Montana – not Florida – could be first state to ban TikTok

Lawmakers approved legislation to prevent the app from operating within Big Sky Country, but critics said it has no clear enforcement plan – and violates the U.S. Constitution.

Photo Illustration by Stanislav Kogiku/SOPA Images/LightRocket via Getty Images

Montana could become the first state to ban its residents from using TikTok, after lawmakers approved legislation that bars the company from operating in the state. 

The bill, which now awaits Gov. Greg Gianforte’s signature or veto, would prohibit mobile app stores from offering the TikTok app for users to download inside state lines and would ban its use by state residents starting Jan. 1, 2024.

Violators, which the bill defines as mobile app store operators or TikTok itself, would be fined $10,000 a day for breaking those rules, including each time a user accesses the app. Individual app users would not be subject to any fines.

Those fines would not apply to “law enforcement activities, national security interests and activities, security research activities, or essential government uses permitted by the governor on the information technology system of the state,” the bill said. It added that this legislation would be voided if TikTok “is acquired by or sold to a company that is not incorporated in any other country designated as a foreign adversary.” 

The Montana Department of Justice would be responsible for enforcing the ban, although the bill text noted that it is an affirmative defense against fines if entities like app store operators say they could not have reasonably known that a violation of the law occurred in the state. Montana Attorney General Austin Knudsen said on Twitter that the bill is a “critical step to ensuring we are protecting Montanans’ privacy.”

In Florida, a proposed TikTok ban on government devices (SB 258), which also applies to people using personal devices on government Wi-Fi networks, has passed the Senate and awaits consideration by the House. But it is not an outright statewide ban like Montana's. 

The Florida bill would direct the state's Department of Management Services to create a list of prohibited applications that it considers security risks, such as TikTok and WeChat, the Chinese-owned social media platforms. 

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Beyond the general ban, the Montana bill does not outline a full plan for how the state plans to enforce or monitor the statewide prohibition, something that TikTok representatives seized upon in explaining their opposition to the legislation.

“The bill’s champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bill’s constitutionality will be decided by the courts,” the company said in a statement via Twitter. “We will continue to fight for TikTok users and creators in Montana whose livelihoods and First Amendment rights are threatened by this egregious government overreach.”

The company has previously said the legislation was premised on “fears and falsehoods” surrounding TikTok, which has been accused of collecting data on Americans and surveilling them on behalf of the Chinese government. Experts have said that national security concerns surrounding foreign-made technology, while worth taking seriously, have yet to be publicly proved.

Critics also said the bill would violate the U.S. Constitution. In a statement, open internet advocacy group NetChoice noted that Article I bans “bills of attainder,” where laws are passed to punish specific people or entities without trial. The bill also violates the First Amendment for restricting the ability to share and receive free expression, the group said.

The Montana bill “sets a dangerous precedent” that governments could ban businesses they dislike “without clear evidence of wrongdoing,” NetChoice Vice President and General Counsel Carl Szabo said.

It is unclear whether the governor will veto or sign the bill. His spokesperson has declined to comment to multiple outlets, just saying in written statements that he “will carefully consider any bill the legislature sends to his desk.”

Gianforte has already banned the use of TikTok for state business and on state devices and equipment, one of many governors to do so.

The News Service of Florida contributed. A version of this story was first published on GCN

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