Only two months after a federal bill was introduced to ban TikTok nationwide, Montana has become the first U.S. state to officially ban TikTok from operating in the state. Governor Greg Gianforte signed S.B 419 into law on Wednesday after the Montana House of Representatives approved the bill with a 54-43 vote last month.
What Does the Bill Say?
The Act provides “Tik[T]ok may not operate within the territorial jurisdiction of Montana.” As such, it is a violation of the law whenever “… a user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok.” For each violation, the state of Montana can charge a $10,000 violation fee and an additional $10,000 per day if the violation continues.
Though residents of Montana or visitors in the Big Sky state won’t be on the hook for these fees, since the law specifically exempts “users” from the penalty provisions, the mobile application stores, such as Apple’s App Store or Google Play Store, and TikTok itself could face significant fines. Moreover, the Act will completely terminate if TikTok is acquired by or sold to a company that is incorporated in a country that is not considered a foreign adversary to the United States.
The new law comes after the FBI and other U.S. officials released statements warning U.S. citizens the Chinese government could weaponize TikTok by misusing the personal information of users and pushing misinformation.
Montana lawmakers who supported the bill have echoed the same concerns, citing the that the law is necessary to stop TikTok from infringing on Montana’s right to privacy. “The Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented,” Gov. 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.”
The Purpose and Scope of the Ban
The Act is directed at several perceived harms resulting from the online platform. First, the legislature appeared to be concerned with the potentially harmful nature of content on TikTok, and its impact on both children and adults. The bill cites TikTok videos posted by users (not by TikTok itself) which the legislature claims promotes “dangerous content” and “dangerous activities” like cooking chicken in NyQuil or licking doorknobs and toilet seats.
The ban is also aimed at protecting the data collected by TikTok, and therefore ByDance (TikTok’s corporate owner) and by association, the Chinese government. The legislature asserts that TikTok is “stealing information and data from users” and is able “to share that data with the Chinese Communist Party” which “unacceptably infringes on Montana’s right to privacy.”
The new law is also intended to address the use of TikTok as a “valuable tool” for the Chinese government “to conduct corporate and international espionage in Montana” and that the tool “may allow the People’s Republic of China to track the real-time locations of public officials, journalists, and other individuals adverse to the Chinese Communist Party’s interests.”
Because of these concerns, the Montana legislature declares that TikTok cannot be permitted to “operate” in Montana. The law is not exactly clear on what it means for TikTok to “operate” in Montana. Nevertheless, it directs this prohibition towards TikTok and entities (presumably Google and Apple) that permit the mobile downloading of the TikTok mobile application.
The legislature does not seem to target entities that permit the viewing of TikTok videos in other ways, like on a desktop device without a mobile app, or the reposing of TikTok videos to other streaming services for viewing, although the act of reposting might be considered “operating” within Montana. By its terms, the proscription applies to any “entity” but the statute defines an “entity” as meaning only TikTok or a mobile application store. It’s also not clear how TikTok could “geofence” itself from being used by people in Montana without doing the very thing the legislature complained about – collecting data on people’s location.
Protecting Children
The statute also seeks to protect the privacy of Montana’s youth. Significantly, there is already a Federal Law, COPPA, which protects the online activities of children under 13 years of age from being collected from websites, however, it does not contain content based restrictions. What’s worse, if the purpose of the statute is to prevent the Chinese Communist Party from gathering information on kids from Bozeman, then TikTok would have to gather information about its users ages and locations – more personal data.
Punishing China
The actual purpose of the legislation may simply be for people in Helena to set foreign policy for the United States. The statute references protection of Montanans intellectual property from espionage, protecting location data, stealing of information, and other perceived harms by an entity it notes is on the federal governments list.
Montana will likely be the First of Many States to Enact Similar Laws
Social media users should not expect platform bans to be confined to the state of Montana or TikTok. The Committee on Foreign Investment in the U.S. has already threatened to ban the app nationwide if the Chinese based company, ByteDance, does not sell its shares in the company. Moreover, Gov. Gianforte has already asked the state lawmakers to extend the ban to other social media apps that share technology with foreign adversaries.
Bans on TikTok are not limited to Montana or the United States. To date, Australia, United States, Canada, Britain, and New Zealand have also taken steps to ban the app on federal agency devices. Additionally, the EU, Taiwan, Pakistan, and Afghanistan have taken action to limit access to the app.
Data privacy is a paramount concern in our rapidly evolving technological landscape. While only 5 U.S. states currently have data protection laws, Americans should expect an increase in regulation related to data protection to be imminent. Private data can be, and is currently stolen for nefarious purposes, including gaining unfair economic and political advantages. But how will companies operate when laws vary from state to state? Moreover, while the Montana legislature used privacy as a reason for passing this law, it imposes no data privacy requirements on other social media platforms, nor did it impose privacy restrictions on companies based in Russia, Cuba, or any of the other U.S. foreign adversaries.
Opponents of the legislation are concerned that data privacy laws, including Montana’s ban on TikTok, violate the first amendment right to free speech, hinder the development of technology, and prohibit businesses from fully operating.
Challenges to Montana’s TikTok Ban Law are Inevitable
TikTok adamantly denies any wrongdoing and states that the most recent Montana law is a clear violation of the First Amendment. Considering that TikTok is a communication platform used for free speech, Montana lawmakers will need to meet an incredibly high bar to show a complete ban of the platform is the appropriate measure.
TikTok is not the only party that has standing to challenge the ban. Under the new legislation, mobile application stores are now tasked with preventing Montana users from accessing TikTok. This increased responsibility brings into question how mobile application stores, like Apple and Google, will prohibit the download of the app from certain geographic areas. While a geographic block is theoretically possible, it would not address other inevitable scenarios, such as how these mobile application stores would prohibit Montana users to travel to another state to download the app and then bring it back into Montana to view. The Act should also expect challenges from online influencers and business owners who rely on TikTok to operate.
Other Legal Issues
1.) It Is Unclear Whether TikTok Would Violate the Act When Other Social Media Platforms Repost TikTok Content to Their Platforms
Because the purpose of the Act is partially content-based, TikTok may violate the Act if other applications repost TikTok content and it is accessed by a Montana resident. The ban states, “an entity violates this prohibition when any of the following occurs… (a) the operation of TikTok by the company or users.” While “entity” is defined as “a mobile application store or TikTok,” the words “operation” and “company” are not defined. Thus, if a TikTok video is reposted as an Instagram reel, and that reel is or accessed by a Montana resident, TikTok could violate the Act, so long as TikTok could have been “reasonably known” that Instagram users were republishing their reels for viewing by Montana residents. Moreover, in this hypothetical scenario, Instagram could possibly be assisting TikTok in violating the Act.
2.) The Act Applies to the “criminal jurisdiction of Montana,” Providing Montana with Jurisdiction Over Violations Involving Montana Citizens Which Occur Internationally
The Montana law extends to TikTok’s activities outside Montana if those activities invoke the scope of the criminal jurisdiction of Montana. Thus, TikTok’s “operations” in Montana, impacting people in Montana, directed to Montana, or directed at people in Montana would be banned, irrespective of whether they occurred in New York, Cleveland, or Beijing. A Court might find that the legislature has improperly attempted to extend its authority over foreign policy.
3.) The Act could be seen as a Bill of Attainer
Beyond asserting first amendment rights, opponents may try and argue that any legislation is illegal under the Bill of Attainder Clauses, violating the constitution. A bill of attainder is an act or law which declares a person or group is guilty of some crime and punishes the party, without holding a trial. The Supreme Court has never decided whether the Clauses apply to corporations, but this may be another channel for challenging the Act.
4.) The Act May Violate the Dormant Commerce Clause
Article I, Section 8 of the Constitution, known as the Dormant Commerce Clause, provides Congress with the power to “to regulate commerce with foreign nations, and among the several states. Under this section, courts have the power to strike down state laws which expressly mandate differential treatment of in-state and out-of-state competing economic interests in a way that benefits in state actors and burdens out of state actors. Courts review these challenges under strict scrutiny, requiring a state to demonstrate that there is no less discriminatory means to achieve the stated purpose. This is an extremely high standard. As the Congressional Research Service noted in a recent report:
“The Constitution gives the federal government the primary power to manage the United States’ foreign relations. Article I, Section 10 prohibits states from engaging in a set of activities that implicate international affairs, while the Supremacy Clause, Foreign Commerce Clause, and other constitutional provisions place key elements of this power with the federal government. Interpreting these provisions, the Supreme Court has described the States’ foreign affairs power not only as superior to the states but residing exclusively in the national government. With respect to foreign relations, the Supreme Court said that “state lines disappear” and the “purpose of the State…does not exist.”
Implications for the Future
While there is no pending litigation yet, if the law stays intact, the ban will go into effect on Jan. 1st, 2024. While Montana’s ban is likely to face legal challenges, it also provides a lens into how social media platforms may be regulated in the United States in the future, signifying a substantial shift that is likely to have far-reaching implications on online privacy and free speech.
For further questions or clarifications regarding the content of this article, please contact KJK attorneys Ali Arko (ALA@kjk.com; 216.716.5642), Mark Rasch (MDR@kjk.com; 301.547.6925) or Emily Stoerkel (ELS@kjk.com; 614.427.5755).