April 19, 2023
The Honorable Charles Schumer
322 Hart Senate Office Building
Washington, DC 20510

The Honorable Mitch McConnell
S-230, The Capitol
Washington, DC 20510

The Honorable Maria Cantwell
254 Russell Senate Office Building
Washington, DC 20510

The Honorable Ted Cruz
512 Dirksen Senate Office Building
Washington, DC 20510

Majority Leader Schumer, Minority Leader McConnell, Chairwoman Cantwell, and Ranking
Member Cruz:
We, the undersigned organization, write in opposition to S. 686, the “Restricting the Emergenceof Security Threats that Risk Information and Communications Technology Act,” or the“RESTRICT Act.”1 The RESTRICT Act aims at information and communications (ICTs)
technologies like TikTok that are considered a threat to the United States.
Section 3 authorizes the Secretary of Commerce to take action against any individual or entity
who makes a “covered transaction” in information and communications technologies that could
represent “an undue or unacceptable risk” to the technology products in the United States, thedigital economy, the results of or the integrity of elections, or through coercive or criminal acts
designed to benefit a foreign adversary. The very definition of a “foreign adversary” is alsobroad, as the Secretary of Commerce has the power to add countries to the list of foreign
adversaries without consulting Congress.
The definition of a “covered transaction” is very broad and includes any transaction from any
company or group that is merely “subject to the jurisdiction, or organized under the laws, of aforeign adversary.” Considering that the online marketplace is vast and complex, the RESTRICTAct will affect all online transactions routed through these “foreign adversary” countries. The
scope of the act is enormous and may allow the administrative state to issue regulations affecting
telecommunications, cryptocurrencies, press freedoms, and the use of and access to the Internet
itself.
Section 11 creates several new criminal penalties that carry up to 20 years in prison and up to $1
million in fines and costly civil penalties and potential forfeiture of property. The relevant
section states, “It shall be unlawful for a person to violate, attempt to violate, conspire to violate,or cause a violation of any regulation, order, direction, mitigation measure, prohibition, or otherauthorization or directive issued under this Act.” This language is concerningly broad and fails toprovide fair notice.
These criminal provisions are extremely troubling and dangerous for a number of reasons. First,
nearly all of them, even those ironically called “specific unlawful acts,” are extraordinarily
1

RESTRICT Act, S. 686, 118th Congress (2023), available at https://www.congress.gov/bill/118thcongress/senate-bill/686.

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vague. They would punish the violation, attempted violation, or conspiracy to violate aregulation or order that has yet to be conceived or drafted and does not even currently exist. The
Constitution requires notice in criminal statutes so that the public will know what conduct may
render them liable. The Supreme Court has held that a statute criminalizing “loitering” provided
notice that was constitutionally insufficient because it did not specify what conduct constituted“loitering.”2 In this bill, the criminal provisions are even less clear. The regulations that this bill
makes it a crime to violate do not even exist yet and so no conduct is specified at all. This isunfair to the public who must have notice of what a crime is and is constitutionally questionableat best.
Second, it constitutes a massive delegation of criminal lawmaking authority to the administrativestate. There has been renewed skepticism of the administrative state and abuses of power overthe past several years. There have been several legislative efforts to reassert congressional power
on a variety of issues, ranging from war powers to emergency powers to trade. Even later thisyear, Congress is expected to consider major reforms to how agencies interact with technology
companies through various surveillance authorities.
Unfortunately, Congress has a proclivity for governing by crisis as it responds to real orperceived threats. This practice often leads to the enactment of poorly crafted public policy thaterodes fundamental constitutional rights. Administrative regulations are also issued in a processthat is less public than Congressional lawmaking. The notice deficiencies described above arealso worsened because this bill exempts the administrative process under this statute fromsections of the Administrative Procedures Act that ensure notice and public comment prior torulemakings. This administrative delegation is also concerning because each new President, oreven each new Secretary of Commerce, may issue new criminal rules on this issue, providing a
potentially inconsistent and constantly changing landscape of regulations, the violation of whichcarry a 20-year prison term.
Third, even the “specific unlawful acts” that are, in fact, specified are extraordinarily harsh orentirely unnecessary. One is a 20-year term in federal prison for noncompliance with a“reporting or recordkeeping” requirement. Twenty years in prison for a paperwork violation isextremely severe and would only exacerbate our nation’s mass incarceration. Additionally,making a false statement to the Government is criminalized, but this exact act is alreadycriminalized in numerous other places in federal law. 3 This new criminalization will only worsen
the trial penalty, incentivize prosecutors to pile on charges, and coerce people, including
innocent people, into guilty pleas.
Finally, the RESTRICT Act also includes an alarming expansion of federal civil asset forfeiture.
Federal civil asset forfeiture laws flip the presumption of innocence on its head by requiring theperson from whom property is seized to prove that it was unconnected to criminal activity. Given
this incredibly unfair standard and the fact that law enforcement can keep a huge percentage ofthe proceeds of forfeited items, it is unsurprising that it has been well documented that civil asset
forfeiture is ripe for abuse.

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3

City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
E.g., 18 U.S.C. § 1001.

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The RESTRICT Act is far more expansive and encompassing than its supporters admit. Weagree with the House Financial Services Committee, which recently noted, “The RESTRICT Act
is using TikTok as a smokescreen for the largest expansion of executive power since [theInternational Emergency Economic Powers Act].” 4 We hope that the Senate Committee on
Commerce, Science, and Transportation will consider these overcriminalization concerns as it
approaches any action on the RESTRICT Act.
Please feel free to contact Jason Pye of the Due Process Institute at jason@idueprocess.org orNathan Pysno of NACDL at npysno@nacdl.org with any questions.

Sincerely,Due Process InstituteNational Association of Criminal Defense Lawyers
Defending Rights and Dissent
Electronic Frontier Foundation
Fair Trials
Fight for the Future
Freedom of the Press Foundation
FreedomWorks
The Project for Privacy and Surveillance Accountability
Protect the 1st
Quincy Institute for Responsible Statecraft
Restore the Fourth
S.T.O.P. - Surveillance Technology Oversight Project
Taxpayers Protection Alliance

4See House Financial Services Committee (@FinancialCmte), Twitter (Mar. 27, 2023),
https://twitter.com/FinancialCmte/status/1640409547532652544.

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