Montana’s TikTok Ban In Three Minutes or Less
Montana has become the first state in the nation to ban TikTok, the popular but damaging smartphone app. The new law, signed by Gov. Greg Gianforte on Wednesday, completely bans downloads of the app in the state and would fine platforms that allow downloads $10,000 per day.
The dangers of TikTok are one of the rare areas where both parties seem to find agreement. The app, which allows users to create and watch videos with a maximum length of three minutes, was created by Bytedance, a Chinese company, and there are concerns about everything from privacy and security to its effect on mental health.
India and Afghanistan have already banned TikTok and President Biden banned the app from federally-own phones earlier this year. Donald Trump attempted his own TikTok ban in 2020 and tried to force Bytedance to sell its US assets. Several other countries prohibit the app from being used on government devices. Interestingly, TikTok is not available in China, but Chinese users have access to a similar app called “Douyin.”
Onto this stage, Montana marches forward with its ban. Per the AP, an “entity” will be fined $10,000 per day if a user is “is offered the ability” to download the app in the state. Individual users will not be fined.
Immediately, I have questions. The First Amendment problem is obvious with TikTok already making the claim that the law infringes on its constitutional rights.
“Gianforte signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok,” TikTok said in a statement quoted by the Wall Street Journal.
Montana also has the additional problem of the interstate commerce clause. The Constitution gives Congress the authority to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Bytedance, a company that is based outside of Montana, would seem to fall under this category of federal jurisdiction.
A national ban on TikTok is still a possibility at the federal level, but such an attempt would also face free speech challenges. Axios notes that three bills currently being considered give the government more powers to regulate dangerous apps, but the ACLU is opposing at least one of the bills, the DATA Act, on First Amendment grounds.
There is also the technological challenge of banning a popular app. About 150 million Americans use the app and it would not disappear from their devices even if banned. App stores can be prevented from making the app accessible to American users, but these measures could be circumvented with virtual private networks (VPNs) that hide a user’s location.
It is even more difficult to stop TikTok downloads in a single state. TechNet, a trade group that represents Google and Apple, pointed out that app stores don’t have the ability to “geofence” individual states, reports the AP. If you’ve ever tried to stream video outside of the US, you know that this particular problem does not apply on a national level, however. Further, the Montana legislation doesn’t make internet service providers liable for access.
Montana Attorney General Austin Knudsen (who I can’t help but picture as looking like Jamie Dutton) said that the ban would be similar to laws that ban internet gambling in the state. Violations can be reported by anyone and the state will send a cease-and-desist order when it finds that a violation has taken place.
Knudsen said that the law puts the burden on companies “to not allow their apps to work in Montana and other states where they are not legal.”
Montana’s ban is set to start on January 1, which leaves more than half the year for legal battles to result in an injunction that stops the ban before it starts. My wager would be that the ban never takes effect.
I do think that the federal government should look into a nationwide TikTok ban on national security grounds. Even that would face legal challenges but it would have a better chance of standing than a single state’s ban.
Judges might be more amenable to security concerns if they came from the level of government that is responsible for national security and interstate and foreign commerce. That’s especially true if Congress gets behind a ban and passes a bill that gives specific authority to the Executive branch.
Whether at the federal or state level, I for one would love to hear descriptions of a Supreme Court oral argument in which the justices debate the relative legal merits of political expression through TikTok dances. I think we will get that chance soon.
No one even needs a VPN.
Two seconds searching got me a copy of tiktok apk that any Android user can install on their phone:
Is this illegal? I mean, it probably technically is a copyright violation of TikTok’s software, but that really only matters if TikTok sues over it. As someone who has owned Android devices with no store, trust me, it’s very easy to get _any_ free Android app to download and install, no one actually seems to care about the copyright of these files, only the ones you have to pay for.
You’ll notice the site isn’t a pirate-looking site, it’s pretty professional setup with an actual company behind it…which actually means that they probably will take the apt down if Montana goes after them, requiring teens to get it from seedier sources. (OTOH, kids can download the apt _now_ and just trade it around.)
Is downloading from third parties a lot less secure than downloading from Google Play as the file could have viruses in it? Yes.
Will this not update so it will become slowly out of date and might expose security holes? Also yes.
Could TikTok just…publish such an apk themselves, on their website? Huh. Yes they could. In fact, they could make one that downloaded the apk and autoupdated. In fact, plenty of places that have been banned from the Android store have done stuff just like that.
Don’t worry, I’m sure teens aren’t tech savey enough to track down any of that. Or just…trade the apk around themselves. If the app was smart, it would make that very simple: Click here to text your friend a link to the app download.Report
Well, I say no one needs a VPN…no Android user needs a VPN. Apple users have locked themselves into a single store that operates at the whim of Apply. Good plan?Report
I don’t know how common it still is, but companies used to run real private networks over sizeable areas, and — just as examples — packets stamped with an IP address that traces back to Washington might actually be from a machine in Idaho, or vice versa.Report
When TikTok is outlawed, only outlaws will have TikTok.Report
I guess Montana’s IQ is a little higher than other states’, and it’s headed toward another increase.Report
The punishment for providing TikTok is being body-slammed by the governor.Report
Given the SCOTUS rulings today in the Twitter and Google 230 cases, I suspect this won’t survive on appeal.Report