Montana Gov. Greg Gianforte has signed into law a bill banning TikTok in the state -- the first ban of its kind in the United States. The statement,SB 419, prohibits TikTok from operating "within the territorial jurisdiction of Montana" and requires that mobile app stores make the app unavailable to Montana residents.
"In order to protect Montaners' personal and private information from the Chinese Communist Party, I banned TikTok in Montana," Gianforte saidtweeted today.
TikTok spokeswoman Brooke Oberwetter responded with a statement on Twitter. "Governor Gianforte signed legislation 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 of Montana."
This is a major step toward a new breed of internet – one where states are increasingly erecting digital barriers in the name of security. But the law won't come into force for months, if it comes into force at all. Here's what's up.
What Does Montana's TikTok Ban Say?
SB 419 is a relatively simple law. It states that "TikTok shall not operate within the territorial jurisdiction of Montana." And states that mobile app stores may not provide "the option to download the TikTok mobile application." An earlier provision would have banned internet service providers from allowing people to access the app, but that didn't make it into the final text.
The law stipulates that no penalties will be imposeduserby Tiktok. But app store operators and TikTok itself could face fines of $10,000 per violation per day, with a single violation defined as "each time a user is accessed on TikTok, they are offered the opportunity to access TikTok to access or be offered the opportunity to download TikTok.”
There is a little ambiguity here. For example, the bill doesn't specify whether allowing people to access TikTok's rudimentary web interface would qualify as a "operation" in Montana. The bill only penalizes app stores for the "option to download" but does not specify liability for ongoing updates of already downloaded apps. (They should probably be banned too, but Apple and Google might try to argue otherwise.)
The ban would be an unprecedented restriction on Americans' access to the Internet. But it will not take effect immediately. By default, the law will come into force on January 1, 2024. Additionally, there's a significant loophole: it will automatically expire if TikTok cuts its ties with Chinese parent company ByteDance, unless the new owner is based in a "foreign adversary country."
Is the Montana Ban Legal?
There's no clear legal precedent for something like the TikTok ban, so we don't know for sure. WeAgainHowever, you know that the ban is likely to be immediately challenged. Though TikTok hasn't announced it will file a lawsuit, it calls the rule a "egregious transgression by the government" and said it would fight it. Internet trade association NetChoice, which represents companies including Meta, Twitter and Google, has issued a statement calling the bill "clearly unconstitutional". NetChoice has sued states like Texas, Florida and California over other bills regulating online speech, so Montana could be next.
NetChoice argues that SB 419 is an unconstitutional "Bill of Attainder," or ordinance, that charges a specific organization with a crime and punishes them without a trial. It also alleges that the law violates the First Amendment and "restricts Americans' ability to share and receive constitutionally protected opinions online."
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, has already done solaid out the First Amendment case against TikTok bans. "It is conceivable that at some point the U.S. government will be able to determine the need to ban TikTok, although it has not yet done so," Jaffer wrote in March, as momentum for a federal TikTok ban was building . "But the First Amendment would place a heavy burden of justification on the government." This argument applies to both Montana and the federal government.
At least some US judges have come to the same conclusion. in 2020,courts blockedThen-President Donald Trump’s executive orders banning TikTok and thealso Chinese-owned WeChat, and concluded that the Trump administration has not demonstrated a security risk worth stopping users from speaking. Those executive orders were repealed when President Joe Biden took office, so the cases never reached a final verdict — but so far, Chinese apps have fared better in court than the politicians who tried to ban them.
Is there a good reason to ban TikTok?
This has been debated for years, and the answer is still, "No one knows." The introduction to the Montana statute states, "TikTok collects vital information from its users and accesses data against their will in order to share it with the People's Republic." Divide China.” But while there is a strong case for TikTokcouldIf we pass on such data, we do not know whether this actually happens. And that's unlikely to change until journalists, intelligence officials, and/or whistleblowers release new details.
That's not a very satisfying answer, so I'll admit that this question is mostly an excuse to post SB 419's entertainingly lurid descriptions of the TikTok challenges. Part of the bill's justification is that TikTok (allegedly) "does not remove, and may even promote, dangerous content that encourages minors to engage in dangerous activities." Then almost all negative TikTok trends of the last few years are taken into account:
Throwing objects at moving cars, taking excessive amounts of medication, setting fire to a mirror and then attempting to extinguish it with just body parts, inducing unconsciousness from lack of oxygen, cooking chicken in NyQuil, pouring hot wax on a user's face, attempting to do so Crack the skull of an unsuspecting passerby by tripping them and landing them face first on a hard surface, sticking metal objects into sockets, dodging cars at high speed, smearing human feces on toddlers, licking doorknobs and toilet seats, to save yourself They contracted the coronavirus, tried to climb stacks of milk crates, shot passers-by with airguns, loosened wheel nuts on vehicles and stole utilities from public places.
Now some of those challengeshaveis said to have caused harm in the real world, but others gained notoriety mainly because well-meaning outsiders warned about them, rather than because people actually tried them. For example, "cooking chicken in NyQuil" was a viral jokejust started to expandwhen 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 don't ban either YouTube or Facebook...because protecting speech you find distasteful or dangerous is a pretty central element of the First Amendment.
How does this overlap with the larger effort to ban TikTok?
Montana is the first US law to pass a full TikTok ban. But several statesincluding Montana, have imposed restrictions that apply to university or government-issued devices. Gianforte added new restrictions, so today this ban applies to more apps.
And at the federal level, both Republican and Democratic lawmakers have done sopushed to ban TikTok. TikTok CEO Shou Zi Chew appeared before Congress in March to answer questions about the app's alleged national security risks and impact on children, but heapparently left lawmakers unperturbed.
For some politicians, at least, a ban is more of a last-ditch nuclear option than a first-line response.The RESTRICT law, which seems to be the most popular bill to ban TikTok so far, opens the door to various remedies that go beyond a ban. (The RESTRICT Act has come into effectsome opposition in Congressbut not necessarily enough to make the difference.) President Joe Biden has reportedly pushed for ByteDanceSpin off or sell TikTok, although it is not clear that the Chinese government would allow this.
The ban in Montana won't take effect for months, so federal lawmakers could act fast enough to discuss its implications. But for now, it's a sign that politicians have no qualms about wiping a popular social network off Americans' phones.
Update 6:50pm ET:Added statement from TikTok.