TikTokers Suing Montana

Five TikTok content creators have filed a lawsuit seeking to overturn Montana's first-in-the-nation ban on the video sharing app, arguing the law is an unconstitutional violation of free speech rights. The Montana residents also argued in the complaint, filed in federal court late Wednesday without public notice, that the state doesn't have any authority over matters of national security.

Republican Governor Greg Gianforte signed the bill into law Wednesday and said it would protect Montana residents' private data and personal information from being harvested by the Chinese government. The ban is scheduled to take effect on January 1, 2024. "The law takes the broadest possible approach to its objectives, restricting and banning the protected speech of all TikTok users in Montana to prevent the speculative and unsubstantiated possibility that the Chinese government might direct TikTok Inc., or its parent, to spy on some Montana users," the complaint states. "We expected a legal challenge and are fully prepared to defend the law," said Emily Flower, spokeswoman for the Montana Department of Justice.

TikTok has argued the law infringes on people's First Amendment rights. However, spokesperson Brooke Oberwetter declined to comment on the lawsuit Thursday. She also declined to say whether the company helped coordinate the complaint. The plaintiffs are Montana residents who use the video-sharing app for things like promoting a business, connecting with military veterans, sharing outdoor adventures or expressing their sense of humor. Two of them have more than 200,000 followers. One content creator, Carly Ann Goddard, shares videos about living on a ranch, parenting, recipes and home decor. Her account has 97,000 followers and has allowed her to roughly triple her family's household income, the complaint states.

TikTok creators can make money in several ways, including by being paid to advertise products to their followers. The lawsuit-filed just hours after Gianforte signed the measure into law-states the ban would "immediately and permanently deprive Plaintiffs of their ability to express themselves and communicate with others." "Montana can no more ban its residents from viewing or posting to TikTok than it could ban the Wall Street Journal because of who owns it or the ideas it publishes," the plaintiffs' attorneys wrote.

The case could serve as a testing ground for the TikTok-free America many national lawmakers have envisioned. Cybersecurity experts say it could be difficult to enforce. Some lawmakers, the FBI and officials at other agencies are concerned the video-sharing app, owned by ByteDance, could be used to allow the Chinese government to access information on U.S. citizens or push pro-Beijing misinformation that could influence the public. TikTok says none of this has ever happened. A former executive at ByteDance alleges the tech giant has served as a "propaganda tool" for the Chinese government, a claim ByteDance says is baseless.

China passed laws in 2014 and 2017 that compel companies to cooperate with the country's government for state intelligence work. TikTok says it has never been asked to hand over its data and it wouldn't do so if asked. "TikTok is spying on Americans. Period," Montana Attorney General Austin Knudsen told a legislative committee in March."TikTok is a tool of the Chinese Communist Party. It is owned by a Chinese company, and under China law, if you are based in China, you will cooperate with the Chinese Communist Party. Period."

More than half the U.S. states, including Montana, and the federal government have banned TikTok from government-owned devices. Montana's law would prohibit downloads of TikTok in the state and would fine any "entity"-an app store or TikTok-$10,000 per day for each time someone "is offered the ability" to access the social media platform or download the app. The penalties would not apply to users.

Opponents say Montana residents could easily circumvent the ban by using a virtual private network (VPN), a service that shields internet users by encrypting their data traffic, preventing others from observing their web browsing. Montana state officials say geofencing technology is used with online sports gambling apps, which are deactivated in states where online gambling is illegal. The idea of a TikTok ban has been around since 2020, when then-President Donald Trump attempted to bar the company from operating in the U.S. through an executive order that was halted in federal courts. President Joe Biden's administration initially shelved those plans, but more recently threatened to ban the app if the company's Chinese owners don't sell their stakes.

Montana's law would be nullified if the federal government placed a ban on TikTok or if it was sold to a company not based in a country that is federally designated as a foreign adversary, which currently includes China, Russia, North Korea, Iran and Cuba.