Woman hands using smartphone showing TikTok ban lawsuit

ByteDance Responds to Montana TikTok Ban With Lawsuit

The Montana TikTok ban is now facing a lawsuit from parent company ByteDance, on the basis of violation of Constitutional rights and assorted federal laws.

The ban is not slated to take effect until January 2024, and legal challenges were expected in the interim. TikTok’s lawsuit, which seeks to enjoin the ban, is actually the second filed thus far. A group of content creators has filed suit on the basis of First Amendment violations and loss of their livelihood.

Montana TikTok ban will have to survive multiple court challenges

The issue that the TikTok ban centers on is the potential for the Chinese government to access the personal data that the app collects, rather than any concrete indication as of yet that this has been happening. Among other things TikTok will argue that the state does not have a suitable legal foundation to claim that there is a national security risk, and that the ban is in violation of Commerce Clause terms preventing undue burdens on interstate and foreign business.

TikTok claims that it has 150 million users in the US, or nearly half the country’s total population. While Montana is not one of the more populous states, the company says that the proposed TikTok ban puts hundreds of thousands of users on the line. Several of those filed suit in the U.S. District Court in Montana last week, arguing that the state does not have the Constitutional authority to ban protected speech by way of banning a popular online platform. TikTok users that have at least 10,000 followers also have monetization options available to them, and some of the plaintiffs draw a substantial portion of their regular income from the platform.

A Montana TikTok ban would force the Google and Apple app stores to de-list the app in the state, and the company could face fines of $10,000 per violation in addition to $10,000 per day that the app continues to be available. Google and Apple have not commented on the case as of yet.

State-level TikTok bans face numerous obstacles

Most state governments and all federal agencies are now subject to a TikTok ban, but those are a matter of a simple directive based on clear-cut national security concerns. The issue becomes much more complex when the general public is involved, as the Trump administration learned in 2020 when it sought to remove both TikTok and WeChat from the country. WeChat was successful in obtaining an injunction in district court based on a First Amendment argument and the possibility of disproportionate harm being inflicted on the minority Chinese community living in the US.

This chain of events led to TikTok’s deal with the US government to address security concerns and continue doing business in the country. The present centerpiece of this agreement is “Project Texas,” a $1.5 billion restructuring plan that essentially silos US user data on Oracle-run servers in the country and prevents remote access by employees in China except in very limited circumstances of necessity. Continuing misfires in this strategy is what has prompted the recent wave of TikTok bans, however. Leaks in 2022 revealed that Chinese engineers continue to have a great degree of autonomous access to US user data, and that several employees were fired after monitoring the accounts of US journalists that had made contact with potential internal whistleblowers.

Other states are likely watching the case closely. If Montana’s TikTok ban does survive this legal gauntlet, it then runs into the issue of implementation. Apple and Google have made clear that their app stores are organized by country, and could not readily implement state-by-state app bans. Apps that are limited to certain states, such as those with casino gambling or sports betting, are generally available throughout the country but require precise tracking of user devices (using techniques such as pinging phones from local cell towers) to enable access to the “real money” betting area. Casinos implement this willingly on their end to comply with mandatory local regulations, but TikTok’s situation would be quite different. Similar legal issues would arise if the state attempted to subpoena the app or the app stores for private user information, or if it attempted to engage Montana ISPs in some sort of banning or monitoring scheme. Most of these attempts would also be rendered pointless by VPN use, which is extremely affordable.

The TikTok ban issue could also be swiftly resolved if ByteDance opts to sell operations to a US company, something the Biden administration  has said it may force the company to do in the near future. Sale to a US partner would negate the Montana ban given that the central rationale, the threat of data transfer to China, would no longer be possible. The administration has threatened a ban at some point if this does not transpire, but has yet to set any kind of a timeline or deadline.

Rodman Ramezanian, Global Cloud Threat Lead for Skyhigh Security, notes that such a mandatory “onshoring” is probably necessary for organizations to ease up on regarding TikTok as a threat to business: “When it comes to protecting data, any individual or organization should be concerned about the security risks of TikTok, especially given the continued proliferation of bring your own device (BYOD) and third-party workers. The lines between corporate and personal use of devices are more blurred than ever before, and where TikTok is concerned, this opens the door to the potential of data theft or misuse. Today, the scale of platforms connected through authentication tokens and single sign-on integrations create substantial risk to organizations.