Montana recently became the first U.S. state to ban TikTok. Only two months after a federal bill was introduced to ban the social media app, the State of Montana officially banned it from operating anywhere within its borders. The popular social media app has been under fire for years with allegations of privacy leaks, links to China, and many other alleged threats it represents. Before now, moves to ban the app have seen momentum but never made it through to law.
Governor Greg Gianfote signed S.B. 419 on Wednesday, May 17, 2023. Other states may soon follow in Montana’s footsteps, but until then, it’s important to know what the new law says about TikTok.
What Is TikTok?
TikTok is an incredibly popular social media app, especially for teenagers and other young people. The app lets users watch, create, and share short videos they take on mobile devices and webcams. It focuses on quirky short videos accompanied by sound effects, music, narration, and text. Amateur and professional creators use filters, backgrounds, and more to create content.
TikTok was launched in 2016 by ByteDance, a Chinese technology company. The app had about 1 billion daily users worldwide in early 20221 and continues to gain popularity despite many concerns expressed about its privacy or influence by the Chinese government.
What the Law Says
The new Montana law states that TikTok is not permitted to “operate within the territorial jurisdiction of Montana.” This means that it violates the new law anytime a “user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok.” This dramatically limits what Montana residents, companies, and third-party providers may do with the social media app and whether they can access it.
Under the new law, each violation may incur a $10,000 fee. An additional $10,000 fee can occur daily for every day the violation continues. Residents and visitors in Montana will not likely be subject to these fees. The law exempts TikTok users from the law’s penalty provisions. However, the penalty is designed for mobile application stores like the Google Play Store or Apple’s App Store, which typically offer TikTok on their platforms. TikTok itself could also face these stiff penalties for any conduct that violates Montana’s ban against it.
The Montana TikTok ban also states that the ban would completely terminate if the company is sold to or acquired by a company that is not a “foreign adversary” to the United States. Montana considers China a “foreign adversary” to itself and to the United States. The act lists TikTok as owned by ByteDance, a Chinese corporation. Should TikTok be sold to another company, it may be able to avoid the ban in the future.
Warnings About TikTok
The law’s text echoes many of the warnings that the Federal Bureau of Investigation (FBI) and other U.S. officials have expressed about the information TikTok collects. Many are concerned about China’s influence and potential control over U.S. member data collected by the app and how it could be weaponized against American citizens.
Montana legislators and its governor expressed many of these same concerns when they supported the bill. “The Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented,” Governor Gianforte said2 about the need for the new law. Many in the state expressed concerns about the Chinese Communist Party’s influence over its corporations, and specifically ByteDance which owns TikTok.
Experts differ considerably about the dangers posed by TikTok to American citizens, but enough are taking it seriously that many states and the federal government are considering its complete ban.
The Purpose of the Montana TikTok Ban
The new law prevents certain perceived harms TikTok presents to Montana residents. The state legislature expressed concern about the harmful nature of the content on TikTok and its impact on users — especially children. Legislators expressed concern that user videos promote “dangerous content” and activities through popular challenges such as the “Nyquil chicken challenge” and licking toilet seats. These “challenges” have been known to encourage harmful behavior and Montana lawmakers have decided TikTok’s influence is to blame.
The apparent primary purpose of the ban is to protect users from harmful data collection. As ByteDance, TikTok’s owner, is a Chinese company, many are concerned that the government will steal user data. The Act alleges that this violates Montana’s right to privacy and this data could be used to harm state residents. The new law also labels TikTok a “valuable tool” that the Chinese government may use to track journalists, public officials, and other important individuals “adverse to the Chinese Communist Party’s interests.”
Others argue that the true purpose of the Montana TikTok ban is to punish it for its association with the Chinese government. Detractors argue that little evidence exists that TikTok violates user privacy rights or that the Chinese government utilizes TikTok user data in the ways alleged. Others allege that lawmakers are simply scoring political points “based on nothing more than fears and falsehoods.”
The Scope of the TikTok Ban
The new law forbids TikTok to “operate” in Montana. The law does not clearly define what this means. However, it does direct that TikTok and other entities that offer it do not permit the app to operate within the territorial limits of the State of Montana.
While the federal government or other states may soon follow in Montana’s footsteps, the TikTok ban only applies within Montana’s jurisdiction. However, many questions remain about how Montana will enforce or identify whether the app operates in Montana. For example, for TikTok to limit Montana users from using the app, the company would have to collect data about the user’s current location or residence. It would also require that mobile application stores do the same to prevent violating the act.
Will More States Add TikTok Bans?
While the Montana law will stay limited in scope to its borders, many other states are already considering similar bans. TikTok users should expect that more states will implement bans on the social media app. Data privacy continues to be a major concern for state legislatures. This is especially true because of the continually evolving technological landscape and new privacy rights implicated by these changes. Several states have enacted data privacy and collection laws to protect residents, such as California’s Consumer Privacy Act. However, legislation against a particular company is a more startling step that will likely face many legal challenges.
TikTok bans and limitations are not only being considered in Montana and the U.S. At this point, Canada, Great Britain, New Zealand, and Australia have taken steps to ban the app on devices owned by federal agencies. The European Union, Pakistan, Afghanistan, and Taiwan have also taken steps to limit access to the app.
Challenges to the Montana TikTok Ban
Montana’s TikTok ban will inevitably see many legal challenges. TikTok vehemently denies the allegations levied against it. The company is adamant that it protects user data and never violates the privacy of its members. It further challenges any insinuation that it will capitulate to the Chinese government should it request or require the disclosure of user information. TikTok will almost certainly challenge the new law’s constitutionality in state and federal courts.
Free Speech Concerns
The TikTok ban will also face challenges from free speech activists. TikTok is a social media and communication platform. This potentially implicates the First Amendment to the U.S. Constitution and Montana’s Constitution. Many already argue that an outright ban infringes upon users’ free speech rights unconstitutionally.
Individual Montana users may also have standing to challenge the new law, arguing that it violates their free speech rights. It may permit application stores like those offered by Apple and Google to challenge the law on free speech and other grounds.
The Montana law is arguably vague about what it means to “operate” within the territorial limits of Montana. Many of the essential terms in the law such as “operation” and “company” are not clearly defined. Many express concern that this vague language could implicate acts that occur outside of Montana and improperly expand Montana’s jurisdiction outside of its applicable borders.
Other social media platforms are concerned as well. The ban leaves open the question of what happens if, for example, a user posts a TikTok video to another social media platform. These other platforms are concerned about their potential liability under the Montana law.
The Dormant Commerce Clause
The U.S. Constitution grants Congress the power to regulate commerce among the states and with foreign nations. Courts may strike down any individual state law which infringes upon Congress’ power under the Constitution, especially when that law would create differential treatment between multi-state interests.
What The Future Holds
The Montana TikTok ban is set to go into effect on January 1, 2024. While litigation may stay the effective date of this ban, more bans are likely coming at both the federal and state levels. How these laws will stand up to constitutional scrutiny and legal challenges remains to be seen. Social media platforms are an integral part of daily life at this point, so regulation of them will remain a contentious issue.
At Morris & Dewett Injury Lawyers, our team stays up-to-date on the new laws and how they affect our clients. We represent clients in Louisiana and Texas and are here to help you whenever you need us. Contact us today to learn more.