Montana Banned TikTok: What to Know
Montana Banned TikTok: What to Know
The state of Montana passed a bill banning TikTok. Here's what to know.
Montana, after several months of debate in the legislature, passed a bill to ban TikTok use in the state. Here’s what to know about the legislation — and the expected path forward before it takes effect in January 2024. Brought to you by Global Cyber Strategies, a Washington, DC-based research and advisory firm.
The One-Liner
Montana passed a bill to ban TikTok use in the state, and it raises numerous concerns about technical enforcement and government overreach.
The Ban: What to Know
Montana has been debating a ban on TikTok use in the state and how broadly that legislation should be written. For more on that, see our previous analysis and primer on what you need to know about the saga:
In short, the legislature originally passed a bill focused just on TikTok; before that, it had debated and discarded some particularly concerning ideas, such as requiring internet service providers (ISPs) to filter out traffic to TikTok servers. When the passed bill reached Governor Greg Gianforte’s desk, he proposed amendments to go well beyond TikTok in the bill. That broader approach failed to take hold, and the version now signed into law, as discussed here, focuses back on TikTok.
Upon signing the bill, the governor commented (seemingly, without awareness of the fact that data about Americans is widely available beyond the TikTok platform):
Today, Montana takes the most decisive action of any state to protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party.
The version of SB0419, the bill signed into law, has a few key provisions:
TikTok as a company could not operate in Montana.
Mobile app stores could not allow people in Montana to download the app.
Entities violating these prohibitions would be fined $10,000 for each “discrete violation” and then an additional $10,000 each day it continues thereafter.
The bill explicitly does not apply to TikTok users; the prohibitions and penalties are focused on TikTok and on the mobile app stores hosting the TikTok app.
Penalties do not apply to “law enforcement activities, national security interests and activities, security research activities, or essential government uses permitted by the governor on the information technology system of the state.”
These measures will all take effect on January 1, 2024.
State Device Restrictions in Effect June 1, 2023
After signing the bill, the Montana governor issued a memo to the state’s chief information officer and the executive directors of the state’s agencies. It directed state agencies to prohibit state employees by June 1, 2023 from using apps on government-issued devices when the app has “ties” to foreign adversaries. The applications listed include TikTok (already banned on state devices) and:
CapCut, Lemon8, and TikTok are social media applications whose parent company, ByteDance Ltd., is headquartered in Beijing, China.
Telegram Messenger, which was founded in Russia, is a social media application which the Russian government uses to monitor users and obtain personal, sensitive, confidential information.
Temu is a social media application whose parent company, Pinduoduo, is headquartered in Shanghai, China.
WeChat is a social media application whose parent company, Tencent, is headquartered in Shenzhen, China.
The governor also directed the state officials to take “all necessary steps to block these applications from being accessed” on state devices and networks and to ensure that “third-party firms conducting business for on behalf of the State of Montana shall not use these applications.” On top of the TikTok law, this marks another effort to restrict the usage of non-US apps within the state of Montana.
Now What?
Montana’s TikTok “ban” law is incredibly broad and raises numerous questions about government overreach. The legislature quickly wrote and passed a bill seeking to completely expel a widely used information-delivering platform from the state. Legislators and state officials have not given a substantial explanation of the risks that TikTok use poses to individual citizens, compared to other social media platforms, beyond vaguely discussing “China” and “espionage.” While there are real questions to be asked about Chinese government spying via tech platforms — which is indeed a US national security risk — broad US policy proposals targeted at members of the public (as opposed to, say, federal employees) demand thorough explanation and debate. Montanan legislators have not satisfied that democratic need here.
Further, any policies about non-US technology companies, products, and services also raise numerous complex and important questions about review processes, review transparency, review criteria, opportunities for public and stakeholder input, proportionality, and whether the policy allows for a spectrum of possible responses, among others. The state of Montana has not clearly thought or laid any of that out. Instead, it has charged ahead with attempting to ban TikTok entirely — with seemingly minimal concern for speech implications or the broader privacy context in which TikTok’s data collection sits. And then there are enforcement questions. The state’s goal of understanding whether Montanans are using TikTok could lead to technically intrusive or technically infeasible proposals to monitor devices or online traffic within the state. More legal challenges would then likely follow.
Five TikTok creators already filed a lawsuit challenging the ban, and many more should be expected in the coming weeks. Lawmakers in Montana may soon find their newly signed law overturned in court for a variety of reasons, including possibly First Amendment violations, interstate commerce violations, and violations of the Montana constitution. Its Article V states quite clearly: “The legislature shall not pass a special or local act when a general act is, or can be made, applicable.” Some may argue, as one Montanan legislator did during the bill-writing process, that focusing a law just on TikTok and not on broader data privacy issues could violate this provision.
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