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Can Montana really ban TikTok? Here's what to know about its new law

Montana becomes the first U.S. state to ban TikTok. Here's why and when the new law takes effect.
Written by Jada Jones, Associate Editor on
TikTok logo on a phone in front of a background that reads ByteDance
Getty Images/SOPA Images

Montana's governor, Greg Gianforte, signed a bill on Wednesday to effectively ban TikTok in Montana. This bill's success makes Montana the first U.S. state to ban TikTok. The ban will likely receive resistance from opposing politicians, activist groups, and TikTok users to be hashed out in litigation.

In April, lawmakers in Montana's House of Representatives voted 54 to 43 to pass the bill, called SB419. The bill bans TikTok from being downloaded on any electronic device in Montana. SB419 asserts that ByteDance, TikTok's parent company, is an adversary to the state of Montana because of its alleged affiliation with the Chinese government.

Also: The best lights for streaming on Twitch, Youtube, and TikTok

President Joe Biden has also made efforts to ban TikTok in the U.S., backing legislation removing the legal hurdles that prevent the president from banning the app. Opponents of Montana's new law cite that banning TikTok is a First Amendment violation to all Americans.

In an open letter to the Montana State Legislature, the ACLU says SB419 is censorship and sets an "alarming precedent" for the government's ability to control how Americans use the internet. TikTok is pushing back against the Montana ban, saying that the ban is unlawful and infringes on the rights of Montana TikTok users.

Montana's new law is set to be enacted into law beginning January 1, 2024.

What's in Montana's bill that bans TikTok?

SB419 states that TikTok collects data from Montana users and shares data with the Chinese government. Many American lawmakers have suspected the Chinese government has access to U.S. TikTok user data, but it has yet to be formally proven that the Chinese government can or has accessed such information.

Also: TikTok bans explained: Everything you need to know

SB419 cites concerns over children's safety on TikTok, especially highlighting the dangerous "challenges" that circulate on TikTok. SB419 states these challenges include attempting to climb stacks of milk crates, stealing utilities from public places, cooking chicken in NyQuil, and many more. 

SB419 section one declares that an entity will violate Montana's new law by allowing Montana residents the option to download TikTok in a mobile app store. This provision means that the Google Play Store and Apple's App Store will have to pull TikTok from app marketplaces on Montanans' devices to remain in compliance with Montana law. 

Also: Congress proposed two bills to ban TikTok. Here's what they mean

Neither Google nor Apple responded immediately to a request for comment.

What happens if you break Montana's law that bans TikTok?

Nothing -- to TikTok users, at least. Montana's new law does not penalize any of Montana's citizens if they use TikTok once the bill takes effect, signaling that Big Tech and TikTok are the targets of SB419.

SB419 states that any entity, in this case meaning TikTok, Google, or Apple, will be fined $10,000 for "discrete violations" of the law and another $10,000 each day that violation continues.

Also: How to go live on TikTok

In SB419's terms, a discrete violation occurs each time a Montanan accesses TikTok. Another discrete violation is when a Montanan has the ability to access TikTok or download TikTok from a mobile app marketplace. 

So, beginning January 1, 2024, if TikTok doesn't remove itself from mobile app marketplaces on devices in Montana, or Google and/or Apple do not remove TikTok from their mobile app marketplaces, each company will be subjected to hefty fines.

Could Montana's law be repealed or revoked?

SB419 section four states that SB419 will become void if TikTok is acquired by or sold to a company that is an ally of the U.S., echoing the demands of former President Donald Trump when he tried to ban TikTok in 2020

How will Montana enforce this law?

If you use TikTok and you're wondering how Montana lawmakers plan to enforce this law, you're not alone. There are a few theories as to why tech experts, social justice groups, and law scholars believe this law will not be able to move forward.

First, Montana lawmakers cannot prove that the Chinese government has access to or has misused U.S. TikTok user data. In fact, a study conducted by the Georgia Institute of Technology's Internet Governance Project found that TikTok's methods of data harvesting are almost identical to the methods used at Facebook.

Also: 60% of U.S. Twitter users took a break from it in the past year

Without concrete proof that TikTok shares user data with the Chinese government, Montana's law could be declared unconstitutional, Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, told CBS News.

Montana's law will penalize Apple and Google should the companies continue to make TikTok available to download in Montana after January 1, 2024. But a spokesperson from TechNet, a trade group that considers Apple and Google as members, says it's impossible to pull TikTok from one state and keep it available to the rest of the country.

Also: WhatsApp finally gave its users multi-device support, but there's a catch

And how would Montana ensure Montanans don't use a VPN to hide their IP geolocation to still access TikTok? The state can't, according to Recon Analytics telecoms analyst Roger Entner.

Other experts say TikTok's removal from app marketplaces on Montana citizens' devices is a responsibility that legally and ethically rests on TikTok's shoulders, not Apple's or Google's. 

Still, TikTok removing itself from Montana will be a technological feat, according to David Choffnes, the executive director of the Cybersecurity and Privacy Institute at Northeastern University.

Also: Quitting Twitter? How to join a Mastodon server with the official Android app

Choffnes says it will be difficult for TikTok to remove itself from Montana and not accidentally block a TikTok user in another state that uses the same cell provider-issued IP address.

So, Montana's bill will be hard to enforce all around and will likely be an issue that is settled in front of judges.

How are TikTokers fighting back?

Hours after Governor Gianforte signed the bill into law that bans TikTok in Montana, a group of TikTokers filed a lawsuit in the U.S. District Court of Montana. The complaint alleges that the law violates the First Amendment and that the state cannot ban Montanans from lawfully engaging in online speech.

The lawsuit also says Montana's law violates the Fourteenth Amendment because the ban denies TikTok users of their rights without due process. Additionally, the group of TikTokers say the ban is unconstitutional because it allows the governor to act outside of his powers to oversee interstate commerce. 

A spokeswoman for the Montana Attorney General said in a statement that the Attorney General's office expected to be met with legal pushback and is prepared to settle the issue in court. 

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