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Yet Another Surveillance Act
A Look at the Restrict Act and How It Compares to the Patriot Act
Right after journalist Matt Taibbi testified about free speech in front of the Congressional Select Subcommittee on the Weaponization of the Federal Government, an agent from the Internal Revenue Service (IRS) showed up at his house, and this has raised concerns about how the federal government, and currently the Biden administration, is utilizing its bureaucracy for the purpose of intimidating, censoring, or eliminating political dissention. With the Twitter Files and censorship through social media platforms, the U.S. Post Office’s targeting of right-wing posts, Department of Homeland Security (DHS) bulletins about those opposing Covid-19 measures or the 2020 presidential election results, enforcement of disinformation policies, the Federal Bureau of Investigation (FBI) document outlining how extremists use the Betsy Ross and Gadsden flags and support the 2nd Amendment and admire the American Revolution; the message seems to be clear. We are not to engage in any activity that contradicts what the government deems as acceptable conduct or protest the Biden administration, or you might become the victim of an IRS audit or an unwarranted FBI or DHS investigation. Independence and thinking outside of the box of the carefully-constructed narrative is not welcome, and whistleblowers and journalists who think of exposing the truth should reconsider (think about what is happening to Julian Assange and Edward Snowden). Of course, we still have the illusion of free speech in this country, but Republicans and Democrats both seem interested in banning the social media application of TikTok, thus bringing us closer to the same type of Chinese censorship and surveillance that our government claims to be protecting us from.
The federal government has proposed a few different versions of bills to outright forbid the use of TikTok (bills include the Data Act and the Anti-Social CCP Act), arguing that the parent company, ByteDance, has links to the Chinese Communist Party (CCP) and is collecting data, which can then be transferred to Beijing. In addition to clear violations of the First Amendment, the prohibition would be preventing young people from being free to express themselves or learn about the world around them through short videos (millions of Americans use the platform), and what about other applications owned by a Chinese company, like WeChat? What if Facebook were to do business with a company in China? Should we then ban the platform? Would we go on a hunt for any website that could potentially have links to foreign adversaries?
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Well, the proposed Senate Bill S.686, or the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act (simply known as the Restrict Act), would do just that. The bill was introduced by Senator Mark Warner and cosponsored by notable others, such as John Thune (SD), Joe Manchin (WV), Kirsten Gillibrand (NY), Susan Collins (ME), Mitt Romney (UT), Richard Blumenthal (CT), Chuck Grassley (IA), Lindsey Graham (SC), and Angus King (ME).
In fact, the bipartisan Restrict Act does not even mention the word TikTok, and it mainly gives the government broad authority to target any company that is deemed as a national security threat, especially including those from China, Russia, Iran, North Korea, Cuba, and Venezuela. The bill would grant the secretary of commerce the 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,” as long as the bureaucrat deemed activity to be “an undue or unacceptable risk” to the nation. This seems like there would be the potential for a lot of arbitrary discretion.
Although the bill is currently facing an uphill battle in the Senate, due to a coalition of opposition from pro-Trump or non-establishment Republicans, such as Rand Paul, and progressive Democrats, such as Alexandria Ocasio-Cortez and Jamaal Bowman. Having opposition in the House of Representatives could mean that even if it passed in the Senate, it might not make it to President Joe Biden, who would most assuredly sign it into law. Doing a typical political gymnastics routine, Lindsey Graham denied being a cosponsor when confronted by Fox News host Jesse Watters, but as Watters pointed out, his name was, indeed, on the bill. It appears that either Graham was lying about supporting the bill, or he did not realize that he officially supported it (maybe one of his staffers signed him up without his knowledge?). Either way, what is it about this bill that has many in an uproar?
Officially, the purpose of it is to protect Americans and the national security of the United States (where have we heard that before?) from technological threats of foreign adversaries; and the power to determine these threats and punish them would be granted, without congressional oversight, to the president-appointed Committee of Foreign Investment (CFIUS), which would consist of the secretary of commerce, secretary of defense, attorney general, and head of Homeland Security. CFIUS would be able to target any business, organization, individual, or government deemed as a threat, thus allowing for it to utilize law enforcement agents to search through, ban, and punish owners of “e-commerce sites, payment technologies, online marketplaces, biotechnology, synthetic biology, post-quantum cryptology, quantum key distribution (security keys used to encrypt and decrypt messages), and more” (according to Wendi Strauch Mahoney). The bill goes even further by stating, “no person may cause or aid, abet, counsel, command, induce, procure, permit, or approve the doing of any act prohibited by, or the omission of any act required by any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under, this Act” and “no person may engage in any transaction or take any other action with intent to evade the provisions of this Act.”
Therefore, it appears that the government is able to punish individual users online for just about anything, thus causing a chilling effect for ordinary Americans, and it would prevent the free expression of ideas on platforms that end up becoming banned or restricted. The First Amendment is just a suggestion to the federal government, so it should not come as any surprise if it ultimately passes (or if some form of it becomes issued as an executive order, thus bypassing Congress).
If that were not bad enough, the investigations under this bill would be exempt from the Freedom of Information Act (FOIA), meaning that there would be virtually no accountability for the government to target anything and everything on the internet. Nothing would prevent the government from pursuing political dissidents, and individuals would be unable to challenge the government in court, being that the investigations would be conducted in secret. In fact, the wording of the bill specifically prohibits judicial review, and any information gathered during the investigations could be utilized for surveillance (or used in secret against individuals or businesses in criminal procedures, in a violation of due process), thus turning this bill into another potential domestic spying tool.
The bill even includes gag orders to prevent companies or individuals, who are being unconstitutionally searched, from being able to discuss the investigation to their clients or the public. As mentioned, the Biden administration has already been taking advantage of the ability to target those who oppose the official narrative and censor information that is inconvenient, so we should not expect that bureaucrats would stick to the intended meaning of the bill and its amendments, as we constantly see an exponential growth in the powers and roles of government agencies.
The bill allows for the government to fine individuals up to $1,000,000, and people found guilty of downloading or accessing material or websites that the government arbitrarily defines as threatening to the government could see prison time of up to twenty years. Some even suggest that the bill would outlaw virtual private network (VPNs), which if true, would essentially take away individuals’ ability to have privacy online. It could even hinder cryptocurrency transactions, which the government would enjoy doing (being that it is in the process of setting up its own centralized digital currency to be forced on Americans). It might even allow the government to shut down the websites of anyone who speaks out against the approved narrative, under the fake justification that the dissident is connected with a foreign power in some capacity. If nothing else, this bill would cause a chilling effect, as average citizens would not want to find out the hard way that their actions could potentially land them in prison or incur excessive fines.
The Patriot Act, which was enacted under the George W. Bush administration, set up the precedent of an unrestricted surveillance state, and now the Restrict Act may become the next-era version of this unconstitutional law, if passed. Under the Patriot Act, the National Security Agency (NSA) and FBI are allowed to bypass the First and Fourth Amendments by basing inquiries on financial records, medical histories, internet searches, bookstore purchases, or travel patterns; and the federal government only needs to show that its investigation is related to terrorism or foreign intelligence. The law eliminated the need for the Fourth Amendment requirement of probable cause, or even the fairly new made-up concept of reasonable suspicion of a crime; and what makes the Patriot Act different is the fact that targets do not even have to be foreign actors (the lone wolf provision allows for this), meaning that any American can become swept up in an investigation. In fact, an American citizen only needs to be within three hops (the erroneously-named Freedom Act changed it to two) of the foreign target to be subject to full surveillance; and almost every American could be linked to a so-called terrorist if he or she were investigated based on conversations with individuals, who have calls with other individuals, who then have calls with yet more individuals, and so on. The act essentially gives the bureaucracy almost unlimited powers to target Americans for any reason at all, as long as it can argue that it is doing so for the purposes of a terrorist hunt (this is not difficult to do when there is no judicial review of the process).
Even when the government puts in some effort to get a warrant, Foreign Intelligence Surveillance Act (FISA) courts (FISC) rarely, if ever, deny the requests; and having a secret court that rubber stamps warrants for the content of people’s personal data does not meet the Fourth Amendment requirements of probable cause. In most cases, the government does not even need to inform those who are subject to the search, and federal agents are even permitted to take documents and photographs without the person’s knowledge (the agent could be at the wrong house and still steal someone’s property without accountability). A company or individual subject to a search or seizure, including libraries, medical offices, and telecommunications companies, can also be served with a gag order (a direct violation of the First Amendment), as discussed with the Restrict Act.
If this were not bad enough, the government is permitted to use wiretaps and searches for domestic criminal cases when the government claims that intelligence is a “significant purpose” of an investigation. In cases of obtaining transactional or address information (“pen register/trap and trace”), or metadata, warrants only need to be “relevant” to a criminal investigation, and the judge is not permitted to deny the request, nor is the agent required to stay within that judge’s jurisdiction (the warrant applies anywhere within the entire United States). In a similar fashion to our founding fathers’ objections to writs of assistance issued by officials of the British Empire, the Patriot Act allows federal agents to obtain a blank warrant (with no specifics on the who, what, why, when, and where) from a judge, which can then be filled out by the agent. For internet investigations, the government has interpreted the metadata collection to include the subject line and recipients of emails and the website addresses and time stamps of online searches, meaning that the government can gain access to your personal information and piece together your life events without a proper warrant.
As discussed, the Twitter Files have revealed the deep partnerships between social media companies and the government in censoring information, but the government, under the Patriot Act, launched the PRISM program in 2007 and has been working with the telecommunication corporations (with companies sometimes creating covert entrances to their users’ information) for the purposes of procuring and retaining bulk data (metadata and content, depending on the needs). This means that the records of thousands of Americans, who had nothing to do with terrorist actions, could be collected under a single investigation. Even if the information gathered is metadata, we know that a lot can be learned from this type of search. Although, the Freedom Act put in place the requirement of a FISA warrant to be able to continue collecting this information, as opposed to no warrants and bulk collection previously, we should be able to understand that this “improvement” is actually not much better.
If the Patriot Act obliterates the First (gag orders and investigations based on individuals’ preferences), Fourth (unreasonable searches and seizures), Fifth (property seized without due process), Sixth (not being informed of searches and seizures), and Ninth (privacy rights) Amendments; just imagine what the Restrict Act will be interpreted to do. While the country is occupied with the unreasonable and politically-motivated thirty-four felony charges against Donald Trump for allegedly manipulating tax and campaign records, this act is going largely unnoticed. Will Americans wake up to the realities of the totalitarian surveillance state, or will we continue to ignore the blatant violations of the Constitution?
Thank you for reading, and please check out my book, The Global Bully, and website.
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