The RESTRICT Act’s Durable Framework for Addressing Technological Threats

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.

The TikTok ban bills: are they unconstitutional bills of attainder?

By Lawrence Muir

President of Broughton House

TikTok encourages the app’s short videos to be looped on repeat.  While that may make the app more enjoyable for users, as well as more addictive, TikTok hits on repeat is a trend that Americans should want to break.  Reversing this TikTok trend should start in the courtroom, where TikTok is undefeated against federal attempts to ban its use.  Americans need Congress to produce one tight, constitutionally ironclad bill that will ban, not just TikTok, but other technologies that undermine American national security.  Though clean, limited, and targeted legislation, Senator Hawley’s “No TikTok on United States Devices Act” and Senator Rubio’s ANTI-SOCIAL CCP Act have potential Constitutional defects that may be unable to survive legal challenges, including a violation of the Constitutional provision against bills of attainder.  The generally preferable targeted legislation may, ironically, be the bills’ judicial undoing. 

     The Bill of Attainder Clause of Article I, Section 9, clause 3 of the United States Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.”  As stated by the Second Circuit in Consolidated Edison v. Pataki, “A constitutionally proscribed bill of attainder is ‘a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.’”  Further, “a statute can be a bill of attainder only if (1) it ‘determines guilt and inflicts punishment,’ (2) ‘upon an identifiable individual,’ and (3) ‘without provision of the protections of a judicial trial.’”

     Senator Hawley’s bill does single out TikTok, even specifically naming TikTok in the title (line 4) and by exclusively naming ByteDance and TikTok in the bill.  Senator Rubio’s bill also exclusively applies to ByteDance and TikTok.  It’s inarguable that both bills single out ByteDance and TikTok.  The question that remains is whether the company can be an “individual”.  The Supreme Court of the United States has not been asked to decide whether corporations are “individuals” in bill of attainder jurisprudence but has applied the law to “private groups” and has stated in dicta it applies to “firms”.  The Second Circuit extended these protections to corporations in the ConEd case and left only the two questions of whether the legislation determined guilt, and whether the legislation inflicted punishment.  We turn to the element of guilt.

     Bills of attainder possess a retrospective focus on guilt, meaning the conduct punished by the new legislation has already occurred.  In TikTok’s case, that conduct has been sharing Americans’ data, communications, and more with the Chinese Communist Party.  No additional facts need to be proven to find ByteDance & TikTok guilty of violating the legislation for the TikTok app has already undermined American national security.  But this legitimate basis for banning TikTok looks different in bill of attainder analysis, because the pre-determination of guilt based on facts that came into evidence prior to the passage of the legislation support TikTok’s argument that the legislation is unconstitutional.  In essence, the legislation is itself the trial, and the verdict has been rendered.  And once found guilty, the only question is whether the legislation also includes punishment.  If a court finds the legislation does punish TikTok, then the law will be deemed to be an unconstitutional bill of attainder.

     Punishment, in the corporate setting, will take an economic or financial form compared to incarceration for individuals.  The Supreme Court has addressed the question of punishment in bill of attainder analysis.  The Supreme Court articulated three factors to guide a court’s determination of whether a statute directed at a named party is punitive: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a [legislative] intent to punish.’”

     The legislation would effectively take TikTok’s property and business when it bans TikTok from American operations.  The legitimate national security goals of the two bills could rebut TikTok’s argument that the bills are punitive in nature.  TikTok has, however, gotten out ahead of this factor by putting forward Project Texas, an effort to address the national security concerns, and which TikTok argues is a less burdensome program that CFIUS could approve and negate the need to ban the app.  Until CFIUS announces a decision on Project Texas, the presence of a potentially-less burdensome proposal in the hands of the federal government works against this legislation.  Finally, the Court would hear evidence of the legislative intent to punish during the debate to pass the two bills.  This editorial will not delve into the history of public comment regarding TikTok.

     Senators Hawley and Rubio should consider two amendments to their bills that would remove the bill of attainder risk.  First, the Senators should broaden the prohibited actors by creating more generalized concerns about hardware and software that share data with foreign governments, create risks of malware, and other identifiable risks to American national security.  This broadening will thereby reduce the specificity of the bill and eliminate the challenge that the bill is aimed at a single, identifiable actor.  Shifting the focus to the technology will make a more durable law.  Further, in debate and in public commentary, begin highlighting the non-punitive functions of the legislation.

     Senators Hawley and Rubio deserve credit for trying to advance narrowly-tailored legislation that improves American national security.  But paradoxically both gentlemen would do better to broaden the scope of their respective bills to not focus exclusively on ByteDance & TikTok.  America will not be safer if the legislation meant to protect against a foreign threat is struck down by the courts.  If Americans want the loop of TikTok legal victories to finally stop playing, it would be wise to pass legislation that is not completely focused on TikTok, and that can survive to be used against the inevitable future threats that will emanate from technologies from China and other nations.