In an expected turn of events, TikTok filed a lawsuit on Monday suing Montana over its new ban, which prohibits its citizens from downloading the social media app. The ban would fine the app $10,000 per violation if it operated in Montana or should app stores allow it to be downloaded within its confines.
Montana became the first state in the U.S. to bar the use of the popular, Chinese-owned, short-video sharing service on May 17, when Montana Gov. Gianforte signed the statewide legislation expected to take effect on Jan. 1, 2024.
To protect Montanans’ personal and private data from the Chinese Communist Party, I have banned TikTok in Montana.
— Governor Greg Gianforte (@GovGianforte) May 17, 2023
According to a news release, the American Civil Liberties Union (ACLU) slammed the ban.
“Gov. Gianforte and the Montana legislature have trampled 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 the name of anti-Chinese sentiment. We will never trade our First Amendment rights for cheap political points,” the statement explained.
It remains unclear how Montana would enforce a TikTok ban, especially as cybersecurity experts say it could be challenging to implement. That task has been placed upon the Montana Justice Department to carry out said legislation.
According to a complaint filed in the U.S. District Court in Montana, TikTok’s lawsuit alleges that the law is an unconstitutional violation of the First Amendment rights to free speech of the company and its users.
“We are challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana,” TikTok spokesperson Brooke Oberwetter said after the suit was filed.
It further maintains that TikTok, which approximates users in the hundreds of thousands across the state, is being singled out “for purely punitive reasons.”
Gov. Gianforte drafted an amendment to the bill earlier this month that would have edited the language to include all social media rather than just target TikTok. However, the legislature adjourned before the amendment could make it into the final bill eventually sent to his desk.
TikTok claims the unfounded “speculative concerns” that the Chinese government could access the data of U.S. TikTok users — undoubtedly a key motivation behind the ban — has resulted in legislation that would consequentially impose harsh penalties.
“[TikTok] has not shared, and would not share, U.S. user data with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users,” the company repeatedly said and does so again in its lawsuit.
In response, NPR reports TikTok has launched “Project Texas,” a $1.5 billion data-security plan created in collaboration with Austin-based software company Oracle to keep Americans’ data stored on U.S. servers and overseen by an American team.
In addition to First Amendment concerns, the complaint argues the ban violates a federal preemption, thus intruding upon matters of exclusive federal concern and further violating the Commerce Clause of the U.S. Constitution, which “limits the authority of States to enact legislation that unduly burdens interstate and foreign commerce.”
TikTok, owned by Chinese tech company ByteDance, is seeking an “order invalidating and preliminarily and permanently enjoining Defendant from enforcing the TikTok Ban,” according to the complaint.
This suit comes on the heels of another complaint filed just last week, in which Montana residents and TikTok content creators Samantha Alario, Heather DiRocco, Carly Ann Goddard, Alice Held and Dale Stout claimed in similar arguments that the ban suppresses speech and outstrips the state’s legal authority by exercising “power over national security that Montana does not have.”
“We are determined to see that this misguided and invalid law is permanently enjoined,” Ambika Kumar, lead counsel for the plaintiffs, said.
Both lawsuits have been filed in federal court in Missoula, naming Montana Attorney General Austin Knudsen, who is charged with enforcing the law.
Emily Flower, spokeswoman for Attorney General Austin Knudsen, stated that the office anticipated legal challenges to the law.
“The Chinese Communist Party is using TikTok as a tool to spy on Americans by collecting personal information, keystrokes and even the locations of its users — and by extension, people without TikTok who affiliate with users may have information about themselves shared without evening knowing it,” Flower said on Monday.
“We expected legal challenges and are fully prepared to defend the law that helps protect Montanans’ privacy and security,” Flower continued.
According to CNN, the Chinese Foreign Ministry slammed Montana’s ban as an “abuse of state power” on Tuesday.
“I want to stress that the U.S. side has not provided any evidence to prove that TikTok poses a threat to the national security of the U.S.,” ministry spokesperson Mao Ning said at a briefing.
Nonetheless, this upcoming legal battle will indicate the hurdles both Montana and national lawmakers could face and likely serve as a test case for imposing the TikTok-free America many lawmakers envision.
The agenda behind imposing a ban began in 2020 was then-President Donald Trump’s, who attempted to bar TikTok from operating in the U.S. through an executive order quickly halted in federal courts. More recently, the Biden administration has threatened to ban the app if the company’s Chinese owners don’t sell their stakes.
Montana’s ban would be nullified should the federal government successfully bar TikTok, or if it was sold to an owner not based in a country federally designated as a foreign adversary, which currently includes China, Russia, North Korea, Iran and Cuba.
“They can continue using TikTok to express themselves, earn a living and find community as [TikTok] continue[s] working to defend the rights of our users inside and outside of Montana,” Obwetter reassured Montanans in a statement last Wednesday, NBC News reported.