WASHINGTON — Congress is considering a new law that would give the executive branch significant new powers to review and restrict public access to applications, web and communication services connected to foreign countries.
The RESTRICT Act, introduced earlier this month by a bipartisan team of senators including Kirsten E. Gillibrand, D-N.Y., would afford the secretary of commerce and the president powers to review technology, web services and computer applications for connections to identified bad actors.
The text of the bill identifies the countries of China, Cuba, Iran, North Korea, Russia and the Maduro administration of Venezuela as foreign adversaries, but authorizes the secretary to expand that list to include “any foreign government or regime” identified as hostile to the U.S.
Technology developed and maintained by government agencies of these countries, corporations within these countries or controlled by citizens of these countries is subject to review if it has more than 1 million annual active U.S.-based users or has sold more than 1 million units in the U.S.
It comes as many in leadership plan for ways to ban the social media video platform TikTok, which is partially owned by a Chinese company. TikTok’s CEO recently spoke to Congress about his company’s privacy and data management practices. Many leaders in Congress have expressed concerns that TikTok is subject to influence from the Chinese government, and may provide information about U.S. users to the Chinese government. TikTok has denied any such risk, and has launched an effort to partner with U.S.-based company Oracle to isolate all American data in Texas.
On Thursday, Sen. Gillibrand said she supports the RESTRICT Act precisely because she is concerned about China.
“I’m a mom. I’m very concerned about China taking all of the data that they can scrape off of TikTok to use against our children, our families and our communities, should we ever become in an adversarial posture against China,” she said.
The commerce secretary is meant to determine if the technology or services being reviewed poses an “undue or unacceptable risk” of sabotaging U.S. infrastructure, damaging the digitized economy, interfering with the results of a federal election, or “otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons.”
The text of the legislation also says the secretary, with input from various executive agencies, should weigh if the technology or service can coerce or lead to action from a foreign adversary that undermines democratic processes or steers policy or regulatory decisions.
If a risk is identified, the secretary of commerce, along with the remaining cabinet leadership and the entire executive arm of the government, may take whatever actions necessary to prevent the dissemination of the technological service, removing it from the American market and seizing any U.S.-based assets related to its operation.
All sorts of technology, services and applications are subject to these reviews. Essentially any computer program, mobile app and web-based service is subject to review by the secretary.
Additionally, advanced technological developments like quantum computing, robotics, synthetic biotechnology, e-commerce technologies and artificial intelligence platforms operating in the U.S. will be made subject to review if they have any connection to the identified countries.
Digital rights advocates, people who push for a free and open internet, have expressed very public concern about the implications of the RESTRICT Act. It establishes criminal penalties for anyone who “willfully” violates an order issued to bar access to a service, with fines of up to $1 million or imprisonment of up to 20 years. Civil penalties for an unintentional violation can lead to fines of up to $250,000, or twice the amount of the transaction that led to the violation.
Sen. Gillibrand said she and the bipartisan team of senators who authored the RESTRICT Act, which has the support of President Joseph R. Biden, believes the executive branch needs to be the decision-maker in the day-to-day security analyses the bill outlines.
“We wrote the bill that way because Congress would be terrible at it,” she said. “Knowing what type of technology was undermining privacy of our children, and being able to assess them across the board for national security reasons, we need an agency to do that, in collaboration with the CIA and NSA and intelligence services.”
Sen. Gillibrand has written a bill that would create a similar structure, called the Data Protection Act, which she’s been working on since 2020. That bill would establish a Data Protection Agency, whose job would be to regulate and enforce federal data privacy laws. But it doesn’t call for many specific federal data privacy regulations, only setting some baseline data collection and use guidelines and banning any attempt to reidentify users from data that has been scrubbed of identifying factors.
Sen. Gillibrand said she would like to see more data privacy laws passed at the federal level like her own Data Protection Act.
“I just don’t have the bipartisan support yet for it, although I’m working on getting it,” she said.
For now, the RESTRICT Act has bipartisan support in Congress, although it hasn’t come to the floor for a full vote and has no companion in the House of Representatives. The White House has signaled that President Biden will sign the bill into law should it reach his desk, as it would provide a legislatively approved pathway for him to fulfill a promise to ban TikTok, and continue to ban any other online services it identifies as a risk.
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