A Bipartisan Blunder
The idea of banning TikTok seems to have suddenly become bipartisan, which is reason enough to pause and question. The legislative mechanism through which some lawmakers hope to accomplish the ban is South Dakota Republican John Thune's and Virginia Democrat Mark Warner’s RESTRICT Act, which boasts eleven Republican and ten Democrat cosponsors.
Here is the legal thrust of the bill:
[I]f the President determines that the covered holding poses an undue or unacceptable risk to the national security of the United States or the security and safety of United States persons, the President may take such action as the President considers appropriate to compel divestment of, or otherwise mitigate the risk associated with, such covered holding to the full extent the covered holding is subject to the jurisdiction of the United States.
If the bill is signed into law, the president would have the authority, through the secretary of Commerce, to compel divestment of U.S. operations, assets, property, tangible or intangible assets, and any data derived from the use of products related to entities identified by the drafted legislation as “covered holdings.”
These covered holdings could be any foreign adversary, an entity subject to the jurisdiction of a foreign adversary, an entity owned, directed, or controlled by a foreign adversary, or an entity subject to the jurisdiction of a foreign adversary.
The foreign adversaries listed in the bill are: China, Hong Kong, Macao, Cuba, Iran, North Korea, Russia, and Venezuela.
In addition, the president would have the authority to compel divestment of "any other holding, the structure of which is designed or intended to evade or circumvent the application of this Act."
This legal action would not just apply to corporations such as ByteDance. The entities that the president would have the authority to identify as covered holdings are firms, labor unions, fraternal or social organizations, partnerships, trusts, or joint ventures. In other words, the bill grants this authority to the president with respect to any "group, subgroup, or other association or organization whether or not organized for profit."
Of course, the White House is all over it. It’s a power grab through and through, and it’s not just the libertarians who are concerned. Tucker Carlson brought attention to the bill last night, saying, “This isn’t about banning TikTok. This is about introducing flat-out totalitarianism into our system.”
The bill is currently sitting in the Senate’s commerce, science, and transportation committee; so far, five of the thirteen Republican members in that committee have cosponsored the bill, including Shelley Moore Capito of West Virginia, Deb Fischer of Nebraska, Jerry Moran of Kansas, and Dan Sullivan of Alaska.
Banning TikTok would be an unquestionable good for the nation, but the RESTRICT Act is simply not about banning TikTok. The app’s name is not mentioned once in the legislation, but its proponents are pitching it as if the bill is more about protecting the "private" data of American citizens than about covering more administrative bases for the Patriot Act.
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The Heritage Foundation published a report today titled, “Winning the New Cold War: A Plan for Countering China.” In it, the authors prescribe a TikTok ban through the Committee on Foreign Investment in the United States (CFIUS), created by President Ford in 1975. Heritage suggests that
Congress should direct CFIUS to continuously review the activities of all Chinese mobile app companies and recommend specific apps to be banned on national security grounds.
There must be a way to accomplish the political goal without opening a Pandora’s box. There is no worse way to communicate that government action can sometimes be used for good than pushing legislation with obscenely broad language that is only tangentially related to a policy proposal enjoying time in the spotlight. TikTok has already been called digital crack cocaine, and the RESTRICT Act would give the director of national intelligence the same kind of hit.