As with many political moves, S. 686, aka the “RESTRICT” Act term is an acronym. It stands for “Restricting the Emergence of Security Threats that Risk Information and Communications Technology” – and behind its veil of “protection,” within its behemoth text, one can find a literal threat, coming from U.S. politicians.
The key portion is Section Three, and analysis of those lines reveals shocking ambiguities, jaw-dropping claims to arbitrary power over online communications, and stunning claims to shut down not only websites, Internet Service Providers, and the digital transfer of words, but also to ban the transfer of currency via digital communication - i.e., cryptocurrency.
Note, as we begin, that the reference to “Secretary” in S. 686 is to the Secretary of Commerce – and we know how much fun it is searching for THAT position in the U.S. Constitution:
"(a) In general The Secretary, in consultation with the relevant executive department and agency heads, is authorized to and shall take action to identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate, including by negotiating, entering into, or imposing, and enforcing any mitigation measure to address any risk arising from any covered transaction by any person, or with respect to any property, subject to the jurisdiction of the United States that the Secretary determines—
(1) poses an undue or unacceptable risk of—
(A) sabotage or subversion of the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of information and communications technology products and services in the United States…"
This claims total power over the making and distribution, etc., of communications tech, which already has been subverted by "back doors" that the NSA has utilized for years, and, as Elon Musk’s recent revelation of the Twitter source code shows, subverted by the feds being able to “interfere with the algorithm” – in other words, suppress Twitter reach and to shadow-ban – anytime they want.
More about how the RESTRICT Act threatens your freedom. The “Secretary” can “mitigate” communications, political speech, and financial transactions if he or she arbitrarily claims such activity could cause:
"(B) catastrophic effects on the security or resilience of the critical infrastructure or digital economy of the United States..."
None of those terms is defined, and this is a claim by the bill sponsors that the Commerce Sec can make up the definitions as he or she goes, totally ad hoc, and then act in any way he or she wants – no trial, not even any accusation of a crime against another person. The “Secretary” also can unilaterally shut anyone down for what the Secretary determines is:
"(C) interfering in, or altering the result or reported result of a Federal election, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission; or
(D) coercive or criminal activities by a foreign adversary that are designed to undermine democratic processes and institutions or steer policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States, as determined in coordination with the Attorney General, the Director of National Intelligence, the Secretary of Treasury, and the Federal Election Commission; or
(2) otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons."
All of the above claims the power to shut down speech. And the next section hits crypto transactions -- allowing the feds to take ANY action to "mitigate":
"Not later than 180 days after the date of enactment of this Act, the Secretary, in consultation with the relevant executive department and agency heads, shall review any transaction described in subsection (a) to—
(A) determine, not later than 180 days after the date on which the Secretary initiates such review, if such transaction poses an undue or unacceptable risk under subsection (a)(2) and qualifies as a covered transaction; and
(B) with respect to a transaction found to pose an undue or unacceptable risk and qualify as a covered transaction, determine whether—
(i) the covered transaction should be prohibited; or
(ii) any other action should be taken to mitigate the effects of the covered transaction."
ANY other action.
One need not exercise a great deal of imagination to conclude that this not only threatens all of us with legal and gun-backed action by the feds should the Commerce Secretary arbitrarily determine that our communication of digital info – including digital commerce – is not to his or her liking.
Likewise, one need not expend a great deal of energy to realize that this runs contrary to the First Amendment, the Fifth Amendment, the Sixth Amendment, and the Eighth Amendment.
But there’s an added constitutional consideration, beyond the others and beyond the sheer affront to freedom this S. 686 represents.
As Rand Paul noted in his speech against Hawley’s “Anti-TikTok” bill, in Article One, Section Nine, Clause Three, the Constitution contains within it a prohibition against what are called “Bills of Attainder,” wherein the legislative branch passes a statute punishing a single individual. A Bill of Attainder specifically is understood as the legislature imposing a death penalty, but, as Cornell Law notes, the Founders applied the prohibition in a broader sense, against milder forms of punishment dealt to people or businesses without proper judicial branch procedure.
As a result, one can see that, like Josh Hawley’s “Anti-TikTok” proposal would have allowed the feds to exercise a Bill of Attainder against TikTok, S. 686 would allow the Secretary of Commerce to single out any business to be shut down. This not only means that S. 686 is a de-facto Bill of Attainder, it means that it is an open-ended one, allowing a ceaseless stream of punishments and “mitigations” from the Commerce Secretary against anyone, for virtually any online activity.
Realizing the danger and blatant disregard for the Constitution that this represents, one also can see that other so-called “regulatory” agencies that are granted arbitrary power to penalize people for, say, breaching “water standards” imposed by the EPA, or not conforming to “labeling” mandates by the USDA – those, too, would reveal that the legislation passed to “grant” those agencies such power to punish are, in fact, large-scale Bills of Attainder through exercise of arbitrary bureaucratic power.
Bans of “gas stoves,” “regulations” of truckers, and a wide array of so-called “standards” that the feds mandate – all are enforced through this extrajudicial means, and not only represent mis-readings of the Interstate Commerce Clause of the Constitution, but also stand as the bureaucratic muscle of Bills of Attainder.
Both Rand Paul’s speech about Hawley’s Anti-TikTok Bill, and this S. 686 show us a much wider landscape of federal wrongdoing. Some of it already has been with us for decades, some is waiting to pounce -- if the RESTRICT Act is passed.
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Not content to just ban gas stoves, the Biden administration is now trying to ban incandescent light bulbs... https://t.co/h97QvmdIQH— MRCTV (@mrctv) April 3, 2023