Montana on Wednesday became the first state in the country to ban TikTok. But experts say you shouldn’t expect the measure to survive challenges in the courts.
In addition to the technical difficulties of banning an app in a specific geographic location, the law, SB 419, likely violates Montana residents’ First Amendment rights.
“The ban is a dramatic and unconstitutional incursion on the First Amendment rights of Montanans,” Ramya Krishnan, staff attorney at the Knight First Amendment Institute and a lecturer in law at Columbia Law School, told Yahoo Finance. “To justify the ban, Montana would have to show that it's necessary to prevent actual harms. And it hasn't done this.”
The law, which goes into effect Jan. 1, 2024, would hold companies like Apple (AAPL) and Google (GOOG, GOOGL) liable if they make TikTok available for download in the state. Each violation would cost the companies $10,000 per user and an additional $10,000 for each day the app remains available.
In a statement after signing the bill, Gov. Greg Gianforte said the Chinese Communist Party is using TikTok to “spy on Americans, violate their privacy, and collect personal, private, and sensitive information.”
The broader problem for Montana’s law, experts say, is that it’s simply too broad.
“The legal hurdle is the First Amendment,” David Greene, civil liberties director and senior staff attorney for the Electronic Frontier Foundation, explained via email. “This law, as a restriction on the way Montanans speak and receive speech, will need to be justified by the state as an appropriately narrow and effective way of protecting Montanans’ personal data. That will be very difficult to do.”
The US has long accused TikTok of collecting data on Americans and feeding it to the Chinese government. Reasons include, potentially, building a database on American users, storing data to blackmail citizens, or trying to spread disinformation online.
The main fear is that China can use its national intelligence law to force TikTok parent company ByteDance to turn over any data on American users to the Chinese government. TikTok, however, has said it has never shared information with the Chinese government.
To assuage US fears that China can gain access to Americans’ user data, TikTok is working with Oracle (ORCL) to move all US user data to that company’s servers. The cloud provider will also audit TikTok’s code. But according to Bloomberg, that process is on hold.
Neither the US government nor Montana has provided concrete evidence that China is siphoning American user data from TikTok. And that’s a major problem for the new law. “Speculative harms can't justify a total ban on a communications platform, let alone one that is used by…Americans in the state of Montana,” said Krishnan.
Even enforcing the ban could prove problematic for Montana. If the state chooses to determine residents’ locations based on their internet protocol addresses, they could accidentally block citizens of bordering states from downloading TikTok, as well. Montanans could also use virtual private networks to mask their location and download the app anyway.
Rather than outright banning TikTok, experts say the best way to address concerns that the company is harvesting Americans’ data is through a national data privacy law. Congress has discussed the topic for years without passing any legislation.
“First look at passing a federal privacy law…to ensure that there are specific limits and rules for the road of how any online service, TikTok included, can collect and use and share people's personal information,” Emma Llansó, director of the Center for Democracy and Technology's Free Expression Project told Yahoo Finance.
“That would be an enormous step forward for people's privacy, and would not require banning any apps whatsoever.”
According to Llansó, the government could also put restrictions on how data brokers in the US share Americans’ information.
“They could put limits on that or put a stop to that, and that would be a much more meaningful way to protect the safety and security of people's data from foreign government surveillance,” she explained.
Regardless, we won’t have to wait long to find out how Montana’s ban will fare in the courts. According to Reuters, a group of five Montana TikTok users are already suing the state to block the ban.
The clock is ticking.
Daniel Howley is the tech editor at Yahoo Finance. He's been covering the tech industry since 2011. Follow him @DanielHowley
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