America's best bet for banning TikTok would have terrible side effects

• As talk of a TikTok ban builds, the leading legislation with bipartisan support is the RESTRICT Act.
• Critics warn that the bill gives POTUS far-reaching new powers, and paves the way for more government surveillance of the Internet.
• Groups like the ACLU say that it could undermine free speech and the right to privacy in America.

One of the very few things that Democrats and Republicans agree on is that something has to be done about TikTok, owing to data privacy concerns and the viral video app's deep ties to China. Some lawmakers have gone so far as to push for a ban of TikTok entirely. 

While there's been a lot of disagreement about the best way to actually accomplish such a thing, one bill in particular has gained a lot of steam.  The RESTRICT act —short for "Restricting the Emergence of Security Threats that Risk Information and Communications Technology —   introduced by Democratic Sen. Mark Warner of Virginia and Republican Sen. John Thune of South Dakota, has become the leading legislation for a potential TikTok ban. 

The White House supports the bill, as do influential groups on both sides of the aisle. 

What the bill's boosters like is that it doesn't single out any single app like TikTok, or any single country, like China. It would give the Department of Commerce the authority to identify and block any transaction that involves "foreign adversaries," which would include China, Cuba, North Korea, Iran, Russia, and Venezuela. Its supporters say that approach is more flexible, with applications beyond TikTok.

On the other hand, the RESTRICT act faces a growing backlash from critics including civil rights groups like the ACLU and digital rights organizations like the Electronic Frontier Foundation, who charge that the language of the bill overreaches and presents a risk to American freedom of speech and the right to privacy. 

Some Republicans have also charged that the bill grants too much authority to the federal government, putting new powers in the hands of President Joe Biden.

Here's why the RESTRICT Act has some people so worried — and what the experts say might be a better approach.

Critics worry the RESTRICT Act would give the government too much power

If the RESTRICT Act passes, it would ultimately be up to President Joe Biden whether or not TikTok and its China-based parent company ByteDance would be able to list their apps on Apple's US app store, experts said. 

The legislation seeks to go around a set of Cold War-era measures called the Berman amendments, which were intended to protect the exchange of informational materials between America and foreign countries that might be adversaries to the US.

"The Berman amendments are a statement to the rest of the world of the importance of the free flow of information around the world, and that free democratic societies do not block the flow of information into their country," said David Greene, an attorney with the Electronic Frontier Foundation, a digital rights group. 

Decades later, the Berman amendments presented an insurmountable challenge to President Donald Trump's 2020 attempt to ban downloads of TikTok, Greene said. 

Circumventing legislation as well-settled and time-tested as the Berman Amendments is likely to carry a new set of risks, the experts said. Beyond giving POTUS the final say, the bill also doesn't require the Commerce Department to share the reasoning behind its decision to block or ban any app or transaction, and sets a very high bar for appealing the process.

"The concerns are valid because this does give the administration pretty broad powers with, with very limited checks," said Matthew Schettenhelm, a Bloomberg analyst.

The legislation carries privacy risks for American citizens

The other major concern is the current draft of the RESTRICT Act is vague, making it hard to assess how far reaching it would be, experts said. 

For example, the bill would criminalize the use of a VPN to access TikTok on servers located outside the US. While the bill's supporters have said that it won't be applied to individual citizens, there's nothing in the current language that ensures  it won't ever happen, experts said. 

Furthermore, it raises questions about how such a law would be enforced. Some, like the ACLU, warn that it could pave the way for more surveillance of the Internet, as the government seeks to find violators of the law. 

"By virtue of the fact that the government can create new crimes, it necessarily means that its power to surveil to identify people who are violating the law expands," said ACLU attorney Ashley Gorski. 

It could also open the door to criminalizing the use of VPNs in the US entirely, said Sarah Philips of digital rights group Fight for the Future. While VPNs have a reputation as being used for nefarious or shady purposes, they're also an invaluable tool for Americans to find abortion services or gender affirming care in states where they're banned or at risk, Phillips said. 

For example, it puts things like using a VPN to find out about abortion services or gender affirming care outside of a state where it's banned at risk, Philips said. 

"These are the kind of nightmare situations that we're talking about if people can't use VPNs," Philips said. "This ban, this bill are clearly bad ideas, and the worst possible outcomes are really scary."

A better solution to the TikTok problem is data privacy legislation

The main point, experts say, is that none of the currently introduced legislation, including the RESTRICT Act, would actually solve the concerns the government has about TikTok and its ties to China. 

The type of data TikTok collects is similar to what Facebook or Twitter collect from its users. So even if TikTok is banned, that data is still out there, with very few limitations on its collection and use, said Bloomberg's Schettenhelm. 

And it's actually easier than we think for a foreign government to buy that information from data brokers, said EFF's Greene. What would actually solve the concerns about the Chinese government getting US user data is comprehensive data privacy legislation, he and other experts said.

"What we're saying is that if you're concerned about the Chinese government getting user data from TikTok," Greene said. "Then a better thing to do would be to pass laws that would regulate how much data all the companies, not just TikTok could collect and then retain and then use in the first place."