Montana says 1st-in-nation TikTok ban protects people. TikTok says it violates their rights

TikTok has been recruiting so-called influencers and small businesses who use the platform to push back on a ban. (AFP/File)

• Measure due to take effect on Jan. 1, 2024 is expected to be challenged in court
• Governor also announced ban of all social media applications tied to foreign adversaries on state devices

HELENA: Montana became the first state in the US to enact a complete ban on TikTok on Wednesday when Republican Gov. Greg Gianforte signed a measure that’s more sweeping than any other state’s attempts to curtail the social media app, which is owned by a Chinese tech company.
The measure, scheduled to take effect on Jan. 1, 2024, is expected to be challenged legally and will serve as a testing ground for the TikTok-free America that many national lawmakers have envisioned. Cybersecurity experts say it could be difficult to enforce the ban.
“Today, Montana takes the most decisive action of any state to protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party,” Gianforte said in a statement.
TikTok spokesperson Brooke Oberwetter argued that the law infringes on people’s First Amendment rights and is unlawful. She declined to say whether the company will file a lawsuit.
“We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana,” Oberwetter said in a statement.
The American Civil Liberties of Montana and NetChoice, a trade group that counts Google and TikTok as its members, also called the law unconstitutional. Keegan Medrano, policy director for the ACLU of Montana, said the Legislature “trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information and run their small business, in the name of anti-Chinese sentiment.”
Some lawmakers, the FBI and officials at other agencies are concerned the video-sharing app, owned by ByteDance, could be used to allow the Chinese government to access information on US citizens or push pro-Beijing misinformation that could influence the public. TikTok says none of this has ever happened.
A former executive at ByteDance alleges the tech giant has served as a “propaganda tool” for the Chinese government, a claim ByteDance says is baseless.
When Montana banned the app on government-owned devices in late December, Gianforte said TikTok posed a “significant risk” to sensitive state data. More than half of US states and the federal government have a similar ban.
On Wednesday, Gianforte also announced he was prohibiting the use of all social media applications tied to foreign adversaries on state equipment and for state businesses in Montana effective on June 1. Among the apps he listed are WeChat, whose parent company is headquartered in China; and Telegram Messenger, which was founded in Russia.
The legislation, drafted by the attorney general’s office, easily passed through Montana’s GOP-controlled Legislature.
Gianforte had wanted to expand the TikTok bill to include apps tied to foreign adversaries, but lawmakers did not send him the bill until after the session ended this month, preventing him from offering any amendments.
Montana’s new law prohibits downloads of TikTok in the state and would fine any “entity” — an app store or TikTok — $10,000 per day for each time someone “is offered the ability” to access the social media platform or download the app. The penalties would not apply to users.
Opponents say Montana residents could easily circumvent the ban by using a virtual private network, a service that shields Internet users by encrypting their data traffic, preventing others from observing their web browsing. Montana state officials say geofencing technology is used with online sports gambling apps, which are deactivated in states where online gambling is illegal.
Though many lawmakers in Montana have been enthusiastic about a ban, experts who followed the bill closely said the state will likely have to defend the legislation in court.
Officials are also bound to receive criticism from advocacy groups and TikTok users who don’t want their favorite app to be taken away. The app’s fun, goofy videos and ease of use has made it immensely popular, and US tech giants like Snapchat and Meta, the parent company of Facebook and Instagram, see it as a competitive threat.
TikTok has been recruiting so-called influencers and small businesses who use the platform to push back on a ban. But others who haven’t been part of an official campaign coordinated by the company are also worried about what lawmakers are doing.
Adam Botkin, a former football player and recent graduate at the University of Montana, said it was a scary time for him as a content creator in Montana. The 22-year-old has nearly 170,000 followers on TikTok, where he mostly posts short videos of himself performing football kicks.
He says he sometimes makes “tens of thousands” of dollars per month from brands looking to market their products on his social media accounts, including Instagram, where he has roughly 44,000 followers.
Botkin says most of his income comes from Instagram, which is believed to be more lucrative for content creators. But he has to grow his following on that platform — and others — to have the same level of popularity that he does on TikTok. He says he’s trying to do that and won’t try to circumvent the TikTok ban by using a VPN.
“You got to adapt and evolve with how things move,” Botkin said. “So, if I have to adapt and move, I’ll adapt.”
Chatter about a TikTok ban has been around since 2020, when then-President Donald Trump attempted to bar the company from operating in the US through an executive order that was halted in federal courts. President Joe Biden’s administration initially shelved those plans, but more recently threatened to ban the app if the company’s Chinese owners don’t sell their stakes.
TikTok doesn’t want either option and has been clamoring to prove it’s free of any Chinese government interference. It’s also touting a data safety plan it calls “Project Texas” to assuage bipartisan concerns in Washington.
At the same time, some lawmakers have emerged as allies, arguing efforts to restrict data harvesting practices need to include all social media companies, not just one. Republican Sen. Rand Paul of Kentucky blocked a bill in March that would ban TikTok nationally, saying such a move would violate the Constitution and anger the millions of voters who use the app.
Montana’s TikTok ban also comes amid a growing movement to limit social media use among kids and teens and, in some cases, impose bans. Several bills circulating in Congress aim to get at the issue, including one that would prohibit all children under the age of 13 from using social media and require permission from a guardian for users under 18 to create an account.
Some states, including Utah and Arkansas, have already enacted laws that would hinge social media use on parental consent. Similar bills are in the works in other states. Last year, California enacted a law requiring companies to beef up data protection practices for children and offer them the highest privacy settings.