Montana's first-in-the-nation ban on TikTok blocked by judge who says it's unconstitutional

HELENA, Mont. -- A federal judge blocked Montana's pioneering law to prohibit the video-sharing app TikTok in the state, just a month before its scheduled enforcement. The judge deemed the measure unconstitutional, offering a temporary victory for the social media company, which contended that Montana's Republican-controlled Legislature had gone excessively far in attempting to regulate the app. A final decision will be reached in the future as the legal challenge progresses through the court system.

The Montana House of Representatives approved the ban in May

U.S. District Judge Donald Molloy expressed that the ban "exceeds state authority and violates the Constitutional rights of users and businesses," specifically pointing out the state's focus on alleged Chinese influence.

Molloy stated on Thursday when granting the preliminary injunction, "Despite the state’s attempt to defend (the law) as a consumer protection bill, the current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers. This is especially apparent in that the same legislature enacted an entirely separate law that purports to broadly protect consumers’ digital data and privacy."

Montana legislators passed a groundbreaking law in May, making it the first U.S. state to enact a comprehensive ban on the TikTok app. The rationale behind the ban was the concern that the Chinese government, potentially with access to user data, could exploit TikTok, whose parent company, ByteDance, is headquartered in Beijing.

Originally slated to become effective on January 1, the ban emerged in the wake of a Chinese spy balloon flying over the state a few weeks before it was presented to the Montana Legislature. The prohibition sought to prevent TikTok downloads in the state, imposing a $10,000 daily fine on any "entity" – be it an app store or TikTok – for each instance someone had the opportunity to access or download the app. Users, however, would not face penalties.

To protect Montanans’ personal and private data from the Chinese Communist Party, I have banned TikTok in Montana.

— Governor Greg Gianforte (@GovGianforte) May 17, 2023

Jamal Brown, a spokesperson for TikTok, expressed satisfaction with the judge's decision, stating that “the judge rejected this unconstitutional law and hundreds of thousands of Montanans can continue to express themselves, earn a living, and find community on TikTok.”

In response to the ruling, Emily Cantrell, spokesperson for Montana Attorney General Austin Knudsen, a fellow Republican, attempted to minimize its impact. Cantrell remarked, "The judge indicated several times that the analysis could change as the case proceeds. We look forward to presenting the complete legal argument to defend the law that protects Montanans from the Chinese Communist Party obtaining and using their data."

Concerns have been voiced by Western governments regarding the popular social media platform, fearing that it could potentially expose sensitive data to the Chinese government or be exploited as a tool for spreading misinformation. Chinese law grants the government the authority to instruct companies to assist in intelligence gathering.

More than half of U.S. states, along with the federal government, have prohibited the use of TikTok on official devices. TikTok, in response, has dismissed these bans as "political theatre" and contends that additional restrictions are unwarranted due to its efforts to safeguard U.S. data by storing it on Oracle servers. The company asserts that it has not received any requests for U.S. user data from the Chinese government and affirms it would not comply if such requests were made.

The judge highlighted the core of the dispute, stating, “The extent to which China controls TikTok, and has access to its users' data, forms the heart of this controversy.”

Montana’s TikTok Ban Blocked By Federal Judgehttps://t.co/WBGfa944wV pic.twitter.com/Lg1p03Hj9x

— Forbes (@Forbes) December 1, 2023

During arguments on October 12, attorneys representing TikTok and content creators asserted that the state of Montana had overstepped its bounds in attempting to regulate TikTok. They argued that the state was essentially trying to enact its own foreign policy based on unproven concerns that TikTok might share user data with the Chinese government.

TikTok, as stated in court filings, argued that Montana had the option to restrict the types of data TikTok collects from users instead of implementing a complete ban. Simultaneously, content creators contended that the ban infringes on free speech rights and could potentially result in economic harm to their businesses.

Christian Corrigan, the state's solicitor general, countered that Montana's law primarily addresses "serious, widespread concerns about data privacy" rather than serving as a foreign policy statement. However, U.S. District Judge Donald Molloy noted that the state has not presented any evidence of TikTok's purportedly harmful data practices.

During the hearing, Molloy highlighted that TikTok users willingly consent to the company's data collection policies. He suggested that Montana Attorney General Austin Knudsen, whose office drafted the legislation, could address concerns by airing public service announcements to inform people about the data TikTok gathers.

Support for the legal challenge comes from the American Civil Liberties Union, its Montana chapter, and the Electronic Frontier Foundation, a digital privacy rights advocacy group, all of whom submitted an amicus brief. On the other side, 18 attorneys general from predominantly Republican-led states are backing Montana and urging the judge to permit the law's implementation. However, even if implemented, cybersecurity experts have cautioned that enforcing the law could pose significant challenges.