In the wake of recent high-profile congressional hearings involving the CEO of TikTok, politicians and pundits are in a moral panic about the social media app and its Chinese owner, ByteDance. Instead of just focusing on TikTok or app-related privacy issues, however, some in Congress want to go further.

Much further.

In particular, a bipartisan group of senators, reportedly with the White House’s input and backing, are proposing to delegate expansive new “national security” powers to the executive branch so that it can investigate and restrict American citizens’ transactions that involve both certain foreign “adversary” nations, including but not limited to China, and a wide range of information and communications technology (ICT) products and services. 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.

What’s Actually in the RESTRICT Act?

The “Restricting the Emergence of Security Threats that Risk Information and Communications Technology” (RESTRICT Act) can be broken down into five main parts:

• ICT “transactions” authority. The bill authorizes and instructs the Department of Commerce to “identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate” any risk arising from a covered transaction between U.S. individuals/​firms and “covered entities” from “adversary countries” that “poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons.” The bill broadly defines “transactions” to include “any acquisition, importation, transfer, installation, dealing in, or use of any information and communications technology product or service, including ongoing activities such as managed services, data transmission, software updates, repairs, or the provision of data hosting services, or a class of such transactions.” These include risks of election interference, activities that “undermine democratic processes and institutions or steer policy” and anything that “otherwise poses an undue or unacceptable risk to national security.” Because almost any communications technology can be misused to meddle in foreign domestic affairs, any disfavored platform can be seen to present these risks. It also broadly defines a “covered entity” to include not merely state actors but essentially any group subject to the jurisdiction of a “foreign adversary” country or owned, directed or controlled by a person subject to that jurisdiction. The department may, but is not required to, publish an explanation for its determinations.

• “Holdings” authority. The bill also requires the secretary of commerce to identify covered “holdings” (defined as “any interest, stock, security, share, partnership interest, LLC interest, or any participation, right, or other equivalent, however designated and of any character”) that pose a risk to national security. Covered holdings are defined broadly to include any holding in which a group subject to the jurisdiction of a “foreign adversary” has direct or indirect “power… to determine, direct, or decide important matters affecting an entity.” Commerce must also refer such risks to the president who is then given 30 days to take “such action as the president considers appropriate to compel divestment of, or otherwise mitigate the risk associated with” such a holding.

• “Adversary countries” authority. The bill defines “adversary countries” to include China, Cuba, Iran, North Korea, Russia, and Venezuela, but also authorizes the Commerce Department to designate new “adversary countries” that have a “long-term pattern” or “serious instances of conduct significantly adverse to the national security of the United States or the security and safety of United States persons.” Commerce must notify Congress before making (or removing) this designation, and Congress can reject the agency’s decision by passing a joint (both chambers) resolution of disapproval.

• Investigation and enforcement authority. In carrying out its authorities, Commerce may “require any party to a transaction or holding under review or investigation… to furnish under oath, in the form of reports or otherwise, at any time as may be required by [Commerce], complete information relative to any act, transaction, or holding” covered by the law. Commerce or another agency may also “conduct investigations of violations of any authorization, order, mitigation measure, regulation, or prohibition issued” under the law. During these investigations, federal officials may search or seize covered imports; search or obtain books and records of “any person” implicated by the law; and/​or require those persons to appear and testify before the agency. Violations of the law (e.g., engaging in prohibited transactions or refusing to cooperate with an investigation) may be subject to both civil and criminal penalties, which include fines up to $1 million, imprisonment up to 20 years, and forfeiture of assets.

• Limited judicial review. The law expressly limits judicial review of agency and presidential determinations and actions under the Administrative Procedure Act and most other provisions of U.S. law. In particular, courts may disturb only actions taken by Commerce or the president that the plaintiff has demonstrated are “unconstitutional or in patent violation of a clear and mandatory statutory command.” During this litigation, the government may file sensitive, privileged, or classified information that will not be given to the party suing the government.

As of today, the bill has 25 co-sponsors: 13 Republicans, 11 Democrats, and 1 Independent.

First Amendment Concerns

As with many proposed TikTok bans, the RESTRICT Act would raise serious First Amendment concerns for TikTok’s American consumers. In some ways, the RESTRICT Act is even more concerning in this regard than a direct TikTok ban as it would likely impact far more apps than just TikTok. Its broad language could even limit consumers’ access to European telemedicine resources, certain popular technology hardware, and even using virtual private networks (VPNs).

The RESTRICT Act provides the executive branch with significant authority to restrict or ban apps associated with adversarial countries. In the case of TikTok, this will have a significant impact on users’ speech by way of government intervention. Given its impact on speech, the government would have to show that the action is narrowly tailored to national security concerns and does not burden speech more than necessary to address these concerns. The government is unlikely to succeed in this regard were the proposal to be challenged on First Amendment grounds.

In banning TikTok, the government is eliminating a forum used by millions of Americans to express themselves. Creators have used TikTok to entertain viewers, non-profits have highlighted their causes and work, and struggling small businesses have found new audiences that are interested in their products or services. Just as individuals choose to express themselves in different ways in an analog era, different social media platforms provide different opportunities for expression. So, while there are competing platforms like Instagram’s Reels and YouTube’s Shorts, removing users’ access to TikTok as their chosen platform would be like the government banning the New York Times and arguing it was not a First Amendment violation because the Washington Post exists.

During the Trump administration, there were previous attempts to ban TikTok and other apps with links to China. The RESTRICT App attempts to correct some of the procedural concerns related to these actions but it fails to resolve their First Amendment concerns.

Privacy

The RESTRICT Act also raises serious privacy concerns in relation to its potential reach, breadth, and penalties—not merely for entities and individuals located in “adversary” jurisdictions, but also American citizens. For example, the law authorizes the executive branch to “investigate” and “mitigate” “any risk” arising from “covered transactions” that would inevitably involve many U.S. persons—transactions that include not just the usual security-related ICT hardware items but also software (including updates) and “data transmission” (which could mean emails, direct messages, and so on).

And the executive branch may take such action any time it deems the transaction at issue to “pose[ ] an undue or unacceptable risk to the national security of the United States or the safety of United States persons.”

Given this language and the severe penalties for engaging in prohibited conduct, it’s no surprise that numerous technology and privacy experts—see, for example, here, here, and here—have expressed alarm over these provisions and their implications.

International Trade and Investment Implications

As currently drafted, the RESTRICT Act has enormous potential to expand the president’s already-significant ability to impose, without congressional input or oversight, new trade and investment restrictions on supposed national security grounds. In particular, the RESTRICT Act would likely allow Commerce to investigate and block a wide range of ICT goods, services, and investments involving—even indirectly—anyone in China or subject to Chinese laws (or the laws of another “adversary” nation). The “undue or unacceptable risk” justifying any such determinations and subsequent government actions would effectively be left to Commerce’s discretion and face very little scrutiny or pushback from Congress, the courts, or the public—especially since the agency is not even required to publish its findings. Thus, this law would represent an almost-blank check from Congress to the president to disrupt tech-related trade and investment involving “adversaries” (which, of course, Commerce can also expand to include other nations unless both chambers of Congress vote otherwise).

One needn’t simply imagine how this broad delegation of Congress’s constitutional authority over international commerce might be abused in the future. Recent history provides an easy guide.

In 2018, President Trump invoked Section 232 of the Trade Expansion Act of 1962 to impose “national security” tariffs on a wide range of steel and aluminum products—including items like rebar with no legitimate national security nexus—imported from virtually every country in the world, including longstanding allies. The law authorizes the executive branch to “adjust” any imports threatening national security, as found in a report from the Commerce Department.

The tariffs were imposed over the objection of the administration’s own defense secretary, who noted in a memorandum at the time, that “U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production.” The requisite Commerce Department reports disregarded this input and instead recommended broad tariffs—coincidentally just what the president wanted—based on questionable, thinly sourced grounds.

Trump’s tariffs triggered predictable retaliation from trading partners—ensnaring unrelated industries into the back and forth—raised prices for U.S. consumers, while doing virtually nothing to bolster the domestic steel and aluminum industries. The uncertainty surrounding Trump’s exercise of these and other tariff powers also deterred U.S. investment, thus lowering economic growth.

Given these harms, numerous members of Congress expressed opposition to the tariffs, and numerous lawsuits were filed. However, even modest legislative reforms have been blocked by partisanship, politics, and gridlock, and U.S. courts have repeatedly deferred to the executive branch’s national security justifications. Offered the opportunity to turn the page on the tariffs, the Biden administration has instead defended them in court and in dispute settlement at the World Trade Organization (WTO). They remain in place today.

As currently drafted, the RESTRICT Act would double-down on Section 232’s problematic approach to U.S. trade and investment policy, but with even fewer checks on the executive branch’s actions. Commerce, for example, wouldn’t even have to write a report before new sanctions are imposed, and judicial review of any such actions is expressly curtailed. Such actions would not only harm the American consumers and companies directly involved in the transactions and investments at issue, but also impose broader economic harms by granting the executive branch carte blanche authority to meddle with international commerce. Uncertainty surrounding the exercise or potential abuse of this power would likely dampen investment, thus lowering productivity, jobs, and wages over the long term.

Despite the proven benefits of international trade and investment, American policymakers have increasingly justified politically motivated, economically illiterate protectionism on flimsy national security grounds. The RESTRICT Act would undoubtedly encourage more such behavior.

Conclusion

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.