Montana is banning TikTok. However can the state implement the legislation and fend off a lawsuit?

NEW YORK (AP) — Montana’s first-of-its type legislation that makes it unlawful for residents to make use of TikTok within the state is already dealing with its first authorized problem with a lawsuit filed by 5 individuals who use the app and argue the legislation is an unconstitutional violation of free speech rights.

Montana Republican Gov. Greg Gianforte signed it into legislation Wednesday anticipating a authorized struggle would observe. The legislation, which isn’t scheduled to take impact till Jan. 1, 2024, additionally faces a litany of questions over whether or not the state may even implement the legislation.

The brand new guidelines in Montana can have extra far-reaching results than TikTok bans already in place on government-issued gadgets in almost half the states and the U.S. federal authorities. There are 200,000 TikTok customers in Montana in addition to 6,000 companies that use the video-sharing platform, in line with firm spokesperson Jamal Brown.

Right here’s what you want to know:


Proponents of the legislation in Montana declare the Chinese language authorities might harvest U.S. consumer information from TikTok and use the platform to push pro-Beijing misinformation or messages to the general public.

That mirrors arguments made by a bipartisan group of lawmakers within the U.S. Senate, in addition to the heads of the FBI and the CIA, all of whom have stated TikTok might pose a nationwide safety risk as a result of its Beijing-based dad or mum firm ByteDance operates below Chinese language legislation.

Critics have pointed to China’s 2017 nationwide intelligence legislation that compels corporations to cooperate with the nation’s governments for state intelligence work. One other Chinese language legislation, carried out in 2014, has comparable mandates.

TikTok says it has by no means been requested at hand over its information, and it wouldn’t achieve this if requested.


5 plaintiffs who’re all TikTok creators from Montana argue the legislation is an unconstitutional violation of free speech rights. Additionally they contend the state doesn’t have authority over issues of nationwide safety.

“Montana can no extra ban its residents from viewing or posting to TikTok than it might ban the Wall Road Journal due to who owns it or the concepts it publishes,” the grievance stated.

The individuals suing embody one with a swimwear enterprise, one who connects with navy veterans, one who shares movies about ranch life, one other who shares her outside adventures and one who shares humorous movies.

Emily Flower, spokeswoman for the Montana Division of Justice, stated the state anticipated a authorized problem and it’s “absolutely ready to defend the legislation.”

TikTok has argued that the legislation infringes on individuals’s First Modification rights. However spokesperson Brooke Oberwetter declined to touch upon the lawsuit and in addition declined to say whether or not the corporate helped coordinate the grievance filed by the TikTok content material creators.

The case might function a testing floor for the TikTok free America many nationwide lawmakers have envisioned.


The legislation will prohibit downloads of TikTok within the state and advantageous any “entity” — an app retailer or TikTok — $10,000 per day for every time somebody accesses TikTok, “is obtainable the flexibility” to entry it, or downloads it.

Meaning Apple and Google, which function app shops on Apple and Android gadgets, could be answerable for any violations. Penalties wouldn’t apply to customers.

The statewide ban received’t take impact till January 2024. It could be void if the social media platform is bought to an organization that isn’t based mostly in “any nation designated as a international adversary” by the federal authorities.

The governor indicated he needs to develop the invoice to different social media apps with the intention to tackle a number of the invoice’s “technical and authorized issues.” However the legislature adjourned earlier than sending him the invoice, which meant he couldn’t supply his amendments.

Montana Legal professional Common Austin Knudsen has pointed to know-how used to limit on-line sports activities playing apps as a option to curtail TikTok from working within the state. These violations could be reported by anybody. And as soon as the state verifies a breach has taken place, it sends a cease-and-desist letter to the corporate concerned, stated Kyler Nerison, a spokesperson for Knudsen’s workplace. He stated completely different corporations use completely different strategies for compliance and it’s as much as them “to not enable their apps to work in Montana and different states the place they don’t seem to be authorized.”


Cybersecurity consultants say that, apart from avoiding the advantageous, there’s nothing incentivizing the businesses concerned to conform and will probably be extraordinarily tough — if not not possible — to adequately implement the legislation.

For one, the U.S. doesn’t have something equal to the kind of management international locations like China have on what their residents entry on the internet. Compounding that, web service suppliers are out of the image.

Earlier than the Montana legislation handed, lawmakers rewrote parts of the invoice to allow them to off the hook after a lobbyist for AT&T stated throughout a February listening to the laws was “not workable” to implement.


Apple and Google haven’t spoken out towards the legislation. However a consultant for TechNet, the commerce group that counts the 2 tech giants as its members, has stated app shops don’t have the flexibility to “geofence” apps in several states and it could be not possible to forestall TikTok from being downloaded in Montana. The group has additionally stated the duty needs to be on an app to find out the place it may function, not an app retailer.

Telecoms analyst Roger Entner, of Recon Analytics, says he believes the app shops might have the aptitude to implement the legislation, however it could be cumbersome to implement and filled with loopholes. Apple and Google’s address-linked billing could possibly be bypassed with pay as you go playing cards and IP geolocation simply masked through the use of a VPN service, which might alter IP addresses and permits customers to evade content material restrictions, stated cell safety professional Will Strafach, the founding father of Guardian, which makes a privateness safety app for Apple gadgets.

Oded Vanunu, head of merchandise vulnerability analysis on the cybersecurity agency Examine Level, agreed it could be tough for app shops to isolate a single state from downloading an app. He prompt it could be extra possible for TikTok to conform because it controls the software program and may “modify the settings based mostly on the geographical location or IP addresses” of customers.


When customers enable TikTok to gather their location info, it may observe an individual to not less than 3 sq. kilometers (1.16 sq. miles) from their precise location. If that function is disabled, TikTok can nonetheless gather approximate location info – such because the area, metropolis or zip code by which a consumer could also be situated – based mostly on system or community info, like an IP tackle.

However just like the app shops, cybersecurity consultants be aware that any enforcement measures the corporate implements could possibly be simply bypassed with a VPN and efforts to make use of IP geolocating may result in different points.

David Choffnes, the chief director of the Cybersecurity and Privateness Institute at Northeastern College, stated cell suppliers might use the identical sorts of IP addresses for a number of states, which might imply somebody who is just not in Montana might incorrectly be blocked from utilizing TikTok.


AP Expertise Author Frank Bajak contributed to this report from Boston.

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