Montana TikTok ban draws multiple court challenges

Less than a week after Gov. Greg Gianforte signed a bill that will ban Chinese-owned social media platform TikTok in Montana, the newly minted law has already drawn court challenges, one filed last week by a group of users and a second, filed Monday, by the company itself.

Both lawsuits, filed in federal district court in Missoula, argue that the ban tramples on free speech rights and also oversteps by injecting state government into a national security issue. The plaintiffs ask the federal court to declare the law unconstitutional and issue an order preventing the state from enforcing it.

“By banning TikTok — a forum that Plaintiff and hundreds of thousands of individuals in Montana use to engage in constitutionally protected speech — the TikTok Ban unlawfully abridges one of the core freedoms guaranteed by the First Amendment,” attorneys for the company wrote in their complaint.

If the law survives the barrage of litigation, the ban will go into effect Jan. 1, 2024. It would authorize the Montana Department of Justice to fine TikTok and app store companies if they don’t block access to the platform within the state’s borders. The new law doesn’t allow the state to prosecute individual Montanans for circumventing the ban.

Montana Attorney General Austin Knudsen, who was a vocal proponent for the bill and typically defends the state in major litigation, is named as the sole defendant in both lawsuits. 

“We expected legal challenges and are fully prepared to defend the law that helps protect Montanans’ privacy and security,” attorney general spokeswoman Emily Flower said in a statement Monday.

As the bill was debated by the Legislature this winter, Knudsen’s office released a statement saying the platform’s data-sharing practices jeopardize user privacy and national security.

“TikTok poses a threat to every Montanan who has the app on their devices. We know that the Chinese Communist Party is using it to spy on Americans by collecting personal information, keystrokes, and even the locations of its users,” Knudsen said. “Additionally, the app is feeding harmful adult content to children that encourages illegal and dangerous behavior.” 

In its suit, TikTok calls those allegations “unsubstantiated.” 

“Plaintiff has made clear, through its actions and statements, that it shares no U.S. user data with the Chinese government and will not do so in the future,” the lawsuit filed Monday said.

The company also said it is taking specific steps to moderate content and protect the privacy of its users.

“As set out in its Privacy Policy and like other platforms, TikTok collects certain information from its U.S. users, such as username, date of birth, and, depending on the process by which a user signs up for TikTok, the user’s phone number or email address,” the company said.” TikTok does not, however, require users to provide their real names during registration, nor does TikTok ask its users about their employment or relationship status. Moreover, current versions of the TikTok app do not collect precise or approximate GPS information from U.S. users.”

TikTok says it has contracted with Oracle Corporation, a U.S.-based technology company, to store its U.S. user data and inspect its source code “to identify instances of potential malicious code or security vulnerabilities.”

TikTok is owned by ByteDance Ltd., which is legally incorporated in the Cayman Islands and has its headquarters in Beijing. According to the Associated Press, western government officials have worried the company could be compelled to hand over user data under Chinese laws that require China-based companies to aid state intelligence work.

The company notes in its lawsuit that it has been under congressional scrutiny for its data practices in recent years and restructured portions of its business in an effort to address those concerns.

“Montana’s ban ignores Congress’s clear intention to address national security concerns at a national level rather than to allow a patchwork of State laws,” the lawsuit said.

The group of TikTok user plaintiffs are Samantha Alario of Missoula, Heather DiRocco of Bozeman, Carly Ann Goddard of Custer, Alice Held of Missoula and Dale Stout of Missoula. Several of those plaintiffs said they have substantial followings on the platform and use it for business purposes.

The user plaintiffs are represented by attorneys with Missoula-based Boone Karlberg P.C. and Seattle-based Davis Wright Tremaine LLP. TikTok is represented in its suit by Washington, D.C.-based Covington & Burling LLP and Helena-based Jackson, Murdo & Grant, P.C.