The Montana Senate advanced a total TikTok ban: Are bans like these realistic, or even unconstitutional?
Governmental bodies on state and national levels have been increasing efforts in opposition to TikTok, a short-form video app owned by a Chinese company called ByteDance. Over 20 states, including Utah, even banned the app from all government devices, and several college campuses nationwide have prohibited use of the app on school property.
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However, some Montana lawmakers want to take these bans a step further. Last week, a bipartisan bill to ban TikTok statewide — even on personal devices — was passed by the state Senate, according to NBC Montana. If the bill is approved by the House and the governor, TikTok will not be able to operate within state lines.
With all of these efforts to do away with TikTok popping up across the country, questions might arise. How does this relate to the First Amendment? Is it even realistic or possible for the government to take apps off of personal devices?
Montana’s proposal
If passed, Montana Senate Bill 419 would prevent TikTok from working within Montana’s state borders. It will also prevent companies such as Apple or Google from allowing users to download the app on app stores and enact a $10,000 per day fine for each violation of the law. However, the bill states that TikTok users will not be penalized if they did somehow use the app.
Originally the bill was fitted also to penalize internet service providers if they supported TikTok on their networks, but the bill was later amended to remove this detail. A lobbyist on behalf of AT&T stated that attempting to place responsibility on internet service providers would “not be a feasible solution, as it would be unprecedented, expensive and potentially impossible,” NBC Montana said.
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Why ban TikTok?
Supporters of the Montana ban want to do away with the app for much of the same reasons other states cited when announcing bans of the app on government-owned devices: privacy and national security concerns.
“TikTok endangers the safety of Montanans and Americans at large,” said Sen. Shelley Vance, R-Belgrade — the primary sponsor of the bill — via Montana Free Press. “We know beyond a doubt that TikTok’s parent company ByteDance is operating as a surveillance arm of the Chinese Communist Party and gathers information about Americans against their will.”
The bill also claims that TikTok holds a threat outside of privacy concerns, citing viral “challenges” that have promoted dangerous behavior. Some of these challenges include “taking excessive amounts of medication ... cooking chicken in NyQuil ... licking doorknobs and toilet seats to place oneself at risk of contracting the coronavirus, attempting to climb stacks of milkcrates, shooting passersby with air rifles, loosening lug nuts on vehicles and stealing utilities from public places,” the bill said.
Vance and those behind the Montana bill aren’t alone in their concerns. On Tuesday a group of U.S. senators, including Utah’s Sen. Mitt Romney, unveiled legislation that would make it easier for the president to place a ban on the app, or any other technology owned by “adversarial” countries, the Deseret News reported. This bill isn’t the first of its kind. The DATA Act, a Republican-backed act passed by the House Foreign Affairs Committee last week would grant authorities the power to ban foreign-owned apps and would place sanctions on companies with ties to TikTok or other Chinese-owned programs, per Politico. In 2020 former President Donald Trump attempted to get rid of the app, but it never went through, according to the Deseret News.
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On Wednesday FBI Director Chris Wray joined the anti-TikTok chorus, once again speaking out against the app, per Reuters. Wray said that TikTok “screams” of national security concerns, stating that the Chinese government could use its software to control the millions of devices that have downloaded the app.
A step too far?
It may not surprise anyone that the chief operating officer of TikTok, V Pappas, has spoken against banning TikTok in the U.S., specifically Montana, saying the following in a statement via NBC Montana:
“Every day, Montanans come to TikTok to learn something new, to share their voice and creativity, to chronicle Montana’s natural beauty, and to help build their businesses. This piece of legislation is an egregious violation of Montanans’ free speech rights, and it will close off Montana from the 100 million strong TikTok community in the United States. We hope that Montana legislators will consider those serious consequences — and the disastrous precedent they’re setting — and weigh them against the deeply flawed arguments put forward to justify this ban.”
One Republican senator from Montana, Jeremy Trebas, added to the conversation, saying that TikTok isn’t the only social media site that presents privacy concerns, noting that there have been privacy breaches from American-owned companies such as Facebook, according to Montana Free Press.
“I understand government banning it on sensitive government devices — that makes sense,” Trebas said. “But to me, banning it to the general public is high overreach.”
The ACLU has also been outspoken in its opposition to TikTok bans. “Whether we’re discussing the news of the day, live streaming protests, or even watching cat videos, we have a right to use TikTok and other platforms to exchange our thoughts, ideas and opinions with people around the country and around the world,” said Jenna Leventook, senior policy counsel at ACLU in a press release.
TikTok has also previously stated, per the Deseret News, that the U.S. branch of the app “does not comply with Chinese government moderation requirements.” However, it was later uncovered in July 2022 that U.S. user data actually is available to its Chinese employees, according to CNBC. TikTok responded by rolling out “Project Texas” which is intended to “fully safeguard user data and U.S. national security interests.” TikTok also says that they store all U.S. data in the Oracle Cloud, which is a North American-based company.
Despite the precautions TikTok is taking to secure their data, Wray said that “Under Chinese law, Chinese companies are required to ... basically do what the Chinese government wants them to do, in terms of sharing information or serving as a tool of the Chinese government,” per Deseret News. “And so, that’s plenty of reason by itself to be concerned.”
How realistic is a total TikTok ban?
The New York Times says that it’s unclear how the government can ban or remove an app from privately owned devices, but Caitlin Chin from the Center for Strategic and International Studies said that there are a few ways they might go about doing so.
Chin told the Times that the U.S. government could “block TikTok from selling advertisements or making updates to its systems,” making the app basically nonfunctional. As proposed in the Montana bill, companies like Apple and Google could also prevent the apps from being downloaded or updated on a national scale.
Justin Cappos, a professor at the New York University Tandon School of Engineering, told the Times that companies like Apple and Google can also remove apps that are already installed on a user’s phone. He said that that usually doesn’t happen though.
Users can also refuse to update their phones in order to keep the app, but Cappos says that that’s a “bad idea.”
