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Many people believe that divided government is a recipe for gridlock, but we believe it can actually present opportunities to accomplish big, bipartisan things. The reality is Senate Democrats and Senate Republicans are teaming up to tackle a wide range of issues. For our part, we have teamed up to take on national security threats from foreign technologies – leading a bipartisan effort to codify a policy that was first implemented by the Trump administration and is now supported by the Biden administration. That’s not a sentence you’ll see very often in print these days.
Over the past several years, information and communications technology products from adversarial nations have established a foothold in American markets. Today, the threat that everyone is talking about is TikTok, with its potential to enable surveillance by the authoritarian Chinese Communist Party or facilitate the spread of malign influence campaigns in the United States. Before TikTok, however, it was Huawei and ZTE, which threatened our nation’s telecommunications networks. Before that, it was Russia’s Kaspersky Lab, which threatened the security of government and corporate devices.
These risks are not going away, and without the tools to address this problem in a holistic way, the federal government is just bailing water from a sinking ship.
While some federal agencies have tried to take action, much of their success has been limited to the narrow confines of each agency’s jurisdiction. Instead of playing Whac-A-Mole, the United States needs to adopt a comprehensive approach to evaluating and mitigating the threats posed by these technology products.
That’s why 10 Democrats and 10 Republicans in the U.S. Senate have come together to propose legislation called the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act or – since everything in Washington has to be an acronym – the RESTRICT Act.
The RESTRICT Act would task the Secretary of Commerce with reviewing information and communication technology products from adversarial states – like China, Russia, and Iran – and allow the Secretary to take appropriate action if products are determined to present a risk to U.S. national security. Notably, this authority would allow the Secretary to go so far as banning a product – or a company, like TikTok – where security risks are especially pronounced.
Additionally, in a world where Congress is constantly playing catch-up when it comes to tech oversight, this bill actually anticipates future threats by covering a number of emerging technologies – including AI products and services, fintech, quantum communications, and e-commerce. Crucially, our framework also requires that the Secretary declassify sufficient information to educate the public on identified threats. For too long, the government has been telling citizens to “just trust us” when it comes to these threats. Particularly when it comes to communications technologies used widely by young people, diverse communities, businesses, and consumers, we have to be more forthcoming on asserted risks.
There are some who have argued that this legislation does not explicitly require a ban of TikTok, and, therefore, it does not go far enough. While it’s true that the RESTRICT Act does not explicitly name any companies, it absolutely sets up a risk-based process by which the Secretary of Commerce could ban TikTok.
Explicitly naming foreign firms in statute – rather than using a broader, risk-based process – would mean setting ourselves up for failure. Legal scholars have also raised significant questions over whether legislation banning a specific company would withstand judicial scrutiny, especially since federal courts have blocked the previous administration’s efforts to explicitly ban TikTok. We’ve also heard concerns from a variety of U.S. business leaders that singling out one company in law would invite foreign retaliation against our own companies and be entirely counterproductive to American interests.
Enter the RESTRICT Act. Our legislation would establish a process informed by the intelligence, ensuring that the Commerce Secretary is paying attention to agencies like the Office of the Director of National Intelligence, Federal Communications Commission, Cybersecurity and Infrastructure Security Agency, and Department of Defense that are – in their own areas of expertise – identifying these emerging threats. This approach is genuinely risk-based, and creates a rule-bound, rather than ad hoc process to prevent it from being copied by nations looking to unfairly target U.S. companies under the guise of national security.
This issue is broader than just TikTok, and we – along with a robust bipartisan coalition of senators – believe that the RESTRICT Act would establish a comprehensive process rooted in objective intelligence assessments and risk analysis to address all the threats posed by foreign technologies from adversarial nations, not simply respond to individual threats as they rear their ugly head.
Democrat Mark Warner represents Virginia in the United States Senate.