cause confusion amongst bureaucrats and affected parties.
Section 7 attempts to limit some of the authority given to the executive branch by allowing Congress to produce joint resolutions when they disagree with the Secretary’s decision to either designate a technology as an unacceptable risk or remove the designation of unacceptable risk from a technology. This power seems to act as a veto of executive actions, and the joint resolution undoes the designation decisions made by the Secretary.
The RESTRICT Act contains a criminal penalty section that has received attention from detractors of the bill. Section 11(c)(1) sets out a fine of not more than one million dollars, or prison time of not more than 20 years. Those criminal penalties are not unique to the RESTRICT Act. The language is verbatim taken from the penalty in the IEEPA statute found in 50 U.S.C. 1705(c), making the RESTRICT Act level with the intent in President Trump’s Executive Orders.
The RESTRICT Act will be a more durable and effective way to ban TikTok and other technologies that undermine American national security. It will almost certainly hold up better under judicial scrutiny than the other TikTok bills. But by empowering an unwilling Secretary of Commerce, and by letting critical decision-making criteria go undefined, the bill will face some difficult political battles in its current form. Some strategic compromises in drafting that tighten key operative provisions to provide clearer guidelines for the designation of “undue and unacceptable risk” can allay some of the concerns about the potential for the RESTRICT Act to be abused. The RESTRICT Act provides a framework for enduring legislation that can effectively block technology that undermines American national security, with room to accommodate well-founded concerns from conservatives by tactically limiting some powers and defining more precisely just which risks run afoul of the law. These modest changes may be enough to give Americans the ban they want.