4 ms·

The excerpts in that thread do not back up the central claim they make in the first tweet, which is that > It gives the government authority over all forms of

The excerpts in that thread do not back up the central claim they make in the first tweet, which is that > It gives the government authority over all forms of communication domestic or abroad I personally don't think this TikTok panic is justified. The bill grants the executive the authority to designate entites under the jurisdiction of a foreign adversary (like China) as threats to national security and to prohibit transactions with those entities. That seems bad enough; it should be discussed in terms of what it does, and not along sensationalist lines.

rektide 4y ago
On the one hand, using fear to justify colossal incursions by the government into every possible concern has absolutely no place in my heart & I spit at the premise. Fear doesn't justify making an awful bill. Fear didn't justify rescinding American rights broadly for the Patriot Act. Even after that horrible day. It was shit then, it's worse pandering pathetic fear-shit now. But. I agree: > it should be discussed in terms of what it does, and not along sensationalist lines. Both myself and the link I've provided have been remarkably sensationalist, yes. But there's also so many massive escape hatches that give this proposal unlimited blanket power, again and again and again. The start itself is auspiciously broad. > The Secretary ... 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 Off to a brilliantly open start, to pursue not just any potential threat from anyone at all associated with foreigners, but to pursue anything that is in any way even risky. If something "otherwise poses [ed: under not already listed vague dangers] an undue or unacceptable risk to the national security of the United States or the safety of United States persons", and the Secretary of Commerce "determine[s] ... if such transaction poses an undue or unacceptable risk" and if found to be an unnacceptable risk can then determine "any other action [that] should be taken to mitigate the effects of the covered transaction". The Secretary of Commerce has to consult with some other heads of government, but then seemingly can say anything is a risk and determine any course of action on their own in response. Sensationalism ahoy but: the Secretary of Commerce just became the 5th branch of government, nice job everyone. Within the first 438 words of law-making we've created a brand new power to do anything against any threat (so long as it has any link or relationship whatsoever to foreigners aka "covered transactions"). Again, this is all the first law-making section (after S1 Short Title, S2 Definitions), "S3. Addressing Information and Communication Technology Products and Services that Pose Undue or Unacceptable Risk." Now, "S4. Addressing Information and Communication Technology Products and Services Holdings That Post Undue Or Unacceptable Risk", throws a little twist in. This time, the Secretary doesn't have any license to "any other action" they deem over any risk arising from a covered transaction. They instead make recommendations to the president over any covered holding that is of a foreign adversary or anyone who the Secretary says might be related, and who "poses an undue or unacceptable risk to the national security of the United States or the security and safety of United States persons." The president can then do whatever they want: "the President may take such action as the President considers appropriate to compel divestment of, or otherwise mitigate the risk associated with, such covered holding to the full extent the covered holding is subject to the jurisdiction of the United States", with again "otherwise mitigate the risk" standing in as a "whatever the fuck we say" carte-blanche statement, as this Restrict act so continuously unlimitedly keeps handing out to everyone, with no checks in sight. As for how this all goes down? "In carrying out the responsibilities under this Act, the Secretary may establish such rules, regulations, and procedures as the Secretary considers appropriate." So the Secretary can literally make new rules, regulations & procedures on the fly to do anything they want. Hello again 5th Branch. How can the Secretary find stuff out? Oh they can now ask anyone anything anytime. "The Secretary may require any party to a transaction or holding under review or investigation pursuant to this Act to furnish under oath, in the form of reports or otherwise, at any time as may be required by the Secretary, complete information relative to any act, transaction, or holding, subject to the provisions of this Act." There's a whole new class of crimes defined by this Act. There's a whole new "Specific Unlawful Acts" section, finding a variety of ways to make unlawful anything that stands in the way of this act or who does not fully participate or who does not turn over a requested piece of information or who in any way aids anyone who does anything to hinder this act. And in case we haven't built a "specific unlawful act" yet, there's the general unlawful act, "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 other authorization or directive issued under this Act" which just says anything slowing down the Secretary of Commerce in any way whatsoever is illegal, period. The Secretary of Commerce has all the cards. Congress can deny adding a Foreign Adversary or removing one. But the Secretary is sole deteminer of who is acting in any way in concordance with a Foreign Adversary or potentially aiding their cause. There's seemingly no one else in the system here. We've created a super-powered position of unlimited enforcement capabilities, with near-infinite purview. https://www.congress.gov/bill/118th-congress/senate-bill/686/text https://www.congress.gov/bill/118th-congress/senate-bill/686...
- calgarymicro 4y ago
  > but to pursue anything that is in any way even risky. Specific kinds of risk, namely > sabotage or subversion of . . . information and communications technology products and services in the United States; catastrophic effects on the security or resilience of the critical infrastructure; interfering in, or altering the result or reported result of a Federal election; coercive or criminal activities by a foreign adversary; an undue or unacceptable risk to the national security of the United States or the safety of United States persons. You might think it's overbroad (and I do actually), but it's not 'whatever the Secretary wants'. > As for how this all goes down? "In carrying out the responsibilities under this Act, the Secretary may establish such rules, regulations, and procedures as the Secretary considers appropriate." So the Secretary can literally make new rules, regulations & procedures on the fly to do anything they want. Hello again 5th Branch. This is a legal conception in administrative rule making, not carte blanche. This sort of language exists in lots of bills, and courts can and have struck down rules they believe go beyond the scope of a bill (see: WV v. EPA). The general scope of administrative rulemaking is also heavily restricted by the nondelegation doctrine (see DoT vs. AAR as a recent example). > with again "otherwise mitigate the risk" standing in as a "whatever the fuck we say" carte-blanche statement, as this Restrict act so continuously unlimitedly keeps handing out to everyone, with no checks in sight. This 'mitigation' passage is premised on a failure to compel divestment, which makes it pretty clear what is being referred to - efforts to limit access to something that has no US entity to go after. Again, not carte blanch, and courts can and have considered the intent behind legal provisions far less obvious than it is here. > But the Secretary is sole deteminer of who is acting in any way in concordance with a Foreign Adversary or potentially aiding their cause. I will just quote a law dictionary here > in consultation means with the concurrence of the person with whom a delegating authority must consult before exercising a delegated or sub-delegated power Consultation here does not mean what it means in colloquial conversation; the agreement of the relevant agency executives and the DNI are required. Again, I actually think this is an impulsive and unnecessary law, but sensationalizing it and misinterpreting terms like 'mitigation' or 'consultation' doesn't help the case against it.
  - rektide 4y ago
    > You might think it's overbroad (and I do actually), but it's not 'whatever the Secretary wants'. you list a bunch of the specific "poses an undue or unacceptable risk of—" claims &c &c. but we have tasked the Secretary of Commerce with hunting not just these risks down, but also 3.a.2, that which "otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons." you've definitely given me/us a good greater perspective on a lot of legal langauge that isn't immediately clear to me. and genuinely thank you for that (although to be truthful i also kind of crave references on which to begin to interpret this for myself, but that is a huge ask & i generally trust/am thankful for your post). but there still feels like a lot of quite unguarded unlimited licenses here, where there's very few people in the loop. you talk about consultation being a rather high commitment/bar than i've said, but it still unclear to me who determines who "the relevant executive department and agency heads" are. america has seen very dark times recently with political elements shopping selectively for receptive elements. i don't see what real restrictions there would be if the SoC asks two known-allies & they agree. how effectively do we expect other parties to be able to say, you ought have consulted me? even if consultation implies a need for concurrence: approval farming seems not-in-any-way-checked. issues like mitigation just seem so dubious. because what if just to pick an example Signal comes under fire, for being a secure system that just so happens to be used by a Foreign Adversary? i don't see any real limits on what the SoC could ask, what they could compel, simply because a Foreign Adversary is somewhere involved. does RISC-V help our Foreign Adversaries? damned right it does, so what's to stop the SoC from pulling down every open architecture project on github? i still feel like there's no real checks here, that this is unlimited license. but i still thank you, and think you have potentially helped us escape misinterpretations.

rektide 4y ago

On the one hand, using fear to justify colossal incursions by the government into every possible concern has absolutely no place in my heart & I spit at the premise. Fear doesn't justify making an awful bill. Fear didn't justify rescinding American rights broadly for the Patriot Act. Even after that horrible day. It was shit then, it's worse pandering pathetic fear-shit now. But. I agree: > it should be discussed in terms of what it does, and not along sensationalist lines. Both myself and the link I've provided have been remarkably sensationalist, yes. But there's also so many massive escape hatches that give this proposal unlimited blanket power, again and again and again. The start itself is auspiciously broad. > The Secretary ... 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 Off to a brilliantly open start, to pursue not just any potential threat from anyone at all associated with foreigners, but to pursue anything that is in any way even risky. If something "otherwise poses [ed: under not already listed vague dangers] an undue or unacceptable risk to the national security of the United States or the safety of United States persons", and the Secretary of Commerce "determine[s] ... if such transaction poses an undue or unacceptable risk" and if found to be an unnacceptable risk can then determine "any other action [that] should be taken to mitigate the effects of the covered transaction". The Secretary of Commerce has to consult with some other heads of government, but then seemingly can say anything is a risk and determine any course of action on their own in response. Sensationalism ahoy but: the Secretary of Commerce just became the 5th branch of government, nice job everyone. Within the first 438 words of law-making we've created a brand new power to do anything against any threat (so long as it has any link or relationship whatsoever to foreigners aka "covered transactions"). Again, this is all the first law-making section (after S1 Short Title, S2 Definitions), "S3. Addressing Information and Communication Technology Products and Services that Pose Undue or Unacceptable Risk." Now, "S4. Addressing Information and Communication Technology Products and Services Holdings That Post Undue Or Unacceptable Risk", throws a little twist in. This time, the Secretary doesn't have any license to "any other action" they deem over any risk arising from a covered transaction. They instead make recommendations to the president over any covered holding that is of a foreign adversary or anyone who the Secretary says might be related, and who "poses an undue or unacceptable risk to the national security of the United States or the security and safety of United States persons." The president can then do whatever they want: "the President may take such action as the President considers appropriate to compel divestment of, or otherwise mitigate the risk associated with, such covered holding to the full extent the covered holding is subject to the jurisdiction of the United States", with again "otherwise mitigate the risk" standing in as a "whatever the fuck we say" carte-blanche statement, as this Restrict act so continuously unlimitedly keeps handing out to everyone, with no checks in sight. As for how this all goes down? "In carrying out the responsibilities under this Act, the Secretary may establish such rules, regulations, and procedures as the Secretary considers appropriate." So the Secretary can literally make new rules, regulations & procedures on the fly to do anything they want. Hello again 5th Branch. How can the Secretary find stuff out? Oh they can now ask anyone anything anytime. "The Secretary may require any party to a transaction or holding under review or investigation pursuant to this Act to furnish under oath, in the form of reports or otherwise, at any time as may be required by the Secretary, complete information relative to any act, transaction, or holding, subject to the provisions of this Act." There's a whole new class of crimes defined by this Act. There's a whole new "Specific Unlawful Acts" section, finding a variety of ways to make unlawful anything that stands in the way of this act or who does not fully participate or who does not turn over a requested piece of information or who in any way aids anyone who does anything to hinder this act. And in case we haven't built a "specific unlawful act" yet, there's the general unlawful act, "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 other authorization or directive issued under this Act" which just says anything slowing down the Secretary of Commerce in any way whatsoever is illegal, period. The Secretary of Commerce has all the cards. Congress can deny adding a Foreign Adversary or removing one. But the Secretary is sole deteminer of who is acting in any way in concordance with a Foreign Adversary or potentially aiding their cause. There's seemingly no one else in the system here. We've created a super-powered position of unlimited enforcement capabilities, with near-infinite purview. https://www.congress.gov/bill/118th-congress/senate-bill/686/text https://www.congress.gov/bill/118th-congress/senate-bill/686...

calgarymicro 4y ago
> but to pursue anything that is in any way even risky. Specific kinds of risk, namely > sabotage or subversion of . . . information and communications technology products and services in the United States; catastrophic effects on the security or resilience of the critical infrastructure; interfering in, or altering the result or reported result of a Federal election; coercive or criminal activities by a foreign adversary; an undue or unacceptable risk to the national security of the United States or the safety of United States persons. You might think it's overbroad (and I do actually), but it's not 'whatever the Secretary wants'. > As for how this all goes down? "In carrying out the responsibilities under this Act, the Secretary may establish such rules, regulations, and procedures as the Secretary considers appropriate." So the Secretary can literally make new rules, regulations & procedures on the fly to do anything they want. Hello again 5th Branch. This is a legal conception in administrative rule making, not carte blanche. This sort of language exists in lots of bills, and courts can and have struck down rules they believe go beyond the scope of a bill (see: WV v. EPA). The general scope of administrative rulemaking is also heavily restricted by the nondelegation doctrine (see DoT vs. AAR as a recent example). > with again "otherwise mitigate the risk" standing in as a "whatever the fuck we say" carte-blanche statement, as this Restrict act so continuously unlimitedly keeps handing out to everyone, with no checks in sight. This 'mitigation' passage is premised on a failure to compel divestment, which makes it pretty clear what is being referred to - efforts to limit access to something that has no US entity to go after. Again, not carte blanch, and courts can and have considered the intent behind legal provisions far less obvious than it is here. > But the Secretary is sole deteminer of who is acting in any way in concordance with a Foreign Adversary or potentially aiding their cause. I will just quote a law dictionary here > in consultation means with the concurrence of the person with whom a delegating authority must consult before exercising a delegated or sub-delegated power Consultation here does not mean what it means in colloquial conversation; the agreement of the relevant agency executives and the DNI are required. Again, I actually think this is an impulsive and unnecessary law, but sensationalizing it and misinterpreting terms like 'mitigation' or 'consultation' doesn't help the case against it.
- rektide 4y ago
  > You might think it's overbroad (and I do actually), but it's not 'whatever the Secretary wants'. you list a bunch of the specific "poses an undue or unacceptable risk of—" claims &c &c. but we have tasked the Secretary of Commerce with hunting not just these risks down, but also 3.a.2, that which "otherwise poses an undue or unacceptable risk to the national security of the United States or the safety of United States persons." you've definitely given me/us a good greater perspective on a lot of legal langauge that isn't immediately clear to me. and genuinely thank you for that (although to be truthful i also kind of crave references on which to begin to interpret this for myself, but that is a huge ask & i generally trust/am thankful for your post). but there still feels like a lot of quite unguarded unlimited licenses here, where there's very few people in the loop. you talk about consultation being a rather high commitment/bar than i've said, but it still unclear to me who determines who "the relevant executive department and agency heads" are. america has seen very dark times recently with political elements shopping selectively for receptive elements. i don't see what real restrictions there would be if the SoC asks two known-allies & they agree. how effectively do we expect other parties to be able to say, you ought have consulted me? even if consultation implies a need for concurrence: approval farming seems not-in-any-way-checked. issues like mitigation just seem so dubious. because what if just to pick an example Signal comes under fire, for being a secure system that just so happens to be used by a Foreign Adversary? i don't see any real limits on what the SoC could ask, what they could compel, simply because a Foreign Adversary is somewhere involved. does RISC-V help our Foreign Adversaries? damned right it does, so what's to stop the SoC from pulling down every open architecture project on github? i still feel like there's no real checks here, that this is unlimited license. but i still thank you, and think you have potentially helped us escape misinterpretations.