On May 17, 2023, Montana Governor Greg Gianforte signed into law a bill banning the use of the popular app, TikTok, by the general public within the state. Absent court intervention, the ban takes effect on January 1, 2024. While users of the popular app, which is owned by Chinese company ByteDance, can breathe a little easier knowing they will not be liable for accessing the app, TikTok (and mobile stores offering the app to users within the state) will be fined $10,000 for every day its platform operates on devices in Montana. It is unclear from the law’s current text exactly how the State intends to enforce the removal of the app that has already been installed on Montana residents’ devices. Use of TikTok by law enforcement and for security research purposes are exempt from the statewide ban.
Governor Gianforte tweeted that the protection of Montana residents’ personal and private data was a reason for the ban and further called out the “Chinese Communist Party” using TikTok as a spy tool to violate Americans’ privacy. The bill’s text, authored by Montana Attorney General Austin Knudsen, called out similar concerns and noted the need to protect minors from the dangerous activities being promoted on the app, such as pouring hot wax on a user’s face, placing metal objects in electrical outlets, and taking excessive amounts of medication. According to the newly enacted law, if TikTok is acquired by a company “not incorporated in any other country designated as a foreign adversary,” the ban would be void.
The reaction by TikTok to the statewide ban has, unsurprisingly, been negative, with a spokesperson for the app questioning the constitutionality and the mechanics of enforcing the ban. The ACLU and tech trade groups have called the constitutionality of the ban into question, citing First Amendment rights and constitutionally protected speech. Keegan Medrano, policy director at the ACLU of Montana, has raised free speech concerns and Carl Szabo, Vice President and General Counsel at NetChoice, noted his disappointment in Governor Gianforte for signing a “plainly unconstitutional bill.”
Montana is the first state to ban the app’s use by the general public, however, such bans are already in place on government devices and networks throughout the country. To date, the U.S. government and a number of states have enacted TikTok bans on government devices. It remains to be seen what states will follow suit and enact similar bans of the app by the general public on personal devices. What does appear clear is that, despite the current administration’s ongoing negotiations with ByteDance to resolve concerns related to national security, the issue of privacy protection and data security and if or how TikTok does or does not provide either, is far from being resolved.