News68th Session


Lawsuit filed challenging Montana's TikTok ban

Posted at 6:35 PM, May 18, 2023

HELENA — Right now, it’s still as easy as ever to pull up your phone’s app store and download TikTok in Montana. A new law banning the popular social app in the state is set to take effect Jan. 1, 2024, and there are a lot of questions still to be answered – and legal challenges to be resolved – before that time.

Gov. Greg Gianforte signed Senate Bill 419 into law on Wednesday. The bill says TikTok can’t operate in Montana, and that app stores can’t offer it for download within the state’s borders. It institutes penalties of up to $10,000 for each violation, with another $10,000 each day a violation continues. There will not be penalties for users.

In signing the bill, Gianforte said he wanted to make sure the Chinese government couldn’t get access to Montanans’ personal data. TikTok is owned by ByteDance, a company headquartered in China.

“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,” he said in a statement.

But a group of Montana-based TikTok content creators has already filed suit against the ban in federal court. They argued it goes beyond the state’s authority and should be found unconstitutional.

“Montana has no authority to enact laws advancing what it believes should be the United States’ foreign policy or its national security interests, nor may Montana ban an entire forum for communication based on its perceptions that some speech shared through that forum, though protected by the First Amendment, is dangerous,” the lawsuit said.

The complaint went on to say that, even if the state could regulate this type of speech, “SB 419 wields a sledgehammer when the First Amendment requires a scalpel.”

The lawsuit is seeking to block Montana Attorney General Austin Knudsen from enforcing the ban.

TikTok Statement

Brooke Oberwetter, a spokesperson for TikTok, issued a statement Thursday in response to Gianforte signing SB 419.

“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,” the statement said. “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.”

TikTok has also denied that the Chinese government or the Chinese Communist Party have any direct or indirect control over the app or its parent company. They say ByteDance is a private company with ownership divided between global investors, the company’s founders and employees.

Opponents have argued not only that the ban infringes on free expression rights, but that it’s unrealistic for Montana to block the app at the state level.

A spokesperson for Knudsen’s office said the Montana Department of Justice will expect TikTok and app stores to comply with the law, and that they’ll investigate and hold those entities accountable if they hear otherwise. They said there is already “geofencing” technology in use that can limit access based on location.

During the legislative session, Gianforte proposed amending SB 419 to remove specific references to TikTok and expand it to cover all apps that collect personal data and share it with entities located in countries designated as “foreign adversaries” by the federal government. That would include not only China, but also Russia, Cuba, Iran, North Korea and certain Venezuelan politicians.

A spokesperson for Gianforte said last month that the changes would “improve the bill by broadening Montanans' privacy protections beyond just TikTok and against all foreign adversaries, while also addressing the bill's technical and legal concerns.”

However, the Legislature adjourned without considering Gianforte’s amendments.

On Wednesday, Gianforte directed state agencies to stop all of those apps from “adversary” countries – including WeChat, Telegram and others – from being used on state-issued devices or on the state network. He had ordered similar restrictions on TikTok last year.

While SB 419 is a state issue, it’s also drawn attention from Montana’s congressional delegation.

Republican Sen. Steve Daines said in an interview with MTN Thursday that he was pleased to see Gianforte sign the bill.

“The bottom line is Montanans care deeply about their privacy, about their personal data,” he said. “They fear intrusions – by the U.S. federal government or the Chinese government. They don't want government involved in their privacy issues. So Montana's out in the lead here protecting their privacy, protecting personal data.”

Daines said there’s an important discussion for the U.S. to have as a country about data and how much could be accessed by foreign adversaries.

A spokesperson for Democratic Sen. Jon Tester’s office also weighed in on the issue.

“Defending Montanans’ freedom and privacy from foreign adversaries like China is one of Senator Tester’s top priorities, and he’s backed legislation to ban TikTok from government devices,” the spokesperson said in a statement. “He believes we need to prevent spying on Montanans, but believes those steps must be balanced with respecting Montanans’ First Amendment rights.”