Montana's TikTok Ban In Three Minutes or Less

Plus a Title 42 update

Montana has become the first state in the nation to ban TikTok, the popular but controversial smartphone app. The new law, signed by Gov. Greg Gianforte on Wednesday, completely bans downloads of the app in the state and would fine platforms that allow downloads $10,000 per day.

The dangers of TikTok are one of the rare areas where both parties seem to find agreement. The app, which allows users to create and watch videos with a maximum length of three minutes, was created by Bytedance, a Chinese company, and there are concerns about everything from privacy and security to its effect on mental health.

Photo by Olivier Bergeron on Unsplash

India and Afghanistan have already banned TikTok and President Biden banned the app from federally-own phones earlier this year. Donald Trump attempted his own TikTok ban in 2020 and tried to force Bytedance to sell its US assets. Several other countries prohibit the app from being used on government devices. Interestingly, TikTok is not available in China, but Chinese users have access to a similar app called “Douyin.”

Onto this stage, Montana marches forward with its ban. Per the AP, an “entity” will be fined $10,000 per day if a user is “is offered the ability” to download the app in the state. Individual users will not be fined.

Immediately, I have questions. The First Amendment problem is obvious with TikTok already making the claim that the law infringes on its constitutional rights.

“Gianforte signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok,” TikTok said in a statement quoted by the Wall Street Journal.

Montana also has the additional problem of the interstate commerce clause. The Constitution gives Congress the authority to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Bytedance, a company that is based outside of Montana, would seem to fall under this category of federal jurisdiction.

A national ban on TikTok is still a possibility at the federal level, but such an attempt would also face free speech challenges. Axios notes that three bills currently being considered give the government more powers to regulate dangerous apps, but the ACLU is opposing at least one of the bills, the DATA Act, on First Amendment grounds.

There is also the technological challenge of banning a popular app. About 150 million Americans use the app and it would not disappear from their devices even if banned. App stores can be prevented from making the app accessible to American users, but these measures could be circumvented with virtual private networks (VPNs) that hide a user’s location.

It is even more difficult to stop TikTok downloads in a single state. TechNet, a trade group that represents Google and Apple, pointed out that app stores don’t have the ability to “geofence” individual states, reports the AP. If you’ve ever tried to stream video outside of the US, you know that this particular problem does not apply on a national level, however. Further, the Montana legislation doesn’t make internet service providers liable for access.

Montana Attorney General Austin Knudsen (who I can’t help but picture as looking like Jamie Dutton) said that the ban would be similar to laws that ban internet gambling in the state. Violations can be reported by anyone and the state will send a cease-and-desist order when it finds that a violation has taken place.

Knudsen said that the law puts the burden on companies “to not allow their apps to work in Montana and other states where they are not legal.”

Montana’s ban is set to start on January 1, which leaves more than half the year for legal battles to result in an injunction that stops the ban before it starts. My wager would be that the ban never takes effect.

I do think that the federal government should look into a nationwide TikTok ban on national security grounds. Even that would face legal challenges but it would have a better chance of standing than a single state’s ban.

Judges might be more amenable to security concerns if they came from the level of government that is responsible for national security and interstate and foreign commerce. That’s especially true if Congress gets behind a ban and passes a bill that gives specific authority to the Executive branch.

Whether at the federal or state level, I for one would love to hear descriptions of a Supreme Court oral argument in which the justices debate the relative legal merits of political expression through TikTok dances. I think we will get that chance soon.

ILLEGAL CROSSES PLUMMET AFTER TITLE 42: Speaking of things that end with a whimper, the end of Title 42 (here is an explanation of Title 42) turned out to be significantly less of a disaster than many Republican pundits had predicted.

Opponents of ending the Trump Administration’s pandemic measure had forecasted a surge in illegal border crossers that would tax already strained infrastructure. Instead, illegal entries plummeted from 10,000 per day to 4,400, a drop of more than 50 percent.

There are several factors that contribute to the lull. In addition to illegals being deported back to their home countries rather than just across the border into Mexico, there was surge of federal agents and the Biden Administration imposed new rules for asylum-seekers. Migrants may be assessing these rules and waiting to see if a court will strike them down.

The current drop is unlikely to be permanent. The forces that make America an attractive destination for immigrants are still present and our immigration system is still badly broken, but end-of-the-world doom and gloom is almost never accurate.