Montana fired the first shot.

What does the ban consist of?

Governor Greg Gianforte signed a bill banning TikTok into law on May 18 after the Montana legislature passed it last month. Montana has become the first state in the US to ban TikTok, an app with more than 150 million users in the country.

Montana Governor Greg Gianforte has signed a bill that would ban TikTok from operating in the state and prohibit downloads of the app. Photo: Wall Street Journal

Montana’s newly enacted law would ban app stores like Google and Apple from offering the TikTok app for download within Montana. TikTok and app stores would face fines of $10,000 a day for violating the law. Individual TikTok users would not be penalized.

In response to the Montana ban, TikTok, which is owned by Chinese tech company ByteDance, said in a statement that the bill “violates the First Amendment rights of Montanans,” adding that it “will defend the rights of our users inside and outside Montana.”

“Gianforte signed a bill that violates the First Amendment rights of Montanans by unlawfully banning TikTok,” a TikTok spokesperson said in a statement. While the company did not say whether it planned to pursue legal action, TikTok said in a previous statement that “the constitutionality of the bill will be decided by the courts.”

Montana's ban is set to take effect on January 1, 2024. However, any legal challenges could result in a delay in the ban's start date.

It’s unclear how the ban will be enforced or what will happen to Montanans who downloaded the app before its January 1 effective date. There are still unanswered questions about whether Montanans can use a workaround, such as a virtual private network, to make their devices appear to be out of state.

Asked for specifics, Shelley Vance, a Republican state senator who sponsored the bill, said the responsibility for compliance would fall on TikTok itself.

Voices of opposition

But as soon as it was approved, Montana's law drew criticism from TikTok and free speech advocates in the US. The American Civil Liberties Union (ACLU) - a non-governmental, non-partisan organization with a strong reputation for protecting individual rights and liberties - called Montana's ban unconstitutional.

“With this ban, Governor Gianforte and the Montana legislature have ignored the free speech rights of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small businesses,” ACLU local policy director Keegan Medrando said in a statement.

“Montana is going to have a very difficult time convincing the courts that this kind of ban is consistent with the First Amendment,” said Jameel Jaffer, a constitutional expert at Columbia University.

But Governor Gianforte, in a statement on May 18, asserted that Montana is taking “the most decisive action of any state to protect Montanans’ private data and sensitive personal information.”

Shortly after lawmakers passed the bill, Gianforte sought changes to expand the law so it could apply to all social media apps that provide data to foreign rivals, not just TikTok.

A spokesperson for the Montana Governor’s Office said the proposed changes were intended to address legal concerns. But Gianforte received the bill late in the legislative session, so there was no time to incorporate the changes into the bill.

Governor Gianforte is also banning the use of all social media apps tied to foreign adversaries on state equipment and for state-owned businesses in Montana. Gianforte, in a memo, listed examples of such apps, including the popular messaging app WeChat, which is used by more than 1 billion people worldwide.

Montana case will shape the big picture

Legal challenges to the law Montana just approved could provide insight into whether courts will back federal efforts to ban TikTok, which has 150 million users in the United States.

Members of Congress have introduced bills to ban TikTok nationwide or give the government more power to do so. The Biden administration recently demanded that TikTok separate from its Chinese owners or face being banned.

TikTok CEO Shou Zi Chew testified before the US House of Representatives on data privacy earlier this year. Photo: NBC

Supporters of the Montana bill say the state has legal preemption to win a challenge. Montana lawmakers have cited national security concerns as grounds for banning TikTok. Some administration officials and members of Congress have worried that the Chinese government could order TikTok’s parent company, Beijing-based ByteDance, to use the app to spy on Americans or spread propaganda.

TikTok said such a scenario has never happened and that it would refuse to comply with the order if similar requests were made in the future. TikTok's parent company also said it had proposed a $1.5 billion plan to the US government to protect TikTok user data in the US.

The First Amendment of the U.S. Constitution protects freedom of speech, but it is not absolute. National security and other concerns can justify government efforts to regulate speech.

For example, in 2010, the US Supreme Court upheld a federal law banning “material support” to foreign terrorist organizations and even advising on perfectly legal activities, despite arguments that the measure trampled on free speech.

Or in another case, in 1986, the Supreme Court upheld an order to close an adult bookstore because it facilitated prostitution. The bookstore argued that the order violated the First Amendment, but the objection was invalid.

Joel Thayer, an attorney who runs the Digital Progress Institute, a think tank, said the Supreme Court ruled on the bookstore’s conduct, not its content. He said the same thing happened in Montana, where the state is regulating TikTok’s conduct, such as its relationship with parent company ByteDance. “But the question is: Does the court consider Montana’s law to regulate conduct or speech?” Thayer said.

Obviously, the road to Montana’s TikTok ban is still quite thorny. But it could pave the way for a comprehensive control measure on TikTok as concerns about the data security of this app’s users become a hot topic, not only in the US but also around the world.

Nguyen Khanh

Source: https://www.congluan.vn/lenh-cam-tiktok-o-bang-montana-la-gi-va-lieu-co-the-thuc-thi-post248305.html