TikTok is now banned in Montana

Montana Governor Greg Gianforte has signed a bill banning TikTok within the state — the first ban of its kind in the United States. The bill, SB 419, prohibits TikTok from operating “within the territorial jurisdiction of Montana” and demands mobile app stores make the app unavailable for Montana residents.

“To protect Montanans’ personal and private data from the Chinese Communist Party, I have banned TikTok in Montana,” Gianforte tweeted today.

TikTok spokesperson Brooke Oberwetter responded with a statement on Twitter. “Governor Gianforte has signed a bill that infringes on the First Amendment rights of the people of #Montana by unlawfully banning #TikTok, a platform that empowers hundreds of thousands of people across the state,” Oberwetter wrote. “We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana.”

This is a huge step toward a new kind of internet — one where states are increasingly erecting digital barriers in the name of safety and security. But the law also won’t kick in for months, if it comes into effect at all. Here’s what’s going on.

SB 419 is a relatively simple law. It declares that “TikTok may not operate within the territorial jurisdiction of Montana.” And it says that mobile app stores may not offer “the option to download the TikTok mobile application.” An earlier provision would have banned internet service providers from allowing people to access the app, but that didn’t make it into the final text.

The law specifies that no penalties apply to users of TikTok. But app store operators and TikTok itself could face fines of $10,000 per violation per day, with an individual violation defined as “each time that a user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok.”

There’s a little ambiguity here. The bill doesn’t state, for instance, whether letting people access TikTok’s rudimentary web interface would count as “operating” within Montana. The bill only penalizes app stores for “the option to download,” but it doesn’t lay out the liability for ongoing updates to already-downloaded apps. (It’s likely they’re supposed to be banned too, but Apple and Google could try to argue otherwise.)

The ban would be an unprecedented restriction on Americans’ access to the internet. But it won’t go into effect right away. The law is effective January 1st, 2024, by default. On top of that, there’s a significant loophole: it’s voided automatically if TikTok severs its ties to Chinese parent company ByteDance, as long as its new owner isn’t located in a “foreign adversary” nation.

There’s no hard legal precedent for something like the TikTok ban, so we don’t know for sure. We do know, however, that the ban will probably be challenged immediately. Although TikTok hasn’t said it will sue, it calls the rule an “egregious government overreach” and said that it would fight it. The internet trade association NetChoice, which represents companies like Meta, Twitter, and Google, has issued a statement calling the bill “plainly unconstitutional.” NetChoice has sued states including Texas, Florida, and California over other bills that regulate online speech, so Montana may well be next.

NetChoice argues that SB 419 is an unconstitutional “bill of attainder,” or a regulation that accuses a specific entity of a crime and punishes them without a trial. It also contends that the law violates the First Amendment, “restricting Americans’ ability to share and receive constitutionally-protected speech online.”

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, has previously laid out the First Amendment case against TikTok bans. “It’s conceivable that the US government will eventually be able to establish the necessity of a ban on TikTok, even if it hasn’t done so yet,” Jaffer wrote in March as momentum behind a federal TikTok ban was building. “But the First Amendment would require the government to carry a heavy burden of justification.” That argument goes for Montana as much as the federal government.

At least a few US judges have reached the same conclusion. In 2020, courts blocked then-president Donald Trump’s executive orders banning TikTok and the similarly Chinese-owned WeChat, concluding that the Trump administration hadn’t demonstrated a security risk worth shutting down users’ speech. These executive orders were reversed when President Joe Biden took office, so the cases never reached a final ruling — but so far, Chinese apps have fared better in court than the politicians trying to ban them.

This has been debated for years, and the answer is still “nobody knows.” The Montana bill’s introduction claims that “TikTok gathers significant information from its users, accessing data against their will to share with the People’s Republic of China.” But while there’s a strong argument TikTok could share such data, we don’t know if that’s actually happening. And that probably won’t change until journalists, intelligence officials, and / or whistleblowers release new details.

That’s not a very satisfying answer, so I’ll confess that this question is mainly an excuse to post SB 419’s entertainingly lurid descriptions of TikTok challenges. Part of the bill’s justification is that TikTok (allegedly) “fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities.” It then throws in nearly every negative TikTok trend of the past several years:

Throwing objects at moving automobiles, taking excessive amounts of medication, lighting a mirror on fire and then attempting to extinguish it using only one’s body parts, inducing unconsciousness through oxygen deprivation, cooking chicken in NyQuil, pouring hot wax on a user’s face, attempting to break an unsuspecting passerby’s skull by tripping him or her into landing face first into a hard surface, placing metal objects in electrical outlets, swerving cars at high rates of speed, smearing human feces on toddlers, licking doorknobs and toilet seats to place oneself at risk of contracting coronavirus, attempting to climb stacks of milkcrates, shooting passersby with air rifles, loosening lug nuts on vehicles, and stealing utilities from public places.

Now, some of these challenges have reportedly caused real-world harm, but others gained infamy mostly because well-meaning outsiders warned about them, not because people were actually trying them. “Cooking chicken in NyQuil,” for instance, was a viral joke that only began trending more broadly when the Food and Drug Administration amplified it with a bulletin. TikTok is also far from the only place where people encourage each other to do stupid things online. And Montana lawmakers aren’t banning YouTube or Facebook… because protecting speech you find distasteful or dangerous is a pretty key element of the First Amendment.

Montana is the first US legislature to pass a full TikTok ban. But several states, including Montana, have passed restrictions that apply to universities or government-issued devices. Gianforte added new restrictions making that ban apply to more apps today.

And at the federal level, both Republican and Democratic lawmakers have pushed to ban TikTok. TikTok CEO Shou Zi Chew appeared before Congress in March to answer questions about the app’s alleged national security risks and effects on children, but he left legislators apparently unmoved.

For at least some politicians, a ban is a last-ditch nuclear option rather than a first response. The RESTRICT Act, which so far seems like the most favored TikTok-banning bill, opens the door to various mitigation measures short of a ban. (The RESTRICT Act has started to face some opposition in Congress but not necessarily enough to tip the scales.) President Joe Biden has reportedly pushed for ByteDance to spin off or sell TikTok, although it’s not clear the Chinese government would allow this.

Montana’s ban won’t take effect for months, so federal lawmakers could move fast enough to moot its effects. But for now, it’s a signal that politicians have few qualms about wiping a popular social network off Americans’ phones.

Update 6:50PM ET: Added statement from TikTok.