Don’t sacrifice the Fourth Amendment to ban TikTok  

Imagine posting content to Facebook or Twitter critical of the federal government, only to have agents knocking on your door a few days later, demanding your computer, and claim that you helped promote a foreign narrative. The officials come armed only with subpoenas, not warrants, and you find that the courts are powerless to stop them. You must turn over your computer or face hundreds of thousands, or millions, of dollars in fines.  

There is a reason that scenarios like this do not happen: the Fourth Amendment guarantees freedom from warrantless and unreasonable searches and seizures. But in Congress’s frenzy to ban the Chinese app TikTok, it risks sacrificing this freedom by giving the federal government the power to ban nearly any app or social media platform deemed a national security risk. 

Members of Congress are in a rush to ban TikTok after its CEO, Shou Zi Chew, testified before the House Energy and Commerce Committee last month. Several weeks before the testimony, a bipartisan group of senators introduced the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act as a “comprehensive, risk-based approach that proactively tackles sources of potentially dangerous technology before they gain a foothold in America.” The legislation has the backing of President Biden.  

The RESTRICT Act would criminalize online content while authorizing the government to punish anyone representing “an undue or unacceptable risk” to national security. More than this, though, it would allow officials to create new crimes, establish new penalties, and investigate any alleged violation of the act (and the crimes they just created) independent of any judicial oversight.  

Concerns over the RESTRICT Act aside, there are well-founded reasons to be concerned about the risks posed by foreign-owned apps, particularly those owned by Chinese companies, such as TikTok. These apps can collect highly confidential or sensitive information such as a user’s location, IP address, search history, call and text history, and usage of other apps. TikTok also knows the contents of files, devices’ clipboards, and typing patterns, and can track people even when they do not have accounts with the social media platform. And TikTok employees in China have access to all the data, which is concerning given the relationship of private companies to the Chinese Communist Party.  

While banning TikTok may be the excuse to pass the act, the real purpose of the act appears to be something entirely different. Rather than protecting Americans from the risk that highly confidential personal information may be transferred to a hostile nation, senators appear to be focused on preventing the perceived wrongs of the 2016 and 2020 presidential elections. Instead of mentioning data collection and transfer, the act seeks to prevent “interfering in, or altering the result … of a federal election … [and] coercive or criminal activities … that are designed to undermine democratic processes.”    

Because of its focus on elections and undermining democratic institutions, the RESTRICT Act would encourage the Biden administration’s penchant for claiming that political speech represents a risk to national security. The administration has claimed that hostile foreign actors, domestic extremists, and those wishing to promote violence do so by expressing concerns about COVID mitigation measures, sharing concerns about election fraud, and more.  

The act would take us back to the colonial era abuses that inspired the American revolution and key provisions of the Bill of Rights. To enforce tariffs and other taxes imposed by Parliament upon the colonies, the British government used writs of assistance. The writs were a type of general search warrant that allowed customs officials “to search any house for smuggled goods without specifying either the house or the goods.” Officials’ use of writs led both to James Otis’s famous “a man’s home is his castle” speech along with spurring the first congress to adopt the Fourth Amendment’s protection against unreasonable searches and seizures.  

The act does not just resurrect writs of assistance, though. It strips courts of any meaningful involvement in the process by exempting their actions and findings from “administrative review [and] judicial review in any Federal court.” If an official, then, decided that a particular message—say, a claim that election fraud occurred—represented a substantial risk to national security, he could launch an investigation into those posting or sharing the message on social media regardless of whether that platform is owned by a foreign adversary.  

TikTok and other technology companies owned by a hostile nation may represent a threat to America’s national security. The RESTRICT Act, though, does not confront the risk of surveillance through access to user data. It focuses, instead, on the 2016 presidential election and fallout from the 2020 election, defines unacceptable content for social media platforms, and ignores the Fourth Amendment. Congress should not resurrect writs of assistance simply because of some vague risk to national security and should reject the RESTRICT Act as an anathema to American values. 

Jonathon Hauenschild is policy counsel for Lincoln Network.