Why Montana’s TikTok Ban May Not Work | CNN Business

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Montana has become the first US state to ban TikTok on all devices, including personal ones, raising renewed doubts about the future of the short-form video app in the country.

On Wednesday, the state’s governor, Greg Gianforte, signed a bill that would fine TikTok and online app stores for making the service available to state residents. It will come into effect next year.

The move goes one step further than other states that have restricted TikTok from government devices. It also comes at a time when some federal lawmakers are pushing for a nationwide ban.

But legal and technology experts say there are big hurdles for Montana, or any state, to enforce this law. The TikTok ban immediately sparked a lawsuit from TikTok users who claim it violates their First Amendment rights, and more legal challenges were expected. Even if the law allows, the practicalities of the internet can make it impossible to keep TikTok out of users’ hands.

Montana’s new law, SB419, makes it illegal for TikTok and app marketplaces to offer the TikTok service across state lines.

Passed in April, the bill establishes fines of $10,000 per violation per day, where a single violation is defined as “each time a user accesses TikTok, is offered access to TikTok, or is offers the ability to download TikTok.”

Under the law, individual users would not be on the hook just for accessing TikTok.

If the law survives the courts, TikTok and companies like Apple and Google could be forced to find ways to restrict TikTok to smartphone users in Montana, or face huge fines.

But that’s a big yes.

TikTok and other civil society groups warn that the law as written is unconstitutional. There are two main arguments cited by proponents of TikTok.

One is that the law violates the First Amendment rights of Montanans, by restricting their ability to access legal speech and by infringing on their own free speech rights through enforcement.

On Thursday, the American Civil Liberties Union accused Gianforte and the state legislature of “trampling on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information and run their small business in name of the fight against Chinese Sentiment”.

A group of TikTok users echoed that complaint in a lawsuit filed Wednesday evening in the U.S. District Court for the District of Montana, hours after the governor’s signature. “Montana cannot prohibit its residents from viewing or posting on TikTok any more than it could prohibit the Wall Street Journal because of who owns it or the ideas it publishes,” according to the complaint.

Another complaint is that the law represents an unconstitutional “declaration of violation,” or a law that penalizes someone who is not in due process.

NetChoice, an industry trade group that counts TikTok as a member, said the bill “ignores the US Constitution.”

“The government may not block our ability to access constitutionally protected speech, whether in a newspaper, on a website or through an app,” said Carl Szabo, general counsel of NetChoice.

A spokesman for Gianforte did not immediately respond to a request for comment.

Even if the law survives a legal challenge, experts say its vagueness could hinder effective implementation and enforcement.

“What it really does is create a lot of potential liability for both TikTok and the mobile app stores,” said Nicholas Garcia, policy adviser for the consumer advocacy group Public Knowledge. “And what they’re requiring them to do is find out, under the threat of Montana coming in and saying, ‘You haven’t been following the law.'”

It’s unclear how, exactly, Montana officials might determine the breach.

Authorities could try to subpoena TikTok or the app stores for information about users who have accessed or downloaded TikTok from the state, but those requests would not capture the many people likely to circumvent the ban.

Virtual private network (VPN) services would make it trivial for users to circumvent the restrictions, according to Evan Greer, director of Fight for the Future, a consumer advocacy group. A VPN could make a user in Montana appear as if they were connected to the Internet from across state lines.

“Any teenage anime fan or British TV buff can tell you how to get around such a silly ban by using a VPN,” Greer said.

Officials could try to widen their dragnet by asking companies to use additional data they have about their users to make inferences about who can access TikTok. But depending on the scope of that request, it could raise legal objections and privacy concerns, if the additional data is even available.

Requiring Internet providers to implement statewide network filters could be another way to enforce the law, Garcia said. But internet providers are not named as a type of entity subject to TikTok’s ban.

“So the only reason they would get involved would be if TikTok or Apple and Google wanted them to,” Garcia said, “and they made some business case as to why they should do that effort on a contractual basis or something.”

As with dozens of other states that have imposed some level of restrictions on TikTok, Montana’s government has cited the app as a potential privacy and security risk.

US officials fear that TikTok’s links to China through its parent company, ByteDance, could lead to American’s personal information being leaked to the Chinese government. That could help China with espionage or disinformation campaigns against the United States, officials said.

So far, however, the risk appears to be hypothetical: There is no public evidence to suggest that the Chinese government has accessed the data of TikTok users in the United States. And TikTok isn’t the only company that collects large amounts of data, or that could be an attractive target for Chinese espionage.

TikTok has said it is executing a plan to store US user data on cloud servers owned by US tech giant Oracle, and that when the initiative is complete, access to the data will be monitored by US employees. americans

More than half of US states have announced some restrictions on TikTok that affect the app on government devices. Montana’s ban marks the beginning of a new phase, however, and long-awaited legal challenges may determine whether other states soon follow suit.