After the upcoming New Year’s Eve celebrations are done, Montana residents will no longer see TikTok available on app stores. The TikTok ban was signed into law by Gov. Greg Gianforte, who had previously banned the app from state government devices in December.
A nationwide TikTok ban has been floated by the Biden administration, but that could be headed off if owner ByteDance sells the operations to a United States-based company. The Montana bill might also still be headed off by a legal challenge from TikTok, which is expected to take the case to federal court.
Montana becomes first state to implement TikTok ban; app remains available until January 1, 2024
Montana’s Senate Bill 419 is predicated on the same concerns that have prompted federal-level calls for a TikTok ban, primarily the Chinese government’s potential access to user data. There remains no definitive evidence that the ruling party has accessed foreign TikTok user data, but the country’s national security laws require anything stored on servers within its borders to be turned over upon demand with no real due process or independent oversight.
The state’s TikTok ban is the first of its kind to become law. If it survives the inevitable legal challenges, the app will have to be taken off of the Google and Apple app stores. Any platform continuing to make the app available could face fines of up to $10,000 per day. TikTok has not committed to filing a lawsuit as of yet, but responded with a statement saying that it believes the bill is in violation of the First Amendment.
Right now, TikTok is the only app specifically being named, but the governor’s prior ban on state government devices extended to any app that sends personal information to countries designated as a “foreign adversary.”
Though TikTok has not yet commented on a lawsuit, a group of five of the platform’s content creators are already challenging the Montana ban in court. The group claims First Amendment violations and that the state is overreaching in invoking national security powers it does not actually possess, and seeks to have the TikTok ban blocked.
Gareth Lindahl-Wise, CISO at Ontinue, thinks that this may emerge as a national issue as the campaigns for the 2024 election begin to spin up: “There is an interesting collision of national and international politics and cyber security. One strand is freedom of speech versus protection from manipulating bias. With the US election machine coming back to life, there will be growing concerns of the potential for foreign governments to be able to influence what citizens see on their social media platforms. It would not be too surprising to see other states follow suit – but where the boundaries of what constitutes something to be banned and something to be allowed lie will become highly charged. TikTok is starting to see more ‘traditional’ resistance to the app being used due to concerns of meta data and profiling information being used.”
Can a state-specific TikTok ban be enforced?
To date, US TikTok bans have been limited to state governments and federal agencies, where a unilateral prohibition on the app is much easier to put in place. The idea of a nationwide ban for consumers was first floated under the Trump administration in 2020, ultimately headed off by promises from ByteDance to isolate China’s operations from the rest of the world, and then recently revived by the Biden administration after a string of failures by TikTok to keep their word.
Though there is bipartisan support for a national TikTok ban, there is also bipartisan opposition. Some of that comes from genuine free speech concerns, but some is also simply due to the app’s ubiquity and popularity; TikTok claims that nearly half of the full population of the country now uses it. Many people use it as at least a sideline revenue source, earning from livestreams and ads via the TikTok Creator Fund (available to Pro users with at least 10,000 followers). The biggest TikTokers earn over $10 million per year from the platform.
Other states will likely wait to see how the Montana TikTok ban unfolds (and what action the federal government ultimately takes) before proceeding with their own actions. The bill has dicey chances of surviving its legal challenges, but if it does there remains the question of effective enforcement. Penalizing individual users is effectively impossible under the law, and there would likely be a rush to download the app prior to the ban kicking in. This would lead to users with permanently outdated versions that could prevent a security risk, as well as sideloading in an attempt to install it after the ban.
Montana’s only chokepoint of enforcement is the two major app stores, which would essentially be asked to employ geofencing (of the sort used by online casinos) to ensure users are not in Montana and are not using a VPN or proxy to misrepresent their location. It is unclear whether this is even possible on these platforms the way they are constructed, and at minimum would be a considerable extra expense that might draw Google and Apple into the legal battle. And attempting to block at the ISP level would draw even more legal wrangling and pushback from powerful entities.
Paul Bischoff, Consumer Privacy Advocate at Comparitech, believes any state TikTok ban for the general public has no chance of holding up and will not even make it to the point of going active in 2024: “Montana’s ban on TikTok is a publicity stunt that will never be upheld in court. It’s a clear violation of First Amendment rights, cannot be enforced, and has no basis in fact. Gianforte is trying to stir up anti-China sentiment among his base. TikTok doesn’t pose any more threat to an average person than any other social network. I understand if you want to ban TikTok on government devices, but banning it on personal devices is never going to work, technically or legally.”
Chris Vaughan, VP of Technical Account Management at Tanium, additionally notes that Montana will face a legal burden of demonstrating that the claimed threat from China actually exists and that it cannot be addressed with a less invasive measure than a consumer ban: “The ban boils down to concerns about whether there is enough separation between TikTok and the Chinese government. While this is hard to determine, we do know that the Chinese government has a history of cyber espionage and intelligence gathering for the purpose of supporting its strategic objectives. We also know that by accepting the TikTok terms and conditions, users are authorising access to a huge amount of their data. There’s also a concern that TikTok, under the influence of the CCP, will tweak algorithms to display content designed to alter political opinions and deepen divisions in society. What’s interesting is that in the specific case of Montana, TikTok will be banned from appearing on app stores – but those with TikTok already installed are free to continue using it. This does pose the question of how effective the ban will be in defending against the concerns expressed by the state of Montana.”