Montana’s TikTok ban is unconstitutional and makes no sense
Montana has become the first US state to ban TikTok, forbidding the popular social media app from operating within the state’s borders. The state law also compels Apple and Google to drop TikTok from their app stores under penalty of a $10,000-per-day fine.
“To protect Montanans’ personal and private data from the Chinese Communist Party, I have banned TikTok in Montana,” governor Greg Gianforte wrote on Twitter.
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Only, the ban does neither of those things. And experts say it’s extremely unlikely to hold up in court.
TikTok access is a First Amendment issue
TikTok has received bipartisan scorn from US lawmakers for its ties to Chinese parent company ByteDance and its data privacy practices.
Former US president Donald Trump failed to ban TikTok in 2020 after a federal judge ruled that he overstepped his emergency economic powers in doing so. Trump also failed to successfully ban WeChat, an app owned by Chinese tech giant Tencent, with a different judge finding that a ban likely violated American users’ First Amendment right to free speech. Trump’s successor, US president Joe Biden, has reportedly explored forcing ByteDance to sell TikTok on national security grounds, an effort also started during the Trump administration.
Montana’s TikTok ban is sure to face a similar First Amendment challenge—one legal experts are certain the state will lose.
“The government may not block our ability to access constitutionally protected speech—whether it is in a newspaper, on a website or via an app,” Carl Szabo, the vice president and general counsel of the tech trade association NetChoice, wrote in a statement. “In implementing this law, Montana ignores the US Constitution, due process and free speech by denying access to a website and apps their citizens want to use.”
Jameel Jaffer, the executive director of the Knight First First Amendment Institute at Columbia University, wrote, “Because Montana can’t establish that the ban is necessary or tailored to any legitimate interest, the law is almost certain to be struck down as unconstitutional.”
A TikTok ban doesn’t solve any privacy problems
Cindy Cohn, executive director of the digital rights group Electronic Frontier Foundation, called the law “wrongheaded” and predicted it will fail in court. She also said that, from a privacy standpoint, it’s misguided.
“I am very concerned about the privacy implications of social media, but I think the way forward is to have comprehensive privacy protections against all of these systems; I don’t think there’s a good reason to single out TikTok and let everyone else scot-free, especially when we know there’s a very thriving data market,” Cohn told Quartz. “If the Chinese government wants data on you and me, they have so many places they can go. They don’t need TikTok.”
Taking TikTok off government-issued phones
Already, multiple states have banned TikTok from government-issued phones, but that’s something that’s safely within their powers. The Biden administration ordered federal agencies do the same in February.
But the legality and practicality of Montana’s TikTok ban on non-government devices is another issue entirely. It’d be difficult to pull off: Geofencing an app isn’t an exact science and can be often be easily bypassed by virtual private networks (VPNs).
Tarah Wheeler, a senior fellow at the Council on Foreign Relations, put it simply in a recent interview with The Atlantic: “I rarely see a bill that is this technically stupid.”
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