CAPE GIRARDEAU, Missouri & CERRITOS, California. (OIC) Read in on March 7th, 2023, the United States Senate introduced the first revision of the RESTRICT Act, which disguises itself as a TikTok ban. While a TikTok ban, even if operated by Chinese tech giant ByteDance, would censor the internet for private citizens, the contents of the bill masquerades various bans, including but not limited to, VPNs and other traffic proxying methods, Freedom of Information Act (FOIA) requests, and checks and balances. Furthermore, it’s broad scope and grammatical choices lead to an uncertain future not just for U.S. citizens but potentially anyone who has any traffic with the U.S.
The FOIA evasion
The Freedom of Information Act, or FOIA, is a measure put in place by the United States government to allow their citizens to be properly informed as to what’s going on in the country.
The basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society.
foia.gov
However, Sec. 12(b) in Senate Bill 686 suggests that this bill is exempt from FOIA.
Actions taken by the Secretary under this Act shall not be subject to sections 551, 553 through 559, and 701 through 707 of title 5, United States Code.
Section 12(b), Senate Bill 686, 118th Congress
Furthermore, Section 15(f)(2) doubles down on the idea that FOIA is inapplicable to this bill, stating
Any information submitted to the Federal Government by a party to a covered transaction in accordance with this Act, as well as any information the Federal Government may create relating to review of the covered transaction, is exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the “Freedom of Information Act”).
Section 15(f)(2), Senate Bill 686, 118th Congress
With the statement that anything outlawed by this bill is considered exempt from FOIA, it adds difficulty in information leaving the federal government such as what services are restricted or outright blocked, bills that may enter the House of Representatives and the Senate, and actors in the scope of a given bill.
Removing accountability
The RESTRICT Act, in addition to the federal government exempting itself from FOIA acts, the bills further reduces accountability by exempting itself by one of the landmark Supreme Court cases, Marbury v Madison, stating
Notwithstanding any other provision of law, actions taken by the President and the Secretary, and the findings of the President and the Secretary, under this Act shall not be subject to administrative review or judicial review in any Federal court, except as otherwise provided in this section.
Section 12(b), Senate Bill 686, 118th Congress
The inevitable underground internet traffic tunneling
For most people, a virtual private network, or VPN, would be used to mask your physical location to make it appear as though you’re located somewhere else. After all, that’s what most VPN ads you see online say. You might use a VPN to watch a streaming service that isn’t accessible in your country or to get access to media that isn’t accessible in your country. Should this bill have been just a TikTok ban, a VPN is likely something you would use to get around it. However, a whole section in the proposed bill is dedicated to punishments for both users of VPNs and VPN providers.
No person may engage in any transaction or take any other action with intent to evade the provisions of this Act, or any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued thereunder.
Section 11(a)(2)(F), Senate Bill 686, 118th Congress
While the bill suggests the ban may be exclusive to this act, if not already banning traffic tunneling methods like VPNs or SSH tunneling, sets the foundation for such a ban. Furthermore, the punishments put in place to serve as a deterrent are not only extreme but could likely also be considered a violation of the 8th Amendment to the United States Constitution, outlawing cruel and unusual punishments.
The bill has recommended penalties for both civil and criminal offenses, of which the determination of which is gray. As for civil penalties, they recommend a fine of up to $250,000 in addition to the mitigation measure removed.
(b) Civil penalties.—The Secretary may impose the following civil penalties on a person for each violation by that person of this Act or any regulation, order, direction, mitigation measure, prohibition, or other authorization issued under this Act:
(1) A fine of not more than $250,000 or an amount that is twice the value of the transaction that is the basis of the violation with respect to which the penalty is imposed, whichever is greater.
(2) Revocation of any mitigation measure or authorization issued under this Act to the person.
Section 11(b), Senate Bill 686, 118th Congress
Criminal offenses, however, set a maximum fine for $1,000,000 and/or up to a 20 year prison sentence.
A person who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids or abets in the commission of an unlawful act described in subsection (a) shall, upon conviction, be fined not more than $1,000,000, or if a natural person, may be imprisoned for not more than 20 years, or both.
Section 11(c)(1), Senate Bill 686, 118th Congress.
Even scarier, both civil and criminal violations have a forfeiture policy put in place. For civil violations, any property related to a violation is subject to forfeiture
Any property, real or personal, tangible or intangible, used or intended to be used, in any manner, to commit or facilitate a violation or attempted violation described in paragraph (1) shall be subject to forfeiture to the United States.
Any property, real or personal, tangible or intangible, constituting or traceable to the gross proceeds taken, obtained, or retained, in connection with or as a result of a violation or attempted violation described in paragraph (1) shall be subject to forfeiture to the United States.
Section 11(c)(2)(i) and 11(c)(2)(ii), Senate Bill 686, 118th Congress.
Criminally, what would be subject to forfeiture is, in some cases, considerably more free to those found guilty, stating
any property, real or personal, tangible or intangible, used or intended to be used, in any manner, to commit or facilitate the violation or attempted violation of paragraph (1); and
any property, real or personal, tangible or intangible, constituting or traceable to the gross proceeds taken, obtained, or retained, in connection with or as a result of the violation.
Section 11(c)(3)(i) & 11(c)(3)(ii), Senate Bill 686, 118th Congress.
But just how broad?
Reading through the bill, you’ll find multiple quotations of varying relevancy, including several quotations that are extremely irrelevant and serves as a deterrent to the contents of the RESTRICT Act. One of the easiest examples to point to for this would be a direct reference to the Atomic Energy Act of 1954.
any restricted data, as defined in section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014).
Section 12(a)(2)(B), Senate Bill 686, 118th Congress.
Furthermore, a quick Control + F for “quantum” discovers that there are four citations to quantum computing with very little relevance to the actual bill.
information and communications technology products and services integral to
(B) quantum key distribution;
(C) quantum communications;
(D) quantum computing;
(E) post-quantum cryptography;
Section 5(a)(7), subsections B-E, Senate Bill 686, 118th Congress.
A future with this bill
Suppose that this bill were to pass, it would set the precedent for further restrictions being put in place artificially to censor the internet as a whole, potentially creating a similar situation to China’s Great Firewall and North Korea’s pseudo-internet. The provisions for enforcement upon private citizens and businesses alike are similar to current Russian censorship provisions. Given the bill is one of the first of its kind, it’s difficult to tell where the U.S. will go with this. In late 2017, we saw a similar bill by the FTC regarding the removal of Net Neutrality, which was officially repealed in June 2018, granting both ISPs and the U.S. government finer control over the internet. As such, we’ve already seen the begin of a slippery slope begin with a censored internet. It becomes a matter of figuring out the degree of censorship, which time will tell but we can speculate as to what it might look for.
The current political climate around the bill is even more concerning. Several Senators think that the bill may pass the Senate by unanimous consent – they wouldn’t even take a roll-call vote on it. Given the current Republican control of the House – and the Biden-aligned Democratic members, as the Biden administration supports the RESTRICT Act and a Democrat (Mark Warner, Virginia) introduced it – it would be likely to pass the house and not be vetoed by the Biden administration. There is some political hope – Rand Paul (R-Kentucky) opposed Senator Josh Hawley’s direct TikTok ban (separate from the RESTRICT Act) and is likely to oppose the RESTRICT Act itself. But one senator isn’t enough – at least 41% of the Senate, or 51% of the House, or the Biden administration, would need to oppose the measure to block it from becoming law.
The OIC’s position
The Open Information Collective categorically opposes the RESTRICT Act (S.686, 118th) and any other similar measures. In particular, we oppose any attempt to censor public forums for information, prohibit the usage of VPNs or other privacy-preserving tools, or reduce transparency and government accountability through exemptions to the Freedom of Information Act. We are appalled that the Biden administration and the United States Congress are even considering such a measure, and we encourage every possible advocacy-based action aimed at stopping this bill.
Amy Parker