A court battle over First Amendment rights appeared to be brewing in Montana on Thursday, in response to the state’s ban on TikTok from operating there effective Jan. 1, the first such ban in the nation.
The ban, which was signed by Gov. Greg Gianforte on Wednesday, prompted an outcry from TikTok, civil liberty and digital rights groups, and angry TikTok users, who called it an unconstitutional infringement of free speech. Montana lawmakers and Republican Gianforte say the ban is necessary to prevent Americans’ personal information from falling into the hands of the Chinese government. TikTok is owned by the Chinese company ByteDance.
Under the law, TikTok will be fined for operating the app within the state, and app store providers like Google and Apple will be fined if TikTok is available to download in Montana.
On Thursday, TikTok or major civil liberties groups did not announce plans for a lawsuit. Brooke Oberwetter, a spokeswoman for TikTok, declined to comment on the likelihood of the company filing a lawsuit.
But Ms Oberwetter said Wednesday, after the law was signed, that the ban infringed on the First Amendment rights of people in Montana and that the company would continue to “work to uphold the rights of our users.” She said Thursday that a 2020 federal ban failed to pass legal scrutiny and that Montana did not have a viable plan to enact the ban.
Ms. Oberwetter also pointed to statements by digital and civic groups that raise similar concerns.
Ramya Krishnan, an attorney at Columbia University’s Knight Institute for the First Amendment, said the Constitution protects the right of Americans to access the social media platforms of their choice. To justify a ban, Krishnan said, Montana would have to show that its privacy and security concerns were real and could not be more closely addressed.
“I don’t think TikTok has committed to suing yet, but I think it’s likely that they will,” Krishnan said. “Because this is such a dramatic and unconstitutional incursion into Americans’ First Amendment rights, we are certainly considering getting involved in some way.”
NetChoice, a trade group that counts TikTok as a member and has sued in the past to block state laws targeting tech companies, also said in a statement that the ban violated the Constitution. Krista Chavez, a spokeswoman for the group, said NetChoice “currently has no plans to sue” to challenge the law.
Montana’s law came after the federal government and more than two dozen states banned TikTok on government devices in recent months. Lawmakers and intelligence officials have said that TikTok, because of its ownership, could put sensitive user data in the hands of the Chinese government. They have also argued that the app could be used to spread propaganda. TikTok says it has never been asked to provide, nor has it provided, any US user data to the Chinese government.
“Many have hypothesized that China could require ByteDance, TikTok’s parent company, to hand over Americans’ data or use TikTok to fuel disinformation in some way, but neither Montana nor the US government have signaled no evidence that China is actually doing this,” Ms Krishnan said. “That’s a problem because speculative damages can’t justify an outright ban on a communications platform, particularly one used by hundreds of thousands of Montanans on a daily basis.”
In addition to the potential legal fight, many experts raised questions about whether the law could realistically be enforced. Internet users can use virtual private network software to disguise their location. People living in Montana’s border cities could be able to access TikTok and other mobile apps through cell towers in neighboring states.
In an email, Emilee Cantrell, a spokeswoman for the state’s attorney general, said technology existed to restrict app use within a specific location. The technique, known as geofencing, “is already used in the gaming industry,” which is also regulated by the state Department of Justice, Ms Cantrell said.
“A basic internet search will show you companies that are geolocation compliant,” he said. If companies do not comply with the ban, he continued, the agency will “investigate and hold violating entities accountable in accordance with the law.”
The legislation assigns responsibility for enforcing the ban to TikTok, Apple and Google. Under the law, TikTok could be fined $10,000 for each individual violation of the ban and face an additional $10,000 fine for each day the violation continues. Apple and Google would face the same fines if they allowed the app to be downloaded in the state.
As the state legislature considered the ban, a trade group representing Apple and Google said it would be impossible for companies to restrict access to an app within a single state.
“The onus should be on an app to determine where it can operate, not on an app store,” David Edmonson, vice president of TechNet, the trade group that represents app stores, said in a statement Thursday.
Google and Apple declined to comment.