Why Montana Is Trying To Ban TikTok
Montana's attempt to ban TikTok is part stupidity and part grandstanding. Here's why they got it so wrong and what we should do instead.
Montana recently became the first state in the nation to enact a ban on TikTok. The ban, which would take effect January 1, 2024, would prohibit downloads of TikTok in the state and would fine any “entity” (i.e. an app store or TikTok itself) $10,000 per day for each time someone in Montana “is offered the ability” to access or download the app.
Much has been said about the legal and social merits of the Treasure State’s new law (yes, that’s Montana’s nickname). Namely, legal commentators across the board have largely disclaimed the ban as rife with constitutional violations. Those criticisms have been discussed at length, but the key points are that:
The federal government has exclusive authority over foreign relations and issues of national security. It’s said that the federal government must “speak with one voice” on these issues to ensure that US foreign policy is coherent and uniform. If each state took its own approach to foreign issues of national importance, it would, at best, cause confusion on the international stage. The Montana ban calls China “an adversary of the United States” in the very first line of the bill and cites China’s control over ByteDance (TikTok’s parent company) as the driving legislative purpose.
States can’t discriminate against or “unduly burden” international commerce. Again, interstate and international commerce falls under the purview of the federal government under the Constitution. Montana is free to enact neutral rules of commerce that it feels are appropriate (e.g. bans on certain nicotine products across the board) but it can’t go around saying, “We’re only banning nicotine products from Georgia the state and Georgia the country because we don’t like Georgians.” See #1 for why the ban fails here.
A legislative body can’t pass a law that targets a person or some group of people (a “bill of attainder”). Even if you didn’t know it was called a bill of attainder until right now, this one is probably intuitively obvious to almost everyone. So it’s perplexing as to why the Montana lawyers and legislators who crafted the ban didn’t avoid this gaping pothole. This one is such a big miss that Montana’s governor is reportedly considering an amendment to the law to broadly cover social-media apps that provide certain data to foreign adversaries instead of TikTok specifically.
The government can’t arbitrarily take your stuff (a.k.a. “property”). As some TikTokians and TikTokettes have claimed in their own lawsuits against Montana, they make a considerable portion of their income on the platform by creating “content” (largely videos of themselves bopping, wiggling, and jiving, I think). Money is property, and the government can’t just arbitrarily deprive you—as a user of TikTok in Montana or as one of the 6,000 businesses on the platform—of that income without due process.
Finally, the argument getting the most headlines is that it deprives our dear TikTokers of their freedom of speech. TikTok is a forum to (in theory) express ideas, and by denying the roughly 200,000 TikTok users in Montana of their constitutional, God-given right to dance their hearts out on TikTok, Montana is infringing on those users’ First Amendment rights.
If a federal ban ever comes in to play (which would supersede and nullify the Montana ban), the last two points would remain particularly relevant in any legal challenge to that federal ban.
All that said, why did Montana even choose to be the first mover here? Moreover, why did they choose to go ahead with such a half-baked piece of legislation with so many constitutional infirmities?
Door number one: stupidity. Based on some of the issues with the bill outlined above, that’s not out of the question.
But (the more charitable?) door number two is that this is just political grandstanding. Despite the criticism leveled at Montana’s Governor Gianforte, who ultimately signed the bill into law, he actually doesn’t appear to be the driving force behind the ban. In fact, once the Montana legislature passed it, he was reportedly unsure whether he’d even sign it. Rather, it was Montana’s AG, Austin Knudsen, who was the legal mastermind behind this legislative magnum opus. Knudsen (who seems to do all his video interviews with a rifle bullet the size of a Montana “Freedom” license plate directly over his shoulder) claims he was “prepared for these very arguments” from TikTok and is expecting this to go all the way up to the Supreme Court.
The answer, then, is that Montana decided to ban TikTok because because its AG and its legislature had the stupid idea to put together a law they knew would be challenged in court in order to:
Score some political points much in the same way DeSantis is trying to do in Florida by trying to turn Disney into a symbol of “woke culture.” Except, because Meatball Ron already called dibs on the “woke mind virus”, Montana is going with the “Chinese Communist Party spying tool.”
Score some media cred and name recognition (particularly on the part of the veritable jurisprudential maestro himself, Montana’s AG Knudsen) by being the first to pass a ban, first to go on a widespread media campaign to discuss the ban, and first to, as Knudsen himself has suggested, go to the Supreme Court over the ban.
These realities are even more likely to be true when you realize that the “data privacy” argument is basically negated by Montana’s disregard for every other social media platform that collects the same sort of information from its users, in addition to the reality that China, with or without TikTok, can get all the information it can currently get through TikTok from third-party providers:
Like practically all tech platforms, TikTok stores not only the content that users create on it, but significant metadata on them — and will turn that information over to law enforcement if legally compelled to do so. According to a leaked document provided to police and reported by Business Insider, for TikTok that can mean usernames, how and when users signed up for the service, phone numbers and device types, and significant location data.
While that kind of information may seem invasive, it’s the norm for phone apps to track it, especially location data — and that kind of information is bought and sold on a daily basis in markets that China has access to.
“China could buy similar mobile data from data brokers or ad networks. Most ad networks are collecting the same, if not worse, information,” said Whitney Merrill, a former lawyer for the Federal Trade Commission.
“I think if they really wanted to get this information, they’d get it from a whole bunch of other sources, and disallowing TikTok isn’t making any incremental improvement,” Merrill said.
Now, frequent readers may know that I am no fan of this TikTok. But legislation targeted at putting a specific company out of business sets a scary precedent for potential future government overreach in the private sector. Between Montana’s proposed ban on TikTok and Florida’s battles with Disney, it’s becoming increasingly difficult for Republicans to call themselves “pro-business” with a straight face. Data privacy as a whole is an important topic worthy of thoughtful legislation, and the national security concerns presented by China’s ease of access to this sort of information are all the more reason we need immediate action from our politicians. But Montana’s move here is just a selfish waste of political and judicial resources for 15 minutes of fame.
The truth is, if Montana, other states, and even the federal government really wanted to get rid of TikTok, their best bet would be to just get out of the way and let the inevitable play out. Whether the death knell tolls for TikTok as quickly as it did for Vine, or as slowly as it will for Facebook (whose demise is surely coming), it’s all but certain that TikTok will eventually be replaced with a newer and shinier social media platform (one that, at this rate, will presumably just feed you with a constant flow of rapid videos and images in a way that I imagine will basically look like the Ludovico technique from A Clockwork Orange). All of this toothless discussion around what to do with TikTok and how to do it is, if anything, likely only prolonging the platform’s moment of relevance (no such thing as bad press, as they say). Nonetheless, we can all rest assured that—in no small part due to these attention-span-shortening platforms themselves—TikTok, like the rest of its ilk, will eventually fall out of favor. Let’s just hope, for AG Knudsen’s sake, that TikTok doesn’t burn out before he gets his day at the Supreme Court.