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Defending Rights & Dissent Statement on Indictment of African People’s Socialist Party MembersApril 25, 2023
Aside from being Chinese in origin, Congress can’t quite make up its mind about what, precisely, the problem is with TikTok. Is it a deficit of censorship, or an overabundance of it? Is the problem actually with TikTok, or is with social media more generally? In a hearing with TikTok CEO Shou Zi Chew as the witness, some members of Congress brought up heart wrenching stories of children gone too far down the rabbit hole to the dark side of the internet as evidence that TikTok should engage in more censorship, particularly around topics relating to drugs (mark off fentanyl on your congressional hearing bingo cards), eating disorders, and suicide. Other members of Congress voiced concerns that TikTok was engaging in algorithmic manipulation to scale back content related to Tiananmen Square and oppression of the Uyghur people. Representative Gus Bilirakis (R-FL) complained that Chinese children received STEM education TikToks while US children were dying from the Blackout Challenge. In a telling opening statement, Rep. Cathy McMorris Rodgers (R-WA) compared the lack of regulation around TikTok to letting the Soviet Union produce Saturday morning cartoons.
Then there’s the spying angle. Even if Congress can’t quite diagnose the problem with TikTok, there seems to be broad agreement that we should be very afraid of Chinese technology. Members of Congress engaged in pointed lines of questioning about how closely TikTok’s parent company collaborates with the Chinese government. CEO Chew fared poorly in the congressional hearing, dodging questions about everything from whether he has personal assets located in China to what data TikTok actually turns over to the Chinese government. Members of Congress seemed unpersuaded by Chew’s pitch for Project Texas, a TikTok initiative that would house the data of US persons domestically. That Congress chose to dedicate time to these hearings reflects broader unease over our entanglements with China.
Several states are one step ahead of Congress. In the past several weeks, multiple TikTok bills made progress through state bodies. Last week, the Florida Board of Governors decided to ban the use of TikTok and several other Chinese and Russian apps on university devices and WiFi. On Thursday, a state-level TikTok ban hit the governor’s desk in Montana. While the Montana bill doesn’t pass logistical muster – Internet providers claim they can’t ban TikTok only in Montana, and Apple and Google say they can’t divvy up the App Store by state – the bill evinces an appetite to scapegoat Chinese technology. Even the New York Times attributed the step to “an intensifying technological cold war.”
At its usual creeping pace, Congress, too, has taken up this new cold war. Of the TikTok bills introduced, so far the RESTRICT Act has emerged as a front runner. A quarter of the Senate, split evenly between Democrats and Republicans, has cosponsored the bill, and it has garnered a statement of support from the White House. But this is a bill with serious issues – and a narrow view of the actual global landscape of surveillance.
While better named than the previously proposed ANTI-SOCIAL CCP Act, the RESTRICT Act shares the ANTI-SOCIAL CCP Act’s Sinophobia problem. The bill grants broad powers for the Secretary of Commerce to take steps to mitigate American use of technology that “poses an undue or unacceptable risk to the national security of the United States or the safety of US persons.” But while the rhetorical focus has been on China and TikTok, the bill places tech associated with many “foreign adversaries” under the microscope. The bill names China, Cuba, Iran, North Korea, Russia, and Venezuela. The list lays bare the political drive behind the bill. The adversary list is more about reinforcing American hegemony than about specific concerns related to spyware. The bill further grants the Secretary of Commerce the ability to designate any nation a foreign adversary, placing the onus on Congress to pass a joint resolution should they disagree with a designation.
The problems with the bill don’t stop there. The RESTRICT Act is broadly worded enough that some have read the bill as having the potential to attach criminal penalties for use of VPNs. While one of the bill’s sponsors disputes this interpretation, reading the bill as a VPN ban registers as creative but not impossible. While the RESTRICT Act might not explicitly touch VPNs, it does authorize the Secretary of Commerce to investigate a variety of technologies including internet hosting services, cloud computing, telecommunications services, webcams, and content delivery services (such as TikTok). The bill covers its bases with futuristic tech; the Secretary of Commerce is also authorized to investigate post-quantum cryptography and artificial intelligence.
It’s an expansive bill, but one largely divorced from any broader prohibition against spying on Americans. While much has been made of the Chinese National Intelligence Law, which requires that Chinese businesses cooperate covertly with national intelligence agencies, the discourse around the RESTRICT Act has little to say about digital privacy more broadly. It’s a gaping blind spot.
Every month or so, a quiet scandal breaks out involving a US intelligence agency. This month, journalists found that ICE compelled the release of records from an elementary school, a college health center, and an abortion provider. Last month, we found out that the DEA secretly paid informants to collect airline records, document who paid for bus tickets in cash, and search packages. So many federal, state, and local entities buy their way around the Fourth Amendment that an entire cottage industry exists to aggregate your data and market it to intelligence and law enforcement agencies. Then there’s the problem of FISA Section 702 and EO 12333 searches. While neither authority is intended for use against Americans, agencies can search incidentally collected data for information about US persons. The landscape of American surveillance draws in data collected, offered, or compelled from private companies.
That’s to say nothing of foreign surveillance by friendly governments, on which the RESTRICT Act is silent. The Israeli government approves the export of Pegasus spyware to other governments around the world. The tech has been used to monitor dissents, journalists, and opposition politicians. American journalists working abroad have found themselves under Pegasus surveillance. Other countries that would never make the Secretary of Commerce adversary list routinely spy on Americans.
All the anxiety over TikTok misses the bigger picture. While Congress is busy wrestling Chinese technology out of the hands of American youth, companies from the US and around the world are collecting our data and marketing it to law enforcement. We should use this moment of concern to pass privacy legislation that defends all of us against the encroaches of any government. Limiting which data companies are allowed to collect protects us from all governments, whether it’s China’s or our own.
Want to do something about it? Tell Congress to pass privacy legislation instead of banning TikTok! Take action here.