Montana Governor Greg Gianforte has signed a bill banning TikTok within the state, the first such ban in the United States. The invoice, SB 419prohibits TikTok from operating “within the territorial jurisdiction of Montana” and requires that mobile app stores not make the app available to Montana residents.
“To protect the personal and private data of Montanans from the Chinese Communist Party, I have banned TikTok in Montana,” Gianforte tweeted today. We have reached out to TikTok for comment.
This is a big step towards a new kind of internet, one in which states are erecting more and more digital barriers in the name of safety and security. But the law won’t take effect for months either, if at all. This is what is happening.
What does Montana’s TikTok ban say?
SB 419 is a relatively simple law. It states that “TikTok may not operate within the territorial jurisdiction of Montana.” And it says that mobile app stores may not offer “the option to download the TikTok mobile app.” An earlier provision would have prohibited Internet service providers from allowing people to access the app, but that was not included in the final text.
The law specifies that no sanctions are applied to users from Tik Tok. But the app store operators and TikTok itself could face fines of $10,000 per violation per day, with an individual violation defined as “every time a user accesses TikTok, they are offered access to TikTok or are offers the possibility to download TikTok”.
There is a bit of ambiguity here. The bill does not state, for example, whether allowing people to access TikTok’s rudimentary web interface would count as “operating” within Montana. The bill only penalizes app stores for “opting to download,” but does not establish liability for continuous updates to apps already downloaded. (They’re probably supposed to be banned, too, but Apple and Google might try to argue otherwise.)
The ban would be an unprecedented restriction on Americans’ access to the Internet. But it will not take effect immediately. The law goes into effect on January 1, 2024, by default. On top of that, there’s one major loophole: It’s automatically voided if TikTok breaks ties with Chinese parent company ByteDance, as long as its new owner isn’t located in a “foreign adversary” nation.
Is the Montana ban legal?
There is no strong legal precedent for something like a TikTok ban, so we don’t know for sure. Us do know, however, that the ban will likely be challenged immediately. Although TikTok hasn’t said he will sue, he calls the rule an “egregious government overreach” and said he would fight it. Internet trade association NetChoice, which represents companies including Meta, Twitter and Google, issued a statement calling the bill “clearly unconstitutional.” NetChoice has sued states like Texas, Florida and California over other bills regulating online speech, so Montana could be next.
NetChoice argues that SB 419 is an unconstitutional “proscription bill” or regulation that charges a specific entity with a crime and punishes it without trial. It also contends that the law violates the First Amendment, “restricting the ability of Americans to share and receive constitutionally protected speech online.”
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, has filed First Amendment case against TikTok bans. “It is conceivable that the US government may eventually establish the need to ban TikTok, even if it hasn’t already,” Jaffer wrote in March as momentum was building behind a federal ban on TikTok. “But the First Amendment would require the government to carry a heavy burden of justification.” That argument is as valid for Montana as it is for the federal government.
At least some US judges have reached the same conclusion. In 2020, courts blocked then-President Donald Trump’s executive orders banning TikTok and similarly Chinese-owned WeChat, concluding that the Trump administration had failed to demonstrate a security risk worth shutting down user speech. These executive orders were repealed when President Joe Biden took office, so the cases never reached final adjudication, but so far, Chinese apps have fared better in court than politicians trying to ban them.
Is there a good reason to ban TikTok?
This has been debated for years, and the answer is still “nobody knows.” The Montana bill’s introduction states that “TikTok collects important information from its users, accessing data against their will to share with the PRC.” But while there is a strong argument TikTok could share such data, we don’t know if that’s really happening. And that likely won’t change until new details are released by journalists, intelligence officials, and/or whistleblowers.
That’s not a very satisfying answer, so I confess that this question is mostly an excuse for posting SB 419’s entertainingly creepy descriptions of TikTok’s challenges. Part of the justification for the bill is that TikTok (supposedly) “doesn’t remove , and may even promote, dangerous content that directs minors to engage in dangerous activities.” Then it includes almost all the negative TikTok trends of the last few years:
Throwing objects at moving cars, taking excessive amounts of medication, setting a mirror on fire and then attempting to extinguish it using only body parts, inducing unconsciousness through oxygen deprivation, cooking chicken in NyQuil, pouring hot wax on the face of a user, attempting to crack the skull of an unsuspecting bystander by tripping them so that they land face down on a hard surface, placing metal objects in electrical outlets, swerving cars at high speeds, smearing human feces on small children, licking doorknobs and toilet seats to put yourself at risk of contracting coronavirus, attempt to scale stacks of milk crates, shoot passersby with BB guns, loosen vehicle lug nuts, and steal utilities from public places.
Now some of these challenges have supposedly caused damage in the real world, but others gained infamy mainly because well-meaning outsiders warned about them, not because people were actually testing them. “Cooking chicken at NyQuil,” for example, was a viral joke that only began to have a broader trend when the Food and Drug Administration amplified it with a bulletin. TikTok is also far from the only place where people encourage each other to do stupid things online. And Montana lawmakers aren’t banning YouTube or Facebook…because protecting speech you find unpleasant or dangerous is a pretty key element of the First Amendment.
How does this intersect with the larger TikTok ban effort?
Montana is the first US legislature to pass an outright ban on TikTok. But several states including montana, have approved restrictions that apply to universities or government-issued devices. Gianforte added new restrictions that make the ban apply to more apps today.
And at the federal level, both Republican and Democratic lawmakers have pushed to ban TikTok. TikTok’s chief executive, Shou Zi Chew, appeared before Congress in March to answer questions about the app’s alleged national security risks and effects on children, but apparently left lawmakers unmoved.
For at least some politicians, a ban is a last-minute nuclear option rather than a first response. The RESTRICT Act, which so far appears to be the most favored TikTok ban bill, opens the door for various mitigation measures in addition to a ban. (The RESTRICT Act has begun to face some opposition in Congress, but not necessarily enough to tip the scales.) President Joe Biden reportedly pushed for ByteDance to spin off or sell TikTok, though it’s unclear whether the Chinese government would allow it.
Montana’s ban won’t take effect for months, so federal lawmakers could move quickly enough to debate its effects. But for now, it’s a sign that politicians have no qualms about wiping a popular social network off Americans’ phones.