Why Montana’s TikTok ban might not work

(CNN) Montana has become the first US state to ban TikTok from all devices, even personal ones, triggering renewed doubt about the future of the short-form video app in the country.

On Wednesday, the state’s governor, Greg Gianforte, signed a bill into law that would fine TikTok and online app stores for making the service available to state residents. It will take effect next year.

The move goes beyond other states that have restricted TikTok on government devices. It also comes at a time when some federal lawmakers are pushing for a nationwide ban.

But legal and technology experts say there are significant hurdles for Montana, or any state, to implement such a law. The TikTok ban immediately prompted a lawsuit from TikTok users who say it violates their First Amendment rights, with more legal challenges expected. Even if the law allows, the practicalities of the internet can make it impossible to keep TikTok out of users’ hands.

How can a state ban TikTok?

Montana’s new law, SB419, makes it illegal for TikTok and app marketplaces to offer the TikTok service across state lines.

Passed in April, the bill establishes fines of $10,000 per violation per day, with a violation defined as “each time a user accesses TikTok, offers the ability to access TikTok, or offered the ability to download TikTok.”

Individual users themselves won’t be on the hook just for accessing TikTok, according to the law.

If the law holds up in the courts, TikTok, and companies like Apple and Google, will be forced to find ways to restrict TikTok from Montana smartphone users — or face hefty fines.

But that’s a big if.

Will there be legal challenges?

TikTok and other civil society groups have warned that the law as written is unconstitutional. There are two main arguments cited by TikTok’s defenders.

One is that the law violates Montanans’ First Amendment rights, by restricting their ability to access legal speech and by infringing on their own free speech rights through the app.

On Thursday, the American Civil Liberties Union accused Gianforte and the state legislature of “trampling on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small businesses in the name of anti-Chinese sentiment.”

A group of TikTok users voiced that complaint in a lawsuit filed Wednesday night in the US District Court for the District of Montana, hours after the governor’s signature. “Montana can no more ban its residents from watching or posting on TikTok than it can ban the Wall Street Journal because of who owns it or the ideas it publishes,” according to the complaint. .

Another charge is that the law represents an unconstitutional “bill of attainder,” or a law that punishes someone without due process.

NetChoice, an industry trade group that counts TikTok as a member, said the bill “ignores the US Constitution.”

“Government may not impede our ability to access constitutionally protected speech — whether it’s in a newspaper, on a website or through an app,” said Carl Szabo, general counsel of NetChoice.

A spokesman for Gianforte did not immediately respond to a request for comment.

How will Montana enforce the TikTok ban?

Even if the law survives a legal challenge, experts say its breadth could make effective implementation and enforcement difficult.

For one thing, app stores like Apple’s operate on a country-by-country basis and can’t filter apps at the state level, many experts said.

As a result, there is no way for companies like Apple and Google to practically comply with the law, TechNet, a trade organization that counts those companies as members, told Montana lawmakers at a March hearing.

“The app stores,” a witness told TechNet at the hearing, “don’t have the ability to geofence on a state-by-state basis. So it would be impossible for our members to prevent app downloads specifically in the state of Montana.”

The openness of the law means massive unlimited liability for TikTok and app store operators.

“What this really does is create huge potential liability for both TikTok and the mobile app stores,” said Nicholas Garcia, policy adviser at the consumer advocacy group Public Knowledge. “And all they have to do is figure it out, under the threat of Montana coming in and saying, ‘You’re not following the law.'”

It’s unclear how, exactly, Montana officials might determine noncompliance.

One sure way would be for Montana officials to try to download or access TikTok themselves on devices they control, and if they’re successful, sue TikTok or app store companies for violations that that, said Alan Rozenshtein, an associate law professor at the University of Minnesota. But it won’t detect violations that occur on devices used by the wider public, which is the whole point of the ban, he added.

“That would require Montana to conduct surveillance on its own citizens of who is downloading, and how,” Rozenshtein said. Alternatively, he added, Montana could try to get court orders that compel companies to hand over business information — such as billing data or other non-content information related to users — that could identify them. them as Montana residents.

Authorities could also try to subpoena TikTok or the app stores for information on users who accessed or downloaded TikTok from within the state, but those requests wouldn’t capture many people who tend to evade the ban using more sophisticated methods.

Virtual private networking (VPN) services will make it trivial for users to get around the restrictions, according to Evan Greer, director of Fight for the Future, a consumer advocacy group. A VPN can make a user in Montana appear as if they are connected to the internet from outside state lines.

“Any teenage anime fan or British TV aficionado can tell you how to get around that silly ban with a VPN,” Greer said.

Officials may try to widen their dragnet by asking companies to use additional data they have on their users to make inferences about who might be accessing TikTok. But depending on the scope of such a request, it could trigger legal objections and privacy concerns — if additional data is even available.

Requiring internet providers to implement statewide network filters could be another way to enforce the law, Garcia said. But internet providers are not named as a type of entity subject to TikTok’s ban.

“So the only reason they’re going to get involved is if TikTok or Apple and Google want them,” Garcia said, “and make some business case as to why they should do that effort on a contractual basis or something .”

However, Rozenshtein said, just because Montana’s law is silent on internet providers doesn’t preclude Montana from potentially seeking a court order forcing broadband companies to filter TikTok traffic at the level of the network.

Why did Montana ban TikTok?

Like dozens of other states that have imposed some level of restrictions on TikTok, Montana’s government has cited the app as a potential privacy and security risk.

US officials are concerned that TikTok’s links to China through its parent company, ByteDance, could result in American personal information being leaked to the Chinese government. That could help China in espionage or disinformation campaigns against the United States, according to authorities.

However, for now, the risk seems hypothetical: There is no public evidence to suggest that the Chinese government has actually accessed TikTok user data in the US. And TikTok isn’t the only company that collects large amounts of data, or could be an attractive target for Chinese espionage.

TikTok said it is working on a plan to store US user data on cloud servers owned by US tech giant Oracle, and that once the initiative is complete, access to the data will be managed by US employees.

More than half of US states have announced some restrictions on TikTok that affect the app on government devices. Montana’s ban marks the beginning of a new phase, however — and widely anticipated legal challenges could determine whether other states follow suit.