Republicans are starting to split over exactly how — and whether — to ban TikTok

• Republicans generally support banning TikTok, but they're beginning to disagree on how.
• Several are alarmed by the RESTRICT Act, which they say goes both too far and not far enough.

Republicans are among the most fervent advocates of banning TikTok. But as the conversation has begun to heat up on Capitol Hill, fissures are emerging within the GOP over how to enact a ban — and whether to go through with it at all.

This week, Sen. Rand Paul of Kentucky became the first Republican lawmaker to definitively oppose banning the popular video-sharing app, arguing that it would amount to a "national strategy to permanently lose elections for a generation" and that a ban would only make America more like China.

Paul even rose to object to the passage of fellow Republican Sen. Josh Hawley's bill to ban TikTok on Wednesday night, lambasting the idea for more than 11 minutes in a floor speech.

Lawmakers from both parties have raised concerns that the app could be a vector for malign foreign influence because it's owned by ByteDance, a Chinese technology company.

But even among Republicans who favor a TikTok ban, there are growing concerns about the RESTRICT Act — arguably the most prominent proposal put forward to deal with the issue.

"So, I think we should ban TikTok. I'm a little bit more concerned with the RESTRICT Act," said Sen. JD Vance of Ohio.

"One group of people is very worried that it's too weak on the TikTok issue," said Vance. "Another group of people is very worried that you're creating, effectively, a PATRIOT Act for the digital age," referencing a controversial law passed in the wake of the September 11, 2001 attacks that granted vast new surveillance powers to the federal government.

'It's never about what they say it is'

The RESTRICT Act — short for "Restricting the Emergence of Security Threats that Risk Information and Communications Technology" Act— was put forward this month by Democratic Sen. Mark Warner of Virginia and Republican Sen. John Thune of South Dakota.

It's already garnered broad bipartisan support, including 13 Republican co-sponsors, along with the backing of the White House.

But while other proposals would simply ban the video-sharing app, the RESTRICT Act essentially kicks that decision to President Joe Biden, granting the executive branch new authorities in the process.

Specifically, it gives the Commerce Department the authority to identify and block transactions that involve "foreign adversaries" — including China, Cuba, North Korea, Iran, Russia, and Venezuela — while not explicitly mandating that TikTok be banned.

Hence the critique from the right that it's both not good enough and goes too far at the same time.

"If we're gonna ban it, ban it," said Hawley, saying the RESTRICT Act "just doesn't get there, it doesn't do it, and [grants] a lot of open-ended authority."

Conservative opposition to the bill began to bubble up this week, particularly after Fox News host Tucker Carlson devoted a monologue on Monday night to his objections to the bill.

"This bill is not really about banning TikTok, it's never about what they say it is," said Carlson. "Instead, this bill would give enormous and terrifying new powers to the federal government to punish American citizens and regulate how they communicate with one another."

On Capitol Hill, some Republicans largely echoed that argument.

"That legislation has very broad grants of government power that could prove quite harmful to free speech and could extend far, far beyond just TikTok," said Sen. Ted Cruz of Texas.

"It's worse than banning TikTok, because it can be applied to lots of other companies," said Paul.

Sen. Lindsey Graham, a co-sponsor of the RESTRICT Act, got caught in the crossfire on Wednesday night when Jesse Watters, another Fox News host, characterized the bill as the "federal government [wanting] to watch anything you do on the internet," leaving Graham flummoxed over whether he actually supported the legislation.

Broader free speech concerns

It's not just Republicans — prominent outside experts are warning that the RESTRICT Act is too broad as well.

The Electronic Frontier Foundation (EFF), a digital rights organization, argues the bill would give the executive branch extremely far-reaching authority to ban information and communications technology with little input from Congress.

Some experts have also raised concerns that the RESTRICT Act could affect virtual private networks (VPNs) and other digital security technologies. The bill's authors, for their part, have insisted that the bill wouldn't target individual users of any technology, including a VPN.

Ken Paulson, the director of the Free Speech Center at Middle Tennessee State University, told Insider in an interview that the bill doesn't sufficiently protect individuals as it stands now.

"It needs a clause that specifically says that a resident of this country accessing these services through a VPN or alternative method would not be prosecuted," he said.

Rachel Cohen, a spokeswoman for Sen. Warner, previously told Motherboard that "the threshold for criminal penalty in this bill is incredibly high — too high to ever be concerned with the actions of someone an individual user of TikTok or a VPN."

But more broadly, Paulson, EFF, and other experts say that all of the existing proposals for banning TikTok raise free speech concerns, arguing that the government hasn't shown that a ban would be narrowly tailored to serve a specific government interest — in this case protecting Americans' privacy and preventing Chinese disinformation efforts.

For example, a federal court in California ruled in 2020 that former President Donald Trump's attempt to ban the Chinese messaging platform WeChat would violate First Amendment rights.

"The problem we have right now is that no one has made clear why TikTok poses a problem for national security," said Paulson. "Under the First Amendment, any limitation on speech has to have a genuine justification, and it has to be as narrowly tailored as possible."