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Can Montana really ban TikTok? Not according to this US judge

Montana was the first US state to try to ban TikTok. Here's why -- and what a US judge had to say about it.
Written by Jada Jones, Associate Editor
TikTok logo on a phone in front of a background that reads ByteDance
Getty Images/SOPA Images

Earlier this year, Montana's governor, Greg Gianforte signed a bill to effectively ban TikTok in Montana. The bill's passing caused uproar and political discourse regarding its legality. Seven months after the bill passed in Montana's legislature, a federal judge ruled it unconstitutional, saying it "infringes on the Constitutional right of users and businesses." 

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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.

SB419's success made Montana the first US state to pass legislation to ban TikTok. When the bill was passed, it was expected that resistance from opposing politicians, activist groups, and TikTok users would ensue. 

President Joe Biden has also made efforts to ban TikTok in the US, 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.

What's in Montana's bill that would ban 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

What happens if you break Montana's law that would ban 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.

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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, if SB419 ever goes into effect, TikTok, Google and/or Apple would have to remove TikTok from mobile app marketplaces on devices in Montana, or each company will be subjected to hefty fines.

What was the judge's ruling?

Molloy stated in the hearing that Montana's TikTok ban is unconstitutional. In his ruling, he wrote that Montana's legislature was more concerned with targeting China than protecting consumers. He justified that statement by citing that the Montana legislature enacted a different law that aims to protect Montanans' digital privacy. 

Molloy also stated that TikTok users in Montana consent to TikTok's data collection privacy before they use or create an account on the app, and if legislators want to warn Montanans about TikTok's data collection, they should.

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SB419 section four states that SB419 would 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

However, efforts to force TikTok to divest its company to a company aligned with the US government have been futile. 

How would 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: TikTok quietly added a fast-forward option, and it's a game-changer

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. Judge Molloy's decision reflects Jaffer's sentiment.

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.

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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.

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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.

What happens next?

Following the judge's ruling, the office of the Montana Attorney General said in a statement that the decision is "a preliminary matter at this point," insinuating that more litigation is on the horizon.

Congress' bills to remove the legal hurdles surrounding a TikTok ban haven't made any progress, and a lawsuit filed by the state of Indiana against TikTok was dismissed by a judge.

Both cases filed by Montana and Indiana haven't reached a final verdict, and further litigation and legal research are required. Legal experts say that states should propose general laws that protect user data instead of going after TikTok specifically, to avoid violating the Constitution. 

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