03.29.2023 0

S.686 could be used to censor any website in America, foreign or domestic, not just TikTok

By Robert Romano

S.686, the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act or the appropriately titled “RESTRICT Act” could be used to censor any website in America, not just TikTok.

The legislation would authorize the Secretary of Commerce to “identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate, including by negotiating, entering into, or imposing, and enforcing any mitigation measure to address any risk arising from any covered transaction by any person, or with respect to any property, subject to the jurisdiction of the United States that the Secretary determines… poses an undue or unacceptable risk to the national security of the United States…”

Read that again. It says “by any person, or with respect to any property, subject to the jurisdiction of the United States…” That could be anything.

Or any website that is determined to be “interfering in, or altering the result or reported result of a Federal election, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission…”

Meaning, it would potentially become illegal to question the “reported result” of any federal election, since questioning the results could potentially “interfere” with public acceptance of the result. How else does one “interfere” with the “reported result” of a federal election?

Or any website that opposes a war with a foreign adversary by “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…” since merely advocating against the war would “favor” the foreign adversary’s objectives.

By definition, this would prohibit anti-war activities on the internet.

Censorship in the U.S. during wartime is not at all unprecedented. Nor is it unique to the U.S., since war against adversaries foreign and domesitc is almost always the pretext for censorship.

World War I, World War II, the Korean War and the Vietnam War all had various measures employed to control speech and punish wrongthink. And it’s always arbitrary. The Espionage Act of 1917, 18 U.S.C. Sec. 2388, for example very similarly prohibits anti-war reports or even to simply oppose the draft “willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military … [or] wilfully obstruct the recruitment or enlistment service of the United States.”

This looks like an attempt to codify the so-called “bad tendency” test that was used to prosecute individuals under the Espionage Act. The Supreme Court upheld this test in the 1919 Debs v. United States decision which found “natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind…” Other decisions would also uphold provisions of the Espionage Act until the Supreme Court outlined the “imminent danger” test in Brandburg v. Ohio in 1969, finding that even advocacy of overthrowing the government could be protected speech if they were not immediately linked to violent actions to do so.

Brandeburg stated “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Arguably, the RESTRICT Act goes even further, since the standard would become anything in “favor… the strategic objectives of a foreign adversary….” not only prohibiting those who are not even anti-war per se, but favor a diplomatic approach to resolving foreign disputes.

So, if you were a news or non-profit organization that opposed, say, a thermonuclear war and advocated for peace or nuclear arms reduction treaties to avert an existential threat to humanity, it could be prohibited because those also might “favor… the strategic objectives of a foreign adversary,” even if you believed that such treaties might actually bolster U.S. national security.

All that would be needed would be for the Secretary of Commerce, in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission, to determine otherwise.

Obviously, this all directly violates the First Amendment’s prohibition that “Congress shall make no law…. abridging the freedom of speech, or of the press.”

The website does not even need to be owned directly by a foreign government, like China, or one of its organs, like the Chinese Communist Party. Instead, a controlling interest, or “covered holding” is defined as “regardless of how or when such holding was or will be obtained or otherwise come to have been held, a controlling holding held, directly or indirectly, in an ICTS covered holding entity by… a foreign adversary…”

Read that again. It states “directly or indirectly,” which opens the door for non-state-owned holdings.

But then it goes further, providing for targeting “any other holding, the structure of which is designed or intended to evade or circumvent the application of this Act, subject to regulations prescribed by the Secretary.” That could be anything.

The legislation covers “wireless local area networks; mobile networks; satellite payloads; satellite operations and control; cable access points; wireline access points; core networking systems; long-, short-, and back-haul networks; or edge computer platforms; internet hosting services; cloud-based or distributed computing and data storage; machine learning, predictive analytics, and data science products and services, including those involving the provision of services to assist a party utilize, manage, or maintain open-source software; managed services; content delivery services; internet- or network-enabled sensors, webcams, end-point surveillance or monitoring devices, modems and home networking devices… unmanned vehicles, including drones and other aerials systems, autonomous or semi-autonomous vehicles, or any other product or service integral to the provision, maintenance, or management of such products or services… desktop applications; mobile applications; gaming applications; payment applications; web-based applications; information and communications technology products and services integral to… artificial intelligence and machine learning; quantum key distribution; quantum communications; quantum computing; post-quantum cryptography; autonomous systems; advanced robotics; biotechnology; synthetic biology; computational biology; and e-commerce technology and services, including any electronic techniques for accomplishing business transactions, online retail, internet-enabled logistics, internet-enabled payment technology, and online marketplaces” if such websites, applications or platforms have more than 1 million users or has sold more than 1 million products in the U.S.

Which is actually quite easy to do if you host a platform. Say, you host an e-commerce multivendor platform that has 1,000 vendors who each have 1,000 customers annually. Each one of them is relatively small, but in the aggregate, that adds up to more than a million products sold.

It pretty much covers the entire internet.

But where the rubber meets the road will simply be on web hosts, especially the large ones that small businesses depend on, which easily have more than 1 million customers. So, even if the intent were to censor a smaller entity, the pressure could simply instead be put on the company’s web host to remove the content or else be dubbed a foreign traitor and lose everything.

Naturally, the bill has strong bipartisan support and is supported by President Joe Biden. And why not? It could be used to censor almost anything, including Trump’s 2020 election challenge or even Trump’s 2016 candidacy, which the Justice Department argued in the Oct. 2016 Foreign Intelligence Surveillance Act (FISA) warrant applications was favored by Russia.

In any event, if the purpose of the legislation was to simply target TikTok, China and the Chinese Communist Party, why does it in fact potentially cover every single website in America? In fact, the legislation is not narrowly tailored to forcing divestiture of TikTok by Chinese entities. Why not? Maybe banning TikTok is simply a pretext to censoring everything.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

Copyright © 2008-2024 Americans for Limited Government