Over the next few months, Montana must prove that it has the power to do what the federal government has so far only tried and failed to do: ban TikTok.
While TikTok and several state-based app users have claimed that the state's TikTok ban is unconstitutional and improperly attempts to regulate US-China foreign relations, Montana recently raised its best arguments to uphold the ban. In a court filing last week, Montana sought to convince a US district court to reject TikTok's motion to delay the statewide ban from taking effect on January 1, 2024, until the federal case is resolved. Beyond disputing the relevance of constitutional concerns, Montana took a seemingly hostile stance, calling out TikTok for alleged "hypocrisy" and evasiveness of US authorities attempting to protect Americans' data from foreign spying.
"TikTok’s apparent position is it cannot be regulated—by anyone," Montana argued, accusing TikTok of playing "fast and loose" with courts and improperly shifting away from an argument that TikTok made that got Donald Trump's ban overturned.
"When President Trump attempted to regulate TikTok under the International Emergency Economic Power Act, it argued that the President didn’t have the authority to do so," Montana argued. "Now, when the State of Montana is regulating TikTok, the company makes the claim it cannot do so because that power is reserved for the federal government."
Accusing TikTok of capturing "reams of personal, private data from every Montana TikTok user" that can allegedly be accessed by members of the Chinese Communist Party (CCP) at "any time—without asking TikTok," Montana argued that courts should respect that "the State of Montana has the power to regulate products or practices that in its judgment impose unjustifiable consumer harms."
Montana's argument hinges partly on convincing courts that blocking one social media platform doesn't violate TikTok users' First Amendment rights because there are plenty of other short-video platforms where they can post the same content.
"Despite the company’s allegations that Montana’s law implicates First Amendment rights, the law is a content-neutral and narrowly tailored law that serves a significant government interest in furthering its consumer protection laws and content-neutral policy that “regulates one channel of Internet expression but leaves all others untouched,'” Montana said in a statement provided to Ars.
Experts dispute Montana’s claims
However, the Electronic Frontier Foundation (EFF) civil liberties director, David Greene, told Ars that TikTok does not appear hypocritical in its arguments. He also noted that it's "the very fact" that Montana's TikTok ban is "only targeting one channel of expression that makes it not content-neutral."
According to Greene, courts define "content-neutral" laws as treating all speakers equally, and Montana must consider not only that TikTok is a platform for speakers but that the platform is a protected speaker sharing content with Montanans.
By singling out the app, the state ban by that logic is seemingly inherently not content-neutral, Greene told Ars, and this is likely why Montana governor Greg Gianforte attempted to revise the law to cover all apps owned by foreign adversaries before he signed it. The governor was seemingly concerned that the ban would not survive strict constitutional scrutiny. However, his suggestion was rejected by state lawmakers, and Greene said that, ultimately, focusing on TikTok could undermine the state's content-neutral argument.
"The governor tried to make it a neutral law by saying it would apply to any platform," Greene told Ars. "And the legislature rejected that and said, 'No, no, we only care about TikTok.'"
The deputy director of the ACLU's National Security Project, Patrick Toomey, agreed with Greene.
"The Supreme Court has been clear that when a law has the inevitable effect of singling out and suppressing a particular means of expression, the First Amendment’s protections apply in full force," Toomey said in a statement provided to Ars. "The state can’t evade the First Amendment just by claiming it has another purpose.”
If the US district court sides with TikTok, Montana's ban wouldn't take effect until the case resolves. A TikTok spokesperson told Ars that the ban should be delayed for several reasons, including First Amendment concerns. Montana has claimed the law is narrowly tailored and isn't a prior restraint on speech, arguing that the ban should be upheld because it "doesn’t prohibit certain messages, ideas, subject matter, or content. It prohibits the use of a product in Montana."
"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," the state argued.
TikTok users fear a ban could cause "irreparable" harm to small business owners who depend on the app for promotion. In their complaint, some TikTokers suing over the ban had claimed that a substantial portion of their incomes were derived from TikTok. One TikToker said that the platform helped her triple her family's household income. Despite this testimony, Montana argues that these TikTok users have failed "to sufficiently show what monetary harm they might suffer if they use a different online video platform."
It's still unclear whether it's even technically possible for Montana to enforce a TikTok ban, experts told Ars, but if the ban does go into effect, TikTok would be on the hook for $10,000 per violation if the app is accessed in Montana. The cost of violations could add up quickly since TikTok has estimated that 380,000 Montanans currently use TikTok, Reuters reported.
A hearing is scheduled for October 12 to determine if the TikTok ban should be delayed or allowed to take effect as soon as January 1, 2024. Montana said it plans to "vigorously defend" the ban at the hearing.
“No other app conditions its use on making Montanans’ digital privacy subject to data harvesting with at-will CCP access; in this respect, TikTok stands alone,” Montana argued.
Toomey told Ars that if data privacy was Montana's real concern, the state would be just as worried about other apps that monitor Montana Internet users' data, but that's not seemingly the case here.
“It’s laughable to call a total ban on TikTok narrowly tailored, especially as so many other apps collect Montanans’ private data and then sell it on to the highest bidder," Toomey said. "Montana’s leaders should be enacting a careful, comprehensive privacy law rather than banning one app just to score political points. The state’s ban on TikTok is a direct restriction on the free speech and association of hundreds of thousands of Montanans who will be cut off from the vast community of users on this unique platform."
More concerns of TikTok spying arise
Montana's TikTok ban comes as the Biden administration's attempts to strike a deal with TikTok to keep the app operating in the US have seemingly stopped, with no official word from either side on whether a deal is still being ironed out. But it recently became clear that even if the US struck a deal with TikTok, users' concerns over government spying wouldn't necessarily be over.
Yesterday, Forbes reported an exclusive look at a "confidential attorneys' draft" of that deal from summer of 2022, which Forbes said contained comment exchanges between lawyers for TikTok owner ByteDance and the Committee on Foreign Investment in the United States.
According to Forbes, "were it to be finalized," the deal would provide the US government "near unfettered access to internal TikTok information and unprecedented control over essential functions that it does not have over any other major free speech platform"—subjecting TikTok to "significantly more government oversight than domestic competitors like Facebook, Instagram, YouTube, and Twitter."
Under the deal, the US Departments of Justice and Defense would allegedly have the authority to investigate TikTok without notice, block changes to the app's terms of service or privacy policies, veto the hiring of executives with control over US data security, order TikTok to pay for external audits, and even temporarily stop TikTok from operating in the US, should national security concerns arise.
Experts told Forbes that it's an unprecedented government contract that deserves public scrutiny because it "could give the US government some of the same types of power that it fears the Chinese government could abuse."
A TikTok spokesperson told Forbes that the company couldn't comment on the draft deal because Forbes declined to share the document, unwilling to potentially reveal its source.
