Gov. Greg Gianforte recently signed legislation prohibiting the widely-used social media app TikTok within Montana, aiming to safeguard residents’ privacy and personal data. TikTok, owned by Chinese parent company ByteDance, has gained immense global popularity but sparked concerns over security risks and potential data collection by the Chinese Communist Party (CCP).
Allegations suggest that China exploits TikTok to disseminate targeted information. Former employees disclosed that Top Buzz, a news app within the platform, was transmitting pro-China propaganda to American users. Consequently, US lawmakers called for a federal ban, and Montana joins the growing list of states and federal entities banning the app.
However, Montana’s outright ban on TikTok downloads, coupled with a $10,000 fine for app stores providing the platform to residents, has entered unprecedented legal territory. Although set to take effect in January 2024, the ban already faces First Amendment legal challenges. TikTok officials claim the ban is unlawful and violates Montanans’ rights, while a group of content creators has filed a lawsuit centered on free speech.
Governor Gianforte defends the ban, stating that TikTok breaches Montana’s extensive privacy protections. Nonetheless, critics, including the ACLU, contend that alternative methods could address privacy and security concerns without resorting to an all-out ban.
The repercussions extend beyond privacy and security, as numerous self-employed content creators relying on TikTok to promote their businesses may face economic ramifications. Influencers can earn considerably from branded videos, with the top accounts garnering between $100,000 and $250,000. Montana-based TikToker Kylie Nelson, for example, left her job to become an influencer, anticipating earnings of $60,000 in 2023. The ban has alarmed several Montana TikTok creators, leading five of them to file suit against Attorney General Austin Knudsen.
The future for Montana’s TikTokers remains ambiguous. Although the ban will not be enacted until 2024, legal experts predict constitutional challenges. Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia, opines that the ban might be deemed unconstitutional due to its lack of necessity and tailored interest.
Montana’s TikTok ban faces numerous technical challenges. The law heavily depends on app stores to restrict users, imposing daily fines of $10,000 on TikTok, app stores, and any other entity that enables the download of TikTok in the state. However, Apple and Google argue that preventing Montanans from downloading TikTok requires a total overhaul of their user tracking systems.
App stores currently categorize users by country or global region without distinction between states. To modify this would involve segmenting the stores by state, closely monitoring users’ locations, and creating a dynamic system for situations like cross-state travel. Another option would be to block users based on their account billing addresses, but these can be easily altered and do not reflect an individual’s actual location.
An alternative method would be to estimate a device’s location through IP addresses, which can, however, be easily changed using virtual private networks (VPNs). Such tools allow users to disguise their location, leading to increased searches for VPNs in Montana since the bill’s introduction.
Montana officials liken their proposal to online gambling app restrictions in states where gambling is prohibited. But, such bans depend on app developers voluntarily geofencing and blacklisting states rather than app stores implementing the restrictions. Moreover, these bans are often bypassed.
TikTok claims not to collect precise location data on users; thus, complying with Montana’s law would necessitate tracking users’ GPS data or regularly updating their state of residence.
Wheeler of Red Queen Dynamics says, “Enforcing this ban would create a mirror of the Chinese surveillance state they initially feared, requiring extensive location data and the capability to scrutinize users’ phones.” Apple and Google declined to comment.
The TikTok ban, if it survives legal challenges, could significantly impact Montana’s state. Its stunning landscapes and wildlife have long been popular on TikTok, with prominent tourist attractions garnering millions of views. TikTok has also allowed creators like Hank Green and Christian Poole to educate and entertain millions of followers.
Ban opponents, such as the Electronic Frontier Foundation (EFF), argue that the law infringes on the First Amendment, and are discussing ways to challenge it. Some believe these technical concerns are a distraction from the ban’s ultimate goal: a political move to gain publicity.
Milton Mueller, co-founder of the Internet Governance Project, describes this as “theater” rather than technical ignorance, and questions the ban’s feasibility. He asks, “How do you detect someone running the app in Montana, aside from implementing the ‘Great Firewall of Montana’? Do police stop people in traffic and ask for their phones?”
