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The last is https://twitter.com/lpmisescaucus/status/1639934790026555394 which is a thread showing a long long series of horrifying intrusive new powers & maximalist authoritarianism.

This is absolutely the most craven anti-people hood power grab my generation has seen in America. Absolutely as bad as the Patriot Act. Truly wretched way to take fear mongering & use it to intrude absolutely on anything the military or the government does not like. Fuck this, fuck these people.

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.

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...

> 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.

> 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.

> on which to begin to interpret this for myself

Probably a good place to start are the SCOTUS cases I mentioned, as well as nondelegation doctrine (Kennedy's concurrence in Clinton v. NYC is a good resource there); looking into those should be helpful.

> but it still unclear to me who determines who "the relevant executive department and agency heads" are

This is usually delineated by executive order beforehand, so the President, effectively.

> how effectively do we expect other parties to be able to say, you ought have consulted me?

Well we have the Sec. of Commerce, the relevant agency heads, the DNI, the president, and, as a last resort, a concurrent resolution from Congress (which should only require simple majorities by the way, so a lower bar than the law itself) and the courts. Still a lot of power in the executive, so I get being concerned about that, but for me this is less about the individual of the Commerce secretary themselves.

> what's to stop the SoC from pulling down every open architecture project on github?

They have the power to prohibit transactions with labeled entities, so they could theoretically tell Github to stop hosting all open architecture projects by a specific Chinese company for example, but not all such projects in general.

> i still feel like there's no real checks here

As I mentioned, there are many checks, including Congress and the courts. The real concern is when they choose not to do their job, as was the case with the PATRIOT Act. That doesn't mean they don't exist; it means they were derelict in their duty. That's what I get concerned about - apathy in the structures that are supposed to guard against abuses.

Reading through the actual text of this bill (obligatory I am not a lawyer), I don't see _anything_ that actually would allow a Person ("a natural person, including a citizen or national of the United States or of any foreign country.") to be considered a "Covered Entity". The language for "Entity" _clearly_ specifies that it is only referring to artificial entities e.g. LLCs, Trusts, etc.

I have my own opinions on the bill, but I don't see a legal pathway in this bill to apply any of the restrictions on it to a Person, only onto companies.

A random substack article that cites the Mises Caucus [1] and Tim Pool as authorities? Color me shocked that it doesn't make a good argument. I'm open to the idea that this is a bad bill, but this article isn't making a persuasive case.

[1] https://www.splcenter.org/hatewatch/2022/05/25/mises-caucus-...

>The MC and its members have argued for limited immigration enforced by property owners on the border and police action against Black Lives Matter and antifa protesters. They’ve also made anti-trans remarks. Mises-controlled Montana removed the right to abortion from its platform.

Aah yes, my favorite kind of freedom-loving libertarians: temporarily embarrassed dictators.

The mises caucus isn't a unified thing, and those folks hardly ever agree on anything other than hating central banks.

And sending our colored cousins home again. Big-L Libertarianism is back, baby, and racist as it’s always been. Soon, I expect Jason Calcanis to arrive to explain how this somehow makes the MC the last bastion of the true moderates.

Lysander Spooner was one of the thinkers who lead to American libertarianism, and was first and foremost an abolitionist. Painting a whole intellectual tradition with such a broad brush based on the late in life nonsense spouted by Rothbard or the shitty newsletter Ron Paul used to publish is intellectually dishonest. Among contemporary American Libertarians you'll also find a lot of readers and admirers of Zora Neale Hurston who is often considered along side Rose Wilder Lane and Isabel Paterson as a founding mother of American libertarianism. You'll also find that American libertarians have long criticized Woodrow Wilson for re-segregating the government, opposed interracial marriage laws, opposed mass incarceration, and on and on.

> If you recall from before, “Foreign Individuals” can now also be US citizens that are deemed a national security threat.

Could this potentially be unconstitutional?

Not on it's own, because the constitution doesn't say "Congress shall make no law that binds US citizens". It says a handful of specific things that Congress cannot do, and without knowing exactly what is being blocked, banned, or spied upon I can't say if it's unconstitutional or not.