Montana TikTok Ban Likely To Face Challenges

Montana is blazing the way on TikTok bans—but questions about the restrictions' feasibility are spurring calls for the national government to act in a unified way.

Montana became the first state to ban TikTok last week, prohibiting app stores from offering the app to users within the state borders. The law will apply a $10,000 fine to app store operators like Google and Apple for each violation beginning in 2024. Fear that TikTok may be used to spy on or push narratives favorable to the Chinese government to the American public have been brewing as its popularity has grown.

While Montana is not the first state to regulate the use of the Chinese-owned video app, it is the first to try to restrict its distribution. However, TikTok has previously beaten bans such as Montanta's in court and it's unclear whether the "Big Sky Country" ban is technologically enforceable. These stumbling blocks are leading some to call on the national government to act.

Can Montana Enforce This Ban?

There have been questions about whether an app can even be banned, and how Montana would be able to police downloads.

TechNet, a trade organization whose members include Google and Apple, testified at a March hearing on the Montana legislation that while app stores can geofence on a country-by-country basis, it isn’t able to do so on a state-by-state basis and would not be able to comply with the law.

Montana’s effort could also be undermined by a separate push by the U.S. Congress to make it easier for app users to “sideload” software directly to their phones, bypassing app stores altogether.

Rick Lane, a technology policy expert and volunteer child technology safety advocate based in Washington, D.C. said it's hard to see how a TikTok ban that blocks distribution could be enforced if users could simply sideload the app.

TikTok Has Legally Challenged Bans Before

The Montana ban is similar to what former President Donald Trump tried to do with an executive order in 2020, which didn’t survive court challenges.

The executive order called for the government to prevent the app's use within the country. TikTok's parent company ByteDance legally challenged the order and was granted an injunction against the ban from a federal court.

When President Joe Biden took office, he rescinded the order and replaced it with a more strict review of apps that are owned by "foreign adversaries."

Already TikTok users have filed suit against Montana for the ban, and more legal challenges could be on the way.

Unlike social media content providers like Facebook or TikTok, app stores don't have "Section 230" legal protection from state or federal charges, which is why Montana can target Apple and Google app stores for distributing TikTok, Lane said.

“Section 230” refers to 1996 legislation that protects internet service providers from legal liability posed by their users. The provision prohibits users from suing social media providers like Facebook for posts made by other users. The protections have been key to the growth of social media.

National Government Contemplates Stepping In

With more than 102 million users, the U.S. is by far the largest market where TikTok's use could be restricted, according to marketing company Insider Intelligence.

Some members of Congress want to use that leverage to try to force TikTok's parent company ByteDance to sell the app. This would sidestep the First Amendment and interstate commerce issues that state bans raise, said Thomas Feddo, former assistant treasury secretary for investment security.

The federal government has been contemplating its own ban on the app as well. President Joe Biden has said the app represents a national security threat and has already prohibited its use on government phones.

“This is just the tip of the iceberg, states are not waiting for the federal government before they act on these critical privacy issues,” Lane said. "I think we’ll see pressure on Congress to move forward on federal privacy legislation.”