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Montana TikTok ban moves closer to federal court hearing

TikTok Montana
Posted at 6:55 PM, Aug 21, 2023

HELENA — A new state law that bans the social media app TikTok from operating in Montana is set to take effect Jan. 1 – but before that, a federal judge will have to consider whether to put the law on hold.

On Friday, Montana Attorney General Austin Knudsen’s office filed their response to a federal lawsuit seeking to block the TikTok ban. They argued the state does have the authority to regulate the app to protect Montanans, and asked that the law be allowed to go into effect as the case moves forward.

Last month, plaintiffs – including TikTok and five Montana-based content creators who use the app – filed briefs seeking a preliminary injunction on the law, saying it’s an overbroad burden on free expression rights that will have immediate impacts.

Senate Bill 419, sponsored by Sen. Shelley Vance, R-Belgrade, passed the Legislature in April. Gov. Greg Gianforte signed it into law the following month.

The law 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. Individual users would not face penalties.

Supporters of the ban cited concerns that TikTok user data could be vulnerable to the Chinese government. TikTok is owned by ByteDance, a company headquartered in China, and Congress has held hearings into claims that officials from the Chinese Communist Party could access information on U.S. users.

The law also claims the app could be harmful for children by showing them “dangerous content that directs minors to engage in dangerous activities.”

TikTok filed suit in federal court, saying the ban was an overreach. That case has since been combined with the lawsuit from content creators.

In their filings, the plaintiffs argued that Montana had overstepped its authority in banning TikTok.

“Although SB 419 purports to safeguard national security and protect children from dangerous content, Montana has no authority to enact laws advancing its own view of United States foreign policy or national security interests, nor may the State ban an entire medium based on perceptions that some speech shared through that medium is unsuitable for children,” said the users’ attorneys in a brief.

TikTok’s attorneys said the app has hundreds of thousands of users in Montana. They said the ban is depriving the company of that audience – and cutting Montanans off from the people they can reach through the app. They argued TikTok is being unfairly disadvantaged, while other platforms may continue to share the same type of content leaders have expressed concern about.

The company argued Montana is restricting interstate commerce and intruding into areas of foreign policy that should be the exclusive role of the federal government.

“That the Ban is void if TikTok is sold to a domestic buyer—even if purportedly dangerous content remains on the platform—underscores that the true purpose of the Ban is to regulate foreign affairs, notwithstanding its purported minor-safety justification,” they said.

TikTok has denied claims that its app puts user data at risk, saying the Chinese government and the Chinese Communist Party don’t have direct or indirect control over it, that they’ve never received a request to share U.S. data with Chinese authorities, and that they’ve put significant resources into protecting American users’ data.

Knudsen’s office said in their response brief that the TikTok ban is blocking a product, not the speech it conveys. They said the app is treated differently simply because it’s in a much different position than other platforms, and TikTok can’t claim First Amendment protections to avoid a law that’s not targeted at expressive activity.

“No other app conditions its use on making Montanans’ digital privacy subject to data harvesting with at-will C.C.P. access; in this respect, TikTok stands alone,” they said. “And no protected expressive attributes can be attributed to a hostile foreign government’s massive data- harvesting efforts intentionally directed at Montanans; that’s the “non- expressive activity” SB419 targets.”

The state argued Montana is in line with dozens of other states and federal leaders from both parties who’ve expressed concerns about data privacy on TikTok, so the ban doesn’t conflict with federal policy. They said the ban isn’t limiting free expression because it only stops one pathway for users.

“Montanans ‘may continue to express themselves through other and traditional methods of communication’ by sharing videos, memes, and every other kind of expressive content on every other internet-based video or social-media platform,” they said.

A hearing on the request for an injunction is scheduled for Oct. 12 at 9 a.m., at the federal courthouse in Missoula.