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Montana became the first US state on Friday to pass legislation banning TikTok on all personal devices, sending a bill to Gov. Greg Gianforte prohibiting TikTok from operating within state lines and barring app stores from offering TikTok for downloads.
The legislation marks the furthest step yet by a state government to restrict TikTok over perceived security concerns and comes as some federal lawmakers have called for a national ban of TikTok.
Lawmakers in Montana’s House voted 54-43 to give final approval to the bill, known as SB419. Should Gianforte sign the bill, it would take effect in January. But the legislation could quickly face significant legal challenges.
The legislation specifically names TikTok as a target of the bill, and outlines potential penalties of $10,000 per violation per day. The penalties would also apply to any app store found to have violated the law. Individual users of TikTok, meanwhile, would not be penalized for accessing TikTok.
“The governor will carefully consider any bill the legislature sends to his desk,” said Brooke Stroyke, a spokesperson for Gianforte. In December, Gianforte banned TikTok from state government devices and the following month urged the Montana University System to follow suit, which it did.
In a statement, TikTok hinted at potential legal action to oppose the bill.
“The bill’s champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bill’s constitutionality will be decided by the courts,” said TikTok spokesperson Brooke Oberwetter. “We will continue to fight for TikTok users and creators in Montana whose livelihoods and First Amendment rights are threatened by this egregious government overreach.”
Numerous governments worldwide, including in the United States, have used their authority over official devices they control to restrict TikTok from smartphones, computers and WiFi networks. But those restrictions do not extend to personal devices.
US officials have widely expressed fears the Chinese government could potentially gain access to TikTok user data through its links to TikTok’s parent, ByteDance, and that such information could be used to benefit Chinese intelligence or propaganda campaigns. There is so far no public evidence the Chinese government has in fact accessed the personal information of TikTok’s US users or used that data to influence them. But FBI Director Christopher Wray has told Congress that “we’re not sure that we would see many of the outward signs of it happening if it was happening.”
The US government has called for TikTok to be spun off from its Chinese owners, while TikTok has said that it can address the national security concerns by erecting a “firewall” around US user data, part of an initiative it calls Project Texas.
The plan has not deterred TikTok’s critics, however. More than half of US states have clamped down on TikTok in some fashion, and Friday’s House vote in Montana underscored the breadth of support for limiting TikTok on even non-government devices.
But the future of Montana’s legislation is uncertain. NetChoice, a technology industry group that counts TikTok as a member, said Friday that SB419 violates the US constitutional prohibition against so-called “bills of attainder,” or legislation that seeks to punish a person without trial.
“This move from the Montana legislature sets a dangerous precedent that the government can try to ban any business it doesn’t like without clear evidence of wrongdoing,” said Carl Szabo, NetChoice’s vice president and general counsel. “The US Constitution clearly forbids lawmakers from passing laws to criminalize a specific individual or business. Gov. Greg Gianforte should veto this clearly unconstitutional law.”
Design it For Us, a coalition of youth activists pushing for changes to platform regulation, lamented that the perspectives of internet natives were not reflected in the bill.
“We believe that social media can be good for young people if they are designed for us,” said Zamaan Qureshi and Emma Lembke, the group’s co-chairs. “Bans like this one forgo a real opportunity to proactively address kids’ safety and privacy concerns on these platforms.”
A group representing app developers said Friday the bill could encourage governments to legislate on an app-by-app basis, creating a patchwork of laws that would “weigh heavily on small app companies.”
“While it might begin with TikTok, it clearly won’t end there,” said Morgan Reed, president of The App Association, which receives more than half its funding from Apple.
Other civil society groups have alleged SB419 violates Montanans’ First Amendment rights to free expression and access to information. This week, a joint letter to state lawmakers led by the American Civil Liberties Union argued that there is a high constitutional bar for government restrictions on speech.
“SB 419 is censorship — it would unjustly cut Montanans off from a platform where they speak out and exchange ideas everyday, and it would set an alarming precedent for excessive government control over how Montanans use the internet,” the letter read.
The legislation also references the presence on TikTok of “dangerous content” and “dangerous challenges,” language that Lynn Greenky, a First Amendment scholar and associate professor at Syracuse University, said raises an instant “red flag” triggering stricter constitutional scrutiny.
“Only in exceptional circumstances will content-based restrictions be constitutionally permissible under the First Amendment,” Greenky said. “Certainly, the Montana government has a compelling state interest in protecting the health, welfare, and privacy of its citizens, but the statute is so vague that it is virtually unenforceable. A vague statute is, by definition, not narrowly tailored, and as such it will wither under First Amendment scrutiny.”