Montana Gov. Greg Gianforte has signed the country’s first state-wide ban on TikTok. But questions remain over how the state will enforce the prohibition of the popular social media platform. A lawsuit against the policy has already been filed.
Montana Public Radio’s John Hooks has been tracking the progress of the law and spoke to morning edition host Austin Amestoy about the ban’s uncertain path forward.
Austin: John, I’m sitting here right now scrolling on the TikTok app on my phone. Am I committing a crime?
John: Well Austin, I am happy to assure you that you are not violating this ban. First off, the text of the law clearly states that penalties do not apply to users of the app, the prohibition is aimed at app store providers and TikTok itself. And second, it’s not scheduled to go into effect until January 1st, 2024, if it goes into effect at all. So, you should still have at least a few months of unfettered scrolling.
Austin: Well, that is a relief. But, I heard you say ‘if it goes into effect’. What’s the uncertainty hanging over the ban’s future?
John: Yeah, it’s still unclear how, or if, the state would be able to enforce a ban like this, or if the ban will face a legal challenge. And TikTok could be sold to new owners which would void the law entirely. So, what happens between now and January 2024 is really anyone’s guess.
Austin: Well, let’s step back for a second and talk about how we got here then. Why do supporters of this ban think we need to restrict TikTok?
John: The main thing supporters argue is that it’s a necessary step to protect Montanans’ data privacy. TikTok is owned by a company called ByteDance that is based in China, and antipathy toward the Chinese government is really at the heart of this opposition. Attorney General Austin Knudsen, whose office drafted the bill, called TikTok a “Chinese Communist Party spying tool” and that sentiment was echoed by Gov. Gianforte and legislators.
Austin: Is there evidence that supports that characterization?
John: So, there is no direct evidence that the Chinese government has ever accessed TikTok user’s data. But the app, like all other social media platforms, does collect a ton of user information, and there are laws in China that allow the government to access a company’s customer records.
Austin: I’m thinking about that question of enforceability here, John. Who or what will be in charge of keeping TikTok out of the hands of people in Montana?
John: The text of the law itself is less than three pages long and is very vague in its wording. But it intends to create this ban by imposing fines of $10,000 a day for any instance in which TikTok is available to access online or download from an app store.
Austin: Okay, so the state here is saying these tech companies need to make it so TikTok is unavailable to visit or download inside of Montana, or those companies will face pretty steep financial consequences then.
John: Exactly.
Austin: So have these tech companies said anything about their role in this law?
John: Well, TikTok has obviously been very opposed to this, they called the law unenforceable when it passed the Legislature. And, that sentiment has been echoed by a number of cybersecurity experts, including Tarah Wheeler, who is a Senior Fellow in Global Cyber Policy at the Council on Foreign Relations. She told me the digital infrastructure simply doesn’t exist for this state-level ban to work.
Tarah Wheeler: The technical, underlying elements of how the internet works makes that so unfeasible as to be ridiculous. The app stores for Apple and Google recognize when you go to a different country, based on the infrastructure that it sees you connecting to, but there’s nothing that says ‘hey, I’ve gone from Idaho into Montana. I should change over into only the software that Montana permits me to have on my phone.’
Austin: Those sound like some pretty tough enforcement obstacles. What do the law’s supporters have to say about that?
John: I put that question to the Department of Justice and they’re pretty adamant that the technology to do this does exist. They point to the gambling industry, which does have a big online presence, but is legal in some states and not in others. But that’s not necessarily an apples to apples comparison because there isn’t a single moment of financial transaction in TikTok like there is in a gambling app, when you have to go and place a bet eventually. Gambling companies block that transaction, not the application itself. The TikTok ban aims to stop the application entirely.
Austin: So, how is the state saying it’s going to enforce this?
John: Well, the Department of Justice told me they’re first just going to assume that app stores will comply with the law. After that, the agency plans to be on the lookout for reports that app stores are still keeping TikTok available in Montana. But that still leaves a lot of questions about how the state intends to charge these app stores.
Austin: So are we expecting legal challenges at this point?
John: After the law was signed (May 18th), five Montana-based TikTok creators filed a lawsuit in District Court, arguing the law represents an unconstitutional violation of free speech. There’s also a provision in the law that could void the ban if TikTok is sold. And the federal government is trying to force a sale with its own threat of a nationwide ban.
Austin: Well, it sounds like we really are in some uncharted waters here. But my big takeaway still is that TikTok remains legal to use in Montana at this point.
John: Yes, that’s right. Scrolling remains legal, and the law isn’t effective until the start of next year.
Austin: Well, thank you for the legal explainer John.
