TikTok is now banned in Montana: Here’s what you need to know

Montana Governor Greg Gianforte has signed a bill banning TikTok within the state — the first ban of its kind in the United States. The bill, SB 419prohibits TikTok from operating “within the territorial jurisdiction of Montana” and requires mobile app stores not to make the app available to Montana residents.

“To protect Montanans’ personal and private information from the Chinese Communist Party, I have banned TikTok in Montana,” Gianforte tweeted today.

TikTok spokesperson Brooke Oberwetter responded with a statement on Twitter. “Governor Gianforte signed into law a bill that violates 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,” Oberwetter wrote. “We want to reassure Montanans that they can continue to use TikTok to express themselves, make a living and find community as we continue to work to defend the rights of our users inside and outside Montana.”

This is a huge step towards a new kind of internet, with states increasingly erecting digital barriers in the name of safety and security. But the law won’t take effect for months, if at all. Here’s what’s going on.

SB 419 is a relatively simple law. It states that “TikTok may not operate within the territorial jurisdiction of Montana.” And it says mobile app stores may not “provide the option to download the TikTok mobile application”. An earlier provision would have prohibited internet providers from giving people access to the app, but that did not make it to the final text.

The law stipulates that no sanctions apply users from TikTok. But app store operators and TikTok itself can face fines of $10,000 per violation per day, with an individual violation defined as “every time a user is given access to TikTok, they are offered the opportunity to access TikTok, whether the option to download TikTok is offered.”

There’s a bit of ambiguity here. For example, the bill doesn’t mention whether giving people access to TikTok’s rudimentary web interface would count as “working” within Montana. The bill only penalizes app stores for “the option to download”, but does not establish liability for ongoing updates of apps already downloaded. (It’s likely they should be banned too, but Apple and Google could try to argue otherwise.)

The ban would be an unprecedented restriction on Americans’ access to the Internet. But it won’t go into effect right away. By default, the law takes effect January 1, 2024. Plus, there’s a major loophole: It’s automatically invalidated if TikTok cuts ties with Chinese parent company ByteDance, as long as the new owner isn’t based in a “foreign adversary” country .

There’s no hard legal precedent for something like the TikTok ban, so we’re not sure. We Doing know, however, that the ban is likely to be challenged immediately. While TikTok has not said it will sue, it called the rule a “blatant government overreach” and said it would fight it. The internet trade association NetChoice, which represents companies such as Meta, Twitter and Google, called the bill “blatantly unconstitutional” in a statement. NetChoice has sued states including Texas, Florida and California over other bills regulating online speech, so Montana may be next.

NetChoice argues that SB 419 is an unconstitutional “bill of achievement,” or an ordinance that charges a specific entity with a crime and punishes them without trial. It also alleges that the law violates the First Amendment, “restricting Americans’ ability to share and receive constitutionally protected speech online.”

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, has previously explained the First Amendment case against TikTok bans. “It is conceivable that the US government will eventually be able to determine the need for a ban on TikTok, even if it has not done so yet,” Jaffer wrote in March as the momentum behind a federal TikTok ban gathered. growing wax. “But the First Amendment would require a heavy burden of justification from the government.” That argument is as true for Montana as it is for the federal government.

At least some US judges have come to the same conclusion. In 2020, courts blocked executive orders from then-President Donald Trump to ban TikTok and the also-Chinese WeChat, concluding that the Trump administration had not demonstrated a security risk worthy of shutting down users’ speech. These executive orders were reversed when President Joe Biden took office, so things never reached a final verdict — but so far Chinese apps have fared better in court than the politicians who tried to ban them.

This has been debated for years and the answer is still “nobody knows”. The introduction to the Montana bill claims that “TikTok collects important information from its users and accesses data against their will to share with the People’s Republic of China.” But while there is a strong argument for TikTok could be share such data, we do not know whether that actually happens. And that probably won’t change until journalists, intelligence officials and/or whistleblowers release new details.

That’s not a very satisfying answer, so I confess that this question is mostly an excuse to post SB 419’s amusingly lurid descriptions of TikTok challenges. Part of the bill’s justification is that TikTok (allegedly) “fails to remove and even promote dangerous content that incites minors to engage in dangerous activities.” Then it throws in almost every negative TikTok trend of recent years:

Throwing objects at moving cars, taking excessive amounts of medication, setting fire to a mirror and then trying to extinguish it using only body parts, causing unconsciousness due to lack of oxygen, boiling chicken in NyQuil, pouring hot wax on a user’s face, attempting to destroy the skull breaking from an unsuspecting passerby by landing him or her face down on a hard surface, inserting metal objects into electrical outlets, swerving cars at high speed, smearing human feces on toddlers, licking doorknobs and toilet seats to self-injure of contracting the coronavirus, attempting to climb stacks of milk crates, shooting passersby with air rifles, loosening lug nuts on vehicles, and stealing utilities from public places.

Now, some of these challenges to have reportedly caused damage in the real world, but others became notorious mainly because well-meaning outsiders warned against them, not because people actually tried them. For example, “Cooking Chicken in NyQuil” was a viral joke only started to trend more broadly when the Food and Drug Administration reinforced it with a bulletin. TikTok is also far from the only place where people encourage each other to do stupid things online. And Montana lawmakers aren’t banning YouTube or Facebook…because protecting speech you find unpleasant or dangerous is a pretty important part of the First Amendment.

Montana is the first US legislature to pass a full TikTok ban. But several states including Montana, have adopted restrictions that apply to university or government-issued devices. Gianforte added new restrictions that extend that ban to more apps today.

And at the federal level, both Republican and Democratic lawmakers have pushed for a ban on TikTok. TikTok CEO Shou Zi Chew appeared before Congress in March to answer questions about the app’s alleged national security risks and effects on children, but he apparently left lawmakers unmoved.

For at least some politicians, a ban is a last-ditch nuclear option rather than a first response. The RESTRICT law, which seems to be the most favored TikTok ban law so far, opens the door to several mitigating measures apart from a ban. (The RESTRICT bill is meeting some opposition in Congress, but not necessarily enough to tip the scales.) President Joe Biden has reportedly pushed for ByteDance to spin off or sell TikTok, though it’s not clear the Chinese government would allow this.

Montana’s ban won’t go into effect for months, so federal lawmakers can act fast enough to challenge its effects. But for now, it’s a signal that politicians have little qualms about erasing a popular social network from Americans’ phones.

Update 6:50 PM ET: TikTok statement added.