TikTok and content creators challenging Montana’s ban face off with the state in federal court

MISSOULA, Mont. — TikTok and Montana faced off in federal court on Thursday in a case filed by the video sharing app and five Montana content creators who want the court to temporarily block the state’s ban on the platform before it takes effect Jan. 1.

Attorneys for TikTok and the content creators argued that the state has gone “completely overboard” in trying to regulate TikTok and is essentially trying to implement its own foreign policy over unproven concerns that TikTok might share user data with the Chinese government.

Christian Corrigan, the state’s solicitor general, said Montana’s law was less a statement of foreign policy and rather addresses “serious, widespread concerns about data privacy.”

U.S. District Judge Donald Molloy said he would rule on the motion for a preliminary injunction as quickly as possible.

In May, Montana became the first state in the U.S. to pass a complete ban on the app, based on the argument that the Chinese government could gain access to user information from TikTok, whose parent company, ByteDance, is based in Beijing.

TikTok has said in court filings that the state passed its law based on “unsubstantiated allegations,” and that the state could have limited the kinds of data TikTok could collect rather than enacting a complete ban. Meanwhile, the content creators say the ban violates free speech rights and could cause economic harm for their businesses.

Ambika Kumar, an attorney representing the plaintiffs in the Montana lawsuit, argued Thursday that the ban shutters a “forum for communication” that creators use to express themselves or make a living, and violates the First Amendment. She also said the state is relying on news articles to back its case and hasn’t produced facts to support its allegations regarding ties between TikTok and the Chinese government.

Judge Molloy’s questions and comments seemed to weigh in favor of the plaintiffs. He noted that TikTok users consent to the company’s data collection policies and that Attorney General Austin Knudsen could create public service announcements warning people about the data TikTok collects.

The judge noted that everything Knudsen has said about the ban at hearings and in public statements “are directed to ‘we are going to teach China a lesson,’ not, ‘we are going to protect Montana data.’”

Knudsen’s office drafted the bill that blocked TikTok. He had also testified at a legislative hearing that TikTok is controlled by an existential threat to the U.S., that China sees war with the U.S. as inevitable and that it was using TikTok as an initial salvo in that war.

Western governments have expressed worries that the popular social media platform could put sensitive data in the hands of the Chinese government or be used as a tool to spread misinformation. Chinese law allows the government to order companies to help it gather intelligence.

TikTok, which is negotiating with the federal government over its future in the U.S., has denied those allegations but that hasn’t made the issue go away.

In a first-of-its kind report on Chinese disinformation released last month, the U.S. State Department alleged that ByteDance seeks to block potential critics of Beijing, including those outside of China, from using its platforms.

The report said the U.S. government had information as of late 2020 that ByteDance “maintained a regularly updated internal list” identifying people who were blocked or restricted from its platforms — including TikTok — “for reasons such as advocating for Uyghur independence.”

More than half of U.S. states and the federal government have banned TikTok on official devices. The company has called the bans “political theatre” and says further restrictions are unnecessary due to the efforts it is taking to protect U.S. data by storing it on Oracle servers.

The bill was brought to the Montana Legislature after a Chinese spy balloon flew over the state. It would prohibit downloads of TikTok in the state and fine any “entity” — an app store or TikTok — $10,000 per day for each time someone “is offered the ability” to access or download the app. There would not be penalties for users.

The American Civil Liberties Union, its Montana chapter and Electronic Frontier Foundation, a digital privacy rights advocacy group, have submitted an amicus brief in support of the challenge. Meanwhile, 18 attorneys generals from mostly Republican-led states are backing Montana and asking the judge to let the law be implemented. Even if that happens, cybersecurity experts have said it could be challenging to enforce.

Molloy also pressed Corrigan on how the state plans to enforce the law on six of the seven Native American reservations in Montana where the state does not have criminal jurisdiction. Corrigan said the ban would not apply on those reservations.

Enforcing Montana’s ban would require TikTok to collect location data from its 150 million users in order to block those in Montana, the company argued in court briefs.

In asking for the preliminary injunction, TikTok argued that the app has been in use since 2017 and letting Montanans continue to use it will not harm the state. Montana did not identify any evidence of actual harm to any resident as a result of using TikTok and even delayed the ban’s effective date until Jan. 1, 2024, the company said.

The battle over the Montana law comes as several other states are trying to curb social media use among children. TikTok, for its part, is also facing lawsuits from states like Arkansas, Indiana and most recently Utah over allegations that it leads children to have unhealthy social media habits and poses a risk for consumer data.