Montana’s TikTok ban — and the legal challenge of it — explained

Last week, Montana became the first state in the United States to ban TikTok, amid concerns lawmakers have raised over the Chinese government’s potential ability to access the app’s data.

The move — which comes as the federal government and other states have vocalized national security worries about the app — goes much further than existing policies to restrict access to the social media platform. The ban has also faced questions regarding enforcement, and has been legally challenged by TikTok on the grounds that it violates users’ and the company’s First Amendment rights.

The law, which is slated to go into effect on January 1, 2024, focuses on penalizing TikTok as well as app stores that allow users to download the product. If TikTok continues to operate in Montana, it will be fined $10,000 for a user’s initial attempt to access the app, and $10,000 a day for every day it continues to allow that user access. The same goes for Google and Apple: If they allow users to download TikTok in Montana via their app stores, they will have to pay similar penalties. Individual users are not penalized for accessing the app under this law.

The Montana law is the latest indication of US lawmakers’ growing hostility toward the app, which is owned by the China-based company, ByteDance. The new policy follows federal and state bans on the use of the app on government phones due to national security concerns and fears that the Chinese government is using the app to surveil users or distribute misinformation. Montana Gov. Greg Gianforte has said he signed the law to “protect Montanans’ personal and private data from the Chinese Communist Party.” Some lawmakers have also pointed to a 2017 Chinese law that requires the country’s companies to respond to government demands for data related to national security as a reason to limit Americans’ access to the app.

TikTok has pushed back against these critiques, claiming that the Chinese government has not asked the company to hand over data and that it wouldn’t comply even if that did happen. CNN reported that “there is so far no evidence that the Chinese government has ever accessed personal information of US-based TikTok users.” And a 2023 Georgia Institute of Technology report found that TikTok’s data collection efforts were similar to those of other social media platforms, like Facebook, a finding that suggested its practices aligned with those of other tech companies.

The company’s statements and independent reports, however, haven’t reassured lawmakers. And fueling much of this push is the fact that anti-China sentiment has grown recently in the US due to rising geopolitical tensions and intensifying economic competition.

At this point, it’s not clear the ban will have the effect that lawmakers intended. There are ways for users to get around it, and it’s not certain how much tech companies can do to guarantee that residents of one state aren’t able to access or download the app. Additionally, TikTok, as well as the ACLU and other civil rights groups have argued that the ban infringes on users’ free speech; there are an estimated 200,000 TikTok users in Montana and 150 million TikTok users in the US.

“With this ban, [lawmakers] have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment,” Keegan Medrano, a policy director at the ACLU of Montana, said in a statement.

There are outstanding enforcement and legal questions about whether the ban can be implemented effectively or whether it can exist at all.

As written, the law puts the onus on TikTok, as well as on app stores run by Apple and Google, to make sure that Montana users don’t download or access the app. Cybersecurity experts told the Associated Press that it could be tough for app stores to restrict users in a specific state from downloading the app. They noted that there would also be many ways for users to evade these restrictions — including by using a virtual private network, or VPN, that would allow them to mask their IP address and therefore their location.

Additionally, the ban is now being challenged in court. A number of groups and legal experts have echoed the ACLU’s claim that a ban could be viewed as a restriction on people’s ability to exercise free speech via the app. There’s some precedent for that argument preserving access to a foreign-owned app: In 2020, a federal court stopped the Trump administration’s ban of the messaging app WeChat, which is owned by Chinese multimedia company Tencent, after users said it would violate their free speech rights. That same year, a federal court blocked the Trump administration’s attempt to ban TikTok by arguing that it overstepped the scope of presidential powers.

“Montanans are indisputably exercising their First Amendment rights when they post and consume content on TikTok,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, told CBS News. “Because Montana can’t establish that the ban is necessary or tailored to any legitimate interest, the law is almost certain to be struck down as unconstitutional.” Since the ban won’t go into effect until January, it’s possible a judge could block it from ever coming to fruition.

TikTok’s lawsuit against Montana cites this argument and also suggests that the state proposal is preempted by federal law that governs issues like national security. Additionally, it states that the ban is a violation of the Constitution’s commerce clause because it would place a burden on “interstate commerce” and interferes with the app’s availability across states.

“We are challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana,” TikTok spokesperson Brooke Oberwetter said in a statement. “We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts.”

Ultimately, Montana’s ban may prove to be a test case. The way the law is implemented — and considered by the courts — could determine how other states, and even the federal government, approach additional limitations on TikTok moving forward.

Update, May 23, 4 pm ET: This story was originally published on May 18 and has been updated to include the lawsuit TikTok has filed against the Montana ban.