Montana TikTok ban will be hard to enforce, if it survives court challenges

Montana’s new ban on the short-video app TikTok seeks to erase one of the world’s most popular social media platforms from a state with more than a million people, many of whom use the app daily.

But there are a few problems with that effort, say experts who’ve reviewed the law: It’s constitutionally problematic, logistically impractical and largely impossible to enforce.

For it to work, some noted, the law, designed ostensibly to protect user information, would require tech companies such as TikTok to gather even more data on their users, not less.

“Technically incompetent,” said Tarah Wheeler, the chief of the cybersecurity company Red Queen Dynamics and a senior fellow at the Council on Foreign Relations. “The Montana legislature is giving an order they should know can’t and won’t be followed.”

Montana’s TikTok ban is likely to become a major test for how American courts and lawmakers handle a new era of increased global competition on the web. Some state and federal lawmakers have argued that TikTok’s ownership by a China-based company, ByteDance, has made it so vulnerable to Chinese-government spying and influence that nothing short of a ban will protect Americans online.

But it has also inflamed concerns about government overreach in the United States, too, especially because TikTok’s critics have yet to show proof that the popular app has become a tool for propaganda or espionage.

“If I was a citizen of Montana, I would be outraged at the intrusiveness of this law, compared to the nebulousness of the supposed risk,” said Jon Bateman, a policy researcher for the Carnegie Endowment for International Peace and a former cyber-strategy director in the Department of Defense.

“The state is denying its citizens access to an information platform on the grounds of national security or privacy,” Bateman added. “Why are Montana citizens not equipped to make those kinds of determinations for themselves?”

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Gov. Greg Gianforte, a Republican, signed the bill into law Wednesday, saying it would “protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party.” The ban is set to go into effect Jan. 1, though it could be delayed by challenges in court.

Gianforte’s office hasn’t provided any evidence of Communist data-harvesting, pointing instead to broader Chinese laws they’ve argued could be used to coerce ByteDance into compliance, echoing claims that TikTok’s detractors have made in Washington.

After signing the bill, Gianforte issued a separate order, requiring state officials to remove from state devices other apps that he said “provide personal information or data to foreign adversaries,” including the messaging apps Telegram and WeChat.

On Wednesday, five TikTok creators filed a lawsuit claiming the ban infringes on their First Amendment rights and those of hundreds of thousands of TikTok users in Montana. The suit, which names Montana Attorney General Austin Knudsen as defendant, says the state “can no more ban its residents from viewing or posting to TikTok than it could ban the Wall Street Journal because of who owns it or the ideas it publishes.”

Some free-speech experts expect any TikTok challenge would prevail on First Amendment grounds. In 2020, federal judges blocked President Donald Trump’s executive order banning TikTok and the Chinese app WeChat, saying the government had provided “scant little evidence” to justify a ban that would “burden substantially more speech than is necessary.”

But Montana’s ban also faces many technical hurdles. The law would rely heavily on the app stores to cut off TikTok users, levying $10,000-a-day fines on TikTok, the app stores and any other “entity” that “offered the ability” to download TikTok in the state.

But Apple and Google have both said blocking Montanans from downloading TikTok would require a complete rewrite of how their users are tracked.

The app stores, technical experts say, are divided by country or global region, and they don’t change or discriminate based on which state a user is in. Changing that system would require not just carving the stores into state-specific chunks but closer monitoring of people’s locations and a by-the-minute system to define what happens when, for instance, a user drives over state lines.

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The companies could block users based on the billing address on their accounts, but those are easily changed and don’t update based on a person’s actual location, some experts said.

They could also get a rough estimation of a device’s location by using a number, known as an IP address, that’s assigned to every online device. But those addresses can be changed at will through the use of services such as virtual private networks, or VPNs, that would allow a TikToker in Montana to appear as if they were anywhere else. Search interest inside Montana for VPNs has spiked several times in the months since the bill was proposed, Google Trends data shows.

Montana state officials have compared their proposal to online gambling apps, which are blocked in states where gambling is against the law. But those bans rely on the apps’ developers to explicitly “geofence” and blacklist the states, not on the app stores, and tech experts said they are easily circumvented.

TikTok says it does not collect precise location data on its users, so complying with the Montana law would require the company to start recording users’ GPS data or demanding they supply routine updates on the state they’re currently in.

“You can’t enforce this ban without creating a surveillance state that includes fine-grained location data and the ability to monitor and read people’s phones — the exact mirror of the Chinese surveillance state they’re afraid of to begin with,” Red Queen Dynamics’s Wheeler said.

Apple and Google declined to comment.

The TikTok ban, if it survives court challenges, could have serious impact in the state. Montana’s sweeping vistas and picturesque wilderness have for years been popular sights on TikTok’s video feeds: The hashtags for two of its prominent tourist attractions, #GlacierNationalPark and #YellowstoneNationalPark, each have roughly 300 million views, TikTok data show.

One of TikTok’s most popular creators, Hank Green, lives in Missoula, where he posts educational videos about science, social issues and other topics. The longtime video-blogger has more than 7 million TikTok followers, and his videos have been ‘liked’ more than 500 million times.

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The ban worries Christian Poole, a 20-year-old who’s spent most of his life in Bozeman, the state’s fourth-largest city, with 57,000 residents, and one of the fastest-growing small cities in the United States. Poole started posting videos to TikTok about speech and debate topics during his junior year of high school. Over the last four years, he’s gained more than 400,000 followers, some of whom call him the “unofficial ambassador for the state of Montana” due to his frequent videos about life in the Treasure State.

Poole said he works as a merchandiser, driving to grocery stores to stock Pepsi cans and set up displays. But TikTok, he said, has helped him work toward his lifelong dream of being an entertainer, sharing jokes and building an audience with people he’d otherwise never be able to meet.

“For all of that to go away in a heartbeat would not be super great,” he said. “It would take everything I’ve worked so hard for in the past four years and throw it in the garbage.”

Already, opponents of the ban are plotting ways to undercut it. The Electronic Frontier Foundation, which called it “a blatant violation of the First Amendment,” tweeted a how-to guide for circumventing internet censorship, and David Greene, a senior staff attorney at the San Francisco-based group, said it would probably file an amicus brief supporting TikTok if the ban lands in court.

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The ACLU of Montana and other free-speech groups last month sent a letter to the Montana legislature saying the law “would set an alarming precedent for excessive government control over how Montanans use the internet.” After the law’s signing on Wednesday, Keegan Medrano, policy director at the ACLU of Montana, said in a statement, “We will never trade our First Amendment rights for cheap political points.”

Some experts said they believe the technical concerns are a sideshow to the ban’s true design: as a messaging bill intended to win public attention for lawmakers eager to look tough on tech. The ban could lead to a snowball effect for other states wanting the same publicity — or, if it’s humiliated in court, lead other state lawmakers to hold their fire.

“We have now reached a point where it’s not about technical ignorance, it’s all about theater: politicians attacking a Chinese app to make a name for their state,” said Milton Mueller, a Georgia Institute of Technology professor and co-founder of the Internet Governance Project.

“They’re probably thinking they can threaten the big players, the app stores, to somehow enforce this for them. But how do you detect if someone’s running the app on their phone in Montana unless you’ve set up a statewide ‘Great Firewall’ of Montana?” Mueller said, using a term generally reserved for China’s restrictive internet policies. “And then how do you get it off their phones: You have policemen stopping people in traffic, saying, ‘Show me your phone?’”

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