Montana's TikTok ban violates people's constitutional rights

To seek publicity like any other US politician, Montana Governor Greg Gianforte got his second dose of national and international exposure by approving a state-wide ban on the popular social media app TikTok. He earned his first "15 minutes of fame" six years ago for assaulting a journalist whose question he did not like. Gianforte pleaded guilty, and part of his sentence was to take anger management classes. The classes did not work because the piece of legislation he signed was an assault on the US Constitution, about 200,000 TikTok creators, and 6,000 businesses in Montana, as well as in China.

Senate Bill SB0419 begins with the false premise that China "is an adversary of the United States and Montana and is interested in gathering information about Montanans, Montana companies, and the intellectual property of users to engage in corporate and international espionage." Without proof, the law is based on paranoia and false national security concerns. The law violates American users' right to access and choose social media platforms.

In separate lawsuits, TikTok and several of its creators have sued the state of Montana. There are many reasons for me, as a lawyer, to believe the cases will succeed and the ban will be overturned. As one expert said, "Montana's TikTok ban is laughably unconstitutional, but it's also comically difficult to enforce." The law, however, is not a laughing matter, although it is unconstitutional.

First, the law clearly violates the First Amendment right of TikTok and its users to free speech. TikTok has the constitutional right to editorially decide whether and how to host, distribute and promote creator-made speech.

According to a 2022 study by Pew Research Center, about a quarter of US citizens below 30 regularly get their news from TikTok, while news consumption has declined or has not increased on many other social media sites, including Facebook. Also, "political speech," a staple of news websites, is the most protected form of free speech under the Bill of Rights.

Second, SB0419 is premised on the false assumption that espionage is involved.

Third, the US Constitution's commerce clause limits the power of states to burden interstate and foreign commerce unduly. By banning TikTok in Montana, the law interferes with TikTok's operation and accessibility in other states, not least because technological limitations may result in the site being banned or curtailed in different conditions, as app stores can't geofence on a state-by-state basis.

And fourth, the Constitution prohibits "bills of attainder," which are laws, such as SB0419, that single out persons or entities and impose penalties on them without a trial.

The SB0419 is also a laughably bad policy.

The Montana administration claims it protects people's privacy in the state. But TikTok collects less identifiable data than other social media sites. Unlike some, it does not collect precise location data or requires a real name. Suppose another country, or anyone else, wants user data. In that case, they are readily available, for a price, from data brokers who have harvested user information, including mobile phone locations, from social media sites. So if the US state wanted to protect people's privacy, it would have banned all social media sites or enacted broad privacy protection regulations like the European Union General Data Protection Regulation.

The US always complains about China. But its actions have always made it clear that "rules are for thee, and not for me." In addition, one overwhelming advantage the US has is jurisdiction over the small number of big companies that run the modern internet.

More important, Section 702 of the Foreign Intelligence Surveillance Act gives the US the power to compel these companies to allow access for the Central Intelligence Agency and the National Security Agency to intercept social media conversations of users, both foreign and, through the use of so-called "backdoor searches," US citizens. In 2021, the most recent year for which data are available, the US targeted 232,432"non-US persons." The number doesn't include US citizens.

Some other US states and the federal government are waiting to see what happens to Montana's law before enacting similar laws. For example, a Democrat member introduced the "RESTRICT Act (Restricting the Emergence of Security Threats and Risk Information and Communications Technology Act)" in the Senate in March. The bill proposes that the US secretary of commerce be given the power to review business transactions involving certain information and communications technologies, products, or services if connected to a "foreign adversary" that poses an "undue and unacceptable risk" to the US. Several legislators have opposed the bill.

If enacted, this bill, too, is likely to fail on First Amendment grounds.

Montana leads the way in hypocrisy. But that should not come as any surprise. It is a state where you can buy an assault rifle without a background check and carry a concealed weapon without a permit. Still, to protect the public, the state administration bans TikTok.

This happens only in the US.