Montana is first state to ban TikTok over national security concerns

Montana is first state to ban TikTok over national security concerns
May 2023

Montana became the first state to ban TikTok yesterday. In a press release, the state's Republican governor, Greg Gianforte, said the move was a necessary step to keep Montanans safe from Chinese Communist Party surveillance. The ban will take effect on January 1, 2024.

"The Chinese Communist Party is using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented," Gianforte said. "Today, 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."

Prior to signing Montana Senate Bill 419 into law, critics reported that banning TikTok in the state would likely be both technically and legally unfeasible. Technically, since Montana doesn't control all Internet access in the state, the ban may be difficult to enforce. And legally, it must hold up to First Amendment scrutiny, because Montanans should have the right to access information and express themselves using whatever communications tool they prefer.

There are also possibly complications with the ban, because it prevents "mobile application stores from offering TikTok within the state." Under the law, app stores like Google Play or the Apple App Store could be fined up to $10,000 a day for allowing TikTok downloads in the state. To many critics, that seems like Montana is trying to illegally regulate interstate commerce. And a trade group that Apple and Google help fund has recently confirmed that preventing access to TikTok in a single state would be impossible, The New York Times reported.

TikTok will most likely challenge the ban in court, NPR reported. TikTok spokesperson Brooke Oberwetter told Ars that TikTok continues to dispute that the Chinese government has access to US user data.

"There is no truth to the Governor's claim that TikTok is associated with the Chinese government," Oberwetter told Ars. "The Chinese Communist Party has neither direct nor indirect control of ByteDance or TikTok. ByteDance is a private, global company, with roughly 60 percent owned by global institutional investors, 20 percent owned by the company's founders, and 20 percent owned by employees--including thousands of Americans."

The Electronic Frontier Foundation (EFF), a nonprofit dedicated to defending free speech and privacy online, has long opposed TikTok bans, urging instead that states and the federal government should pass comprehensive data privacy laws to prevent foreign spying.

"This unconstitutional ban undermines the free speech and association of Montana TikTok users and intrudes on TikTok's interest in disseminating its users' videos," an EFF spokesperson said in a statement provided to Ars. "It is a blatant violation of the First Amendment, whether it's done by Congress or Montana. This ban won't protect Montana residents' private data. Companies will continue to harvest and monetize personal info and make it widely available to purchasers, thieves, and foreign actors. Instead of banning the app, pass data privacy laws."

While being grilled by Congress, TikTok CEO Shou Zi Chew took the same stance as EFF, saying that data privacy concerns go way beyond TikTok and claiming that TikTok is more transparent about its algorithm and data collection than any other Big Tech company.

Montana seems to be ignoring any red flags for now. After banning TikTok, Gianforte then directed the state's chief information officer and executive agency directors to ban any social media application tied to foreign adversaries from being used on state equipment and for state business.

The TikTok ban in Montana could help to demonstrate any challenges that the federal government might face if it attempts to enact a nationwide ban. In addition to weighing a TikTok ban bill currently, Congress is also considering alternative legislation, the RESTRICT Act, which would allow the government to restrict access to many more apps and technology products controlled by foreign adversaries. Critics have said the RESTRICT Act is so broad, it would apply to nearly any type of tech product.

TikTok's Oberwetter told Ars last month that Montana apparently has no plan to operationalize the ban, saying that courts will decide if the Montana ban is constitutional. Today, Oberwetter provided a statement alleging that the ban is unlawful and confirming that TikTok will fight to keep the app available in Montana.

"Governor Gianforte has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state," Oberwetter said in the statement. "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."