By Caden Pearson
TikTok has filed a lawsuit challenging Montana’s recent ban on the Chinese-owned short-video app in the state.
The ban, scheduled to be enforced from Jan. 1, 2024, is being contested by TikTok Inc. on the grounds that it infringes upon the First Amendment rights of the company and its users.
In the lawsuit filed in the U.S. District Court in Montana, TikTok argues that the ban is in violation of federal law as it encroaches upon matters exclusively under federal jurisdiction. TikTok argues that the U.S. Constitution “vests exclusive authority” over foreign affairs and national security to the federal government, not the states.
Moreover, the lawsuit claims that the ban violates the Commerce Clause of the U.S. Constitution, which restricts states from enacting legislation that excessively burdens interstate and foreign commerce.
Montana is the first U.S. state to attempt to ban TikTok for all users. In 2020, former President Donald Trump sought to prevent new downloads of TikTok and the Chinese-owned messaging app WeChat, along with other transactions involving these companies. However, court rulings prevented these bans from being implemented effectively.
TikTok further argues that the state’s ban specifically targets and penalizes TikTok without justifiable reasons, highlighting that it is solely based on punitive grounds. They assert that the state’s concerns regarding TikTok’s data security and content moderation practices are speculative and unsupported.
From the first day of 2024, unless defeated, the ban will mean that anyone living in or visiting Montana will face stiff penalties of up to $10,000 per day if they access TikTok.
TikTok has a large user base of over 150 million Americans, with the majority being adults. However, the app’s popularity among teenagers is significant, with the Pew Research Center reporting that 67 percent of U.S. teenagers aged 13 to 17 use TikTok, and 16 percent of them use it almost constantly.
TikTok argues that Montana “has enacted these extraordinary and unprecedented measures based on nothing more than unfounded speculation.”
“Specifically, the State claims that the government of the People’s Republic of China (“China”) could access data about TikTok users, and that TikTok exposes minors to harmful online content,” the lawsuit states (pdf).
Yet, TikTok argues, Montana’s bill “cites nothing to support these allegations.”
The company contends that the state’s ban “ignores the reality” that TikTok “has not shared, and would not share” U.S. user data with China.
Further, TikTok argued that it “has taken substantial measures to protect the privacy and security of TikTok users, including by storing all U.S. user data by default in the United States and by erecting safeguards to protect U.S. user data. TikTok has also implemented safeguards to foster a safe environment for all users, including teens.”
Recently, five TikTok users from Montana who create content for the platform filed a lawsuit in federal court seeking to block the state’s ban.
Samantha Alario, Heather DiRocco, Carly Ann Goddard, Alice Held, and Dale Stout argue in their lawsuit that the ban violates their constitutional right to free speech, even if the speech is considered dangerous. They also dispute Montana’s national security justification for the ban.
“Montana has no authority to enact laws advancing what it believes should be the United States’ foreign policy or its national security interests,” the lawsuit states (pdf), “nor may Montana ban an entire forum for communication based on its perceptions that some speech shared through that forum, though protected by the First Amendment, is dangerous.”
The lawsuit draws a parallel, arguing that just as it would be inappropriate to “ban the Wall Street Journal because of who owns it or the ideas it publishes,” prohibiting access to TikTok is unjust and unreasonable.
Gov. Greg Gianforte, a Republican, signed the legislation into law on May 17, making it illegal for TikTok to operate in Montana and for Google and Apple’s app stores to offer TikTok within the state.
The lawsuit filed by TikTok names Montana Attorney General Austin Knudsen, who is responsible for enforcing the ban.
Montana’s Justifications for Ban
Senate Bill 419 provides the reasoning behind the state’s decision to ban TikTok.
The legislation highlights concerns about potential exploitation of the platform by China, viewed as an adversary, for corporate and international espionage purposes. It raises fears that sensitive information, such as the real-time locations of public officials, journalists, and individuals critical of the Chinese Communist Party (CCP), could be obtained.
The bill references warnings from the FBI and Federal Communications Commission regarding national security threats posed by TikTok. These include the potential sharing of user data, such as browsing history and location, with the Chinese regime.
The decision to ban TikTok in Montana was influenced by reports in late 2022 that revealed improper tracking of U.S. journalists by ByteDance staff, utilizing their access to TikTok user data.
Privacy concerns also played a role in Montana’s decision, as the access TikTok has to user data raises apprehensions about the protection of personal information.
Furthermore, the bill points out TikTok’s alleged failure to remove and potentially promote harmful content that encourages minors to engage in risky activities, endangering the health and safety of Montana residents. Examples cited include activities like throwing objects at moving vehicles, self-harm, and other harmful actions.