On Thursday, a lawsuit appeared to be underway in Montana over First Amendment rights, in response to the state banning TikTok from operating there as of Jan. 1, the first ban of its kind in the nation.
The ban, signed by Governor Greg Gianforte on Wednesday, drew an outcry from TikTok, civil liberties and digital rights groups, and angry TikTok users, who called it an unconstitutional invasion of free speech. Montana lawmakers and Mr. Gianforte, a Republican, say the ban is necessary to prevent Americans’ personal information from falling into the hands of the Chinese government. TikTok is owned by the Chinese company ByteDance.
By law, TikTok will be fined for using the app in the state, and app store providers like Google and Apple will be fined if TikTok is available for download in Montana.
No plans for a lawsuit were announced Thursday by TikTok or leading civil liberties groups. Brooke Oberwetter, a spokeswoman for TikTok, declined to comment on the likelihood of the company filing a lawsuit.
But Ms. Oberwetter said Wednesday, after the bill was signed, that the ban violated the First Amendment rights of people in Montana and that the company would continue to “work to defend the rights of our users.” She said Thursday that a 2020 federal ban would not stand up to legal scrutiny and that Montana had no workable plan to implement the ban.
Ms Oberwetter also pointed to statements by civic and digital groups expressing similar concerns.
Ramya Krishnan, an attorney at the Knight First Amendment Institute at Columbia University, said the constitution protected Americans’ right to access social media platforms of their choice. To justify a ban, Ms. Krishnan, Montana would have to demonstrate that his privacy and security concerns were real and that they couldn’t be addressed in any scarier ways.
“I don’t think TikTok has committed to suing yet, but I think it’s likely that it will,” said Ms. Krishnan. “Because this is such a dramatic and unconstitutional violation of Americans’ First Amendment rights, we are certainly considering the possibility of getting involved in some way.”
NetChoice, a trade group that counts TikTok as a member and has sued in the past to block state laws against tech companies, also said in a statement that the ban violated the constitution. Krista Chavez, a spokeswoman for the group, said NetChoice has “no current plans to file a lawsuit” to challenge the law.
The Montana law came after the federal government and more than two dozen states banned TikTok on government devices in recent months. Lawmakers and intelligence officials have said that due to its ownership, TikTok could put sensitive user data in the hands of the Chinese government. They have also argued that the app can be used to spread propaganda. TikTok says it has never been asked to provide US user data to the Chinese government, nor has it provided it.
“Many have hypothesized that China could demand that ByteDance, TikTok’s parent company, hand over Americans’ data or use TikTok to spread disinformation in some way, but neither Montana nor the U.S. government has pointed to any proof that China is actually doing this,” Ms. Krishnan said. “That’s a problem because speculative harm cannot justify a total ban on a communications platform, especially one used by hundreds of thousands of Montanans every day.”
In addition to the potential legal battle, many experts raised questions about whether the law can realistically be enforced. Internet users can use virtual private network software to disguise their location. Individuals living in Montana border towns may be able to access TikTok and other mobile apps through cell towers in neighboring states.
In an email, Emilee Cantrell, a spokeswoman for the state’s attorney general, said there was existing technology to restrict the use of apps within a specific location. The technique, known as geofencing, is “already in use in the gaming industry,” which is also regulated by the state’s Justice Department, Ms Cantrell said.
“A simple web search will show you companies that comply with geolocation rules,” she said. If companies fail to comply with the ban, she continued, the agency will “investigate and hold violators accountable in accordance with the law.”
The legislation places responsibility for enforcing the ban on TikTok, Apple and Google. Under the law, TikTok can be fined $10,000 for each individual violation of the ban and an additional $10,000 fine each day a violation continues. Apple and Google would face the same fines if they allowed the app to be downloaded in the state.
While the ban was being considered by the state legislature, a trade group representing Apple and Google said it would be impossible for the companies to restrict access to an app within a single state.
“The responsibility should be on an app to determine where it can work, not an app store,” David Edmonson, a vice president of TechNet, the trade group that represents the app stores, said in a statement Thursday.
Google and Apple declined to comment.