Could Montana's Statewide TikTok Ban Work?

The law, which is set to take effect in 2024, would penalize mobile app stores and TikTok itself for allowing users to download or use the platform.

Montana Gov. Greg Gianforte (R) signed a bill Wednesday banning TikTok statewide, making it the first state to take such drastic action against the popular social media platform.

“Montana takes the most decisive action of any state to protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party,” Gianforte said.

Last month, the GOP-controlled House voted in favor of the ban, which is set to begin in January 2024, as the app’s future in the U.S. remains uncertain.

U.S. House lawmakers from both sides of the aisle grilled TikTok CEO Shou Zi Chew in March over the company’s ties to China and the safety of its U.S. user data. And the momentum has been building for national action against TikTok.

Seventeen Republicans in the U.S. Congress wrote a letter to the Senate Committee on Rules and Administration and the House Administration panel last month requesting they introduce rules to ban lawmakers from using the platform to communicate with voters, calling TikTok a “de-facto, spyware app,” Politico reported.

TikTok is owned by the Chinese company ByteDance and could be forced under the country’s laws to turn over user data to the government, U.S. lawmakers have warned. TikTok critics also argue the platform could be used for propaganda and to influence American public opinion on issues such as a potential conflict between China and Taiwan.

The company is incredibly popular in the U.S., with a reported American user base of over 150 million, and any efforts to ban it would likely face legal and political blowback. It’s unclear whether the Montana bill is enforceable and how the state would police it, but it could serve as a key example of what could come next nationwide.

Gianforte signed into law legislation banning the use of TikTok on state-owned devices last year.

TikTok blasted the latest law, adding that it “infringes on the First Amendment rights of the people of Montana,” but did not explicitly say whether it would challenge it in the courts.

“We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana,” the company said in a statement posted on Twitter.

Montana Attorney General Austin Knudsen, whose office wrote the bill, had told The New York Times before the legislation was signed that he anticipated the ban would face legal challenges and expected its fate would ultimately be decided by the Supreme Court.

“I think this is the next frontier in First Amendment jurisprudence that’s probably going to have to come from the U.S. Supreme Court,” Knudsen said in April.

While it’s hard to predict what the Supreme Court’s conservative supermajority would do, proponents of a ban would face an “uphill battle” due to the strong protections offered by the First Amendment, said Caitlin Chin, a fellow for the Center of Strategic and International Studies.

What Does The Montana Bill Ban?

The bill states that TikTok is not allowed to operate within Montana. It also imposes a fine on TikTok and mobile application stores such as Apple’s App Store if they allow users to download or access the platform.

The bill accuses TikTok of allowing “dangerous content that directs minors to engage in dangerous activities” to be posted and even go viral, such as the challenge encouraging people to cook chicken in NyQuil. The bill states that TikTok “threatens the health and safety of Montanans.”

Montana’s legislation also warns the app could be used to spy and identify the location of journalists and politicians who could be targeted by the Chinese Communist Party.

The legislation would be voided only if TikTok is sold to another company that is not incorporated in a country designated as a U.S. adversary.

China has previously expressed opposition to the idea of a forced TikTok sale. A Chinese Ministry of Commerce spokesperson told reporters in March the action would “would seriously damage investors from multiple countries, including China.”

How Have TikTokers Reacted?

Montana resident Shauna White Bear, who has used TikTok to promote her leather moccasins business and has been touted by the company as an example of how it benefits small businesses, expressed shock at the statewide ban legislation.

She said U.S.-owned platforms, such as Facebook, could also be misused and the singling out of TikTok shows Montana lawmakers aren’t well-informed on the subject.

“If it’s a generation that’s voting on this that doesn’t understand the app I don’t know if they should be making these big decisions,” White Bear told CBS News affiliate KTVQ last month.

TikTok had urged its users to write to the governor to express their opposition to the ban and use the hashtag #MTLovesTikTok to tell their followers about what’s happening in the state.

“I think they’re trying to communicate the message that if TikTok were to be banned tomorrow, it’s not the Chinese government that will be hurt, it’s TikTok users that will be hurt,” Chin said.

What Are The Technological Challenges To Enforcement?

One of the first versions of the bill mandated a fine for internet service providers that allowed people to download and access TikTok. But lawmakers amended the text after a representative for AT&T said while internet service providers can give users access to the web, they can’t control what users do.

The final version of the bill holds mobile application stores liable for enforcing the rule.

But TechNet, a group whose membership includes top technology firms like Apple and Google, warned that enforcing the ban just for the state of Montana could prove a challenge.

Knudsen disputed that argument during an interview with Yahoo Finance Live, saying the companies have been able to work out enforcement around sports and betting applications based on different states’ rules.

“This is technology that exists,” Knudsen said. “It’s methodology that exists. I get that Apple and Google might not like it because they’re getting a lot of Chinese money from TikTok. But that doesn’t change the fact that that’s how we’re going to enforce this.”

Another big challenge of enforcing the bill is that users can easily get around the statewide ban by using a virtual private network, or VPN, to change their IP address to make it look like they are in a different location.

State Rep. Katie Sullivan (D) introduced an amendment that would replace the ban with a rule barring all social media companies from sharing U.S. user data with foreign adversaries, but it failed.

Chin noted that even if TikTok were to be banned, many users still post TikTok videos on other social media platforms, like Instagram and YouTube — yet another challenge of fully removing the app from the state.

What Is The Significance Of This Statewide Ban?

The Biden administration is likely to look at the developments in Montana and the reaction of citizens and voters as it considers its own steps, Chin said.

Former President Donald Trump began his efforts to effectively ban TikTok via executive order in August 2020 and again in January 2021. But the push failed in court, leading President Joe Biden to rescind the orders in 2021.

The White House has avoided weighing in on TikTok, referring questions to the Committee on Foreign Investment in the U.S., which reviews foreign transactions involving American businesses for national security concerns. The committee has reportedly called on TikTok’s Chinese owners to either sell their stake in the company or risk a nationwide ban.

“I do think that what happens in Montana could definitely foreshadow what could happen nationwide if Congress or if the Biden administration attempted to push a bigger TikTok ban,” Chin said previously.

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