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TikTok is just one app in a vast commercial surveillance ecosystem that has been allowed to grow unencumbered over the past two decades due to the lack of a U.S. privacy law. Even if the U.S. bans TikTok, millions of apps would continue to collect the most intimate details about us and profit off of them. The endless web of data brokers who buy and sell data would continue to exist, and foreign adversaries such as China could still obtain Americans’ personal data by simply purchasing it from data brokers on the open market. This is a data privacy crisis with serious national security implications and it is past time for Congress to act.
Don’t Just Ban One, Regulate Them All: Enact Comprehensive Privacy Legislation
Comprehensive privacy legislation such as the American Data Privacy and Protection Act (“ADPPA”) would go much farther to protect Americans’ personal data from bad foreign actors than a ban on one app. Here, we breakdown how the provisions of ADPPA would address the national security concerns being raised by lawmakers this week:
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Simply forcing a ban or divestiture on TikTok in the U.S. without broader privacy rules will not solve the core national security concerns of data collection and exploitation by foreign governments nor will it do anything to change the data collection practices by the millions of other apps whose business practices pose similar national security issues. The lack of a U.S. privacy law means that the Chinese government can purchase a vast array of Americans’ personal data, either from the new owners of TikTok or from any one of the U.S. companies collecting and selling the same data points from users. These concerns would be more effectively addressed by the passage of a strong, comprehensive U.S. privacy law.
Would the RESTRICT Act—a.k.a. the TikTok ban bill—criminalize the use of VPNs? That's the rumor floating around about the legislation, which was introduced in the Senate by Sen. Mark Warner (D–Va.) earlier this month. Warner's office has said his bill wouldn't do this… but its broad language leaves room for doubt. And the act is still insanely far-reaching and could have a huge range of deleterious effects, even if it doesn't criminalize people using a VPN to access TikTok.
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Warner's "Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act," or the RESTRICT Act, doesn't specifically mention TikTok or ByteDance. Rather, it would grant the U.S. secretary of commerce the broad power to "identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate … any risk arising from any covered transaction by any person, or with respect to any property" that the secretary determines to pose "an undue or unacceptable risk" in several different areas. These include federal elections, "information and communications technology products and services," and "critical infrastructure or digital economy," as well as "coercive or criminal activities by a foreign adversary that are designed to undermine democratic processes and institutions or steer 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."
The language describing who the RESTRICT ACT applies to is confusing at best. The commerce secretary would be authorized to take steps to address risks posed by "any covered transaction by any person," right? So what counts as a covered transaction? The bill states that this means "a transaction in which an entity described in subparagraph (B) has any interest." Entities described in subparagraph B are a "foreign adversary; an entity subject to the jurisdiction of, or organized under the laws of, a foreign adversary; and an entity owned, directed, or controlled by" either of these. Foreign adversaries can be "any foreign government or regime" that the secretary deems a national security threat.
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As we’ll explain, the proposal—at least as currently written—raises troubling and far‐reaching concerns for the First Amendment, international commerce, technology, privacy, and separation of powers.
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As currently drafted, the RESTRICT Act likely runs afoul of the First Amendment, erodes Americans’ privacy protections, and would open the door to not only more misguided protectionism, but also government investigations, fines, and even imprisonment of Americans who engage in common online activities deemed too “risky” by the executive branch alone. Regardless of whether the act becomes law, that it quickly garnered 25 Senate co‐sponsors is a troubling indication that even the most egregiously bad legislation can attract a crowd these days if it’s sold as countering the “China threat.” And it shows that the risks to Americans’ wealth, safety, and security come not from China alone.
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We've explained our opposition to the RESTRICT Act and urged everyone who agrees to take action against it. But we've also been asked to address some of the concerns raised by others. We do that here in this post.
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EFF opposes the bill, and encourages you to reach out to your representatives to ask them not to pass it. Our reasons for opposition are primarily that this bill is being used as a cudgel to protect data from foreign adversaries, but under our current data privacy laws, there are many domestic adversaries engaged in manipulative and invasive data collection as well. Separately, handing relatively unchecked power over to the executive branch to make determinations about what sort of information technologies and technology services are allowed to enter the U.S. is dangerous. If Congress is concerned about foreign powers collecting our data, it should focus on comprehensive consumer data privacy legislation that will have a real impact, and protect our data no matter what platform it’s on—TikTok, Facebook, Twitter, or anywhere else that profits from our private information. That’s why EFF supports such consumer data privacy legislation. Foreign adversaries won't be able to get our data from social media companies if the social media companies aren't allowed to collect, retain, and sell it in the first place.
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... Although the primary targets of this legislation are companies like Tik-Tok, the language of the bill could potentially be used to block or disrupt cryptocurrency transactions and, in extreme cases, block Americans’ access to open source tools or protocols like Bitcoin. ...
As well they should.EFF is opposing the bill:
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