Montana Gov. Greg Gianforte on Wednesday signed a first-of-its-kind law that makes it illegal for TikTok to operate in the state, setting up a potential legal battle with the company amid a series of questions about whether the state can even enforce the law.
The new rules in Montana will have more far-reaching effects than the TikTok ban already in place on government-issued devices in nearly half of the US states and federal government. There are 200,000 TikTok users in Montana as well as 6,000 businesses using the video-sharing platform, according to company spokesperson Jamal Brown.
Here’s what you need to know:
Why does Montana block TikTok?
Supporters of the law in Montana claim that the Chinese government could collect US user data from TikTok and use the platform to spread pro-Beijing misinformation or messages to the public.
That mirrors arguments made by a bipartisan group of lawmakers in the US Senate, as well as the heads of the FBI and CIA, all of whom have said TikTok could pose a national security threat because its parent company is based in Beijing. Byte Dance operate under Chinese law.
Critics have pointed to China’s 2017 National Intelligence Law, which forces companies to cooperate with the country’s governments for state intelligence work. Another Chinese law, implemented in 2014, has similar mandates.
TikTok says it has never been asked to hand over its data, and would not do so if asked.
How do you ban Plan Montana on TikTok?
The law would ban TikTok downloads in the state and fine any “entity” — an app store or TikTok — $10,000 per day for each time someone accesses TikTok, they are “offered the ability” to access or download it.
This means that Apple and Google, who operate the app stores on Apple and Android devices, will be liable for any violations. Penalties will not apply to users.
The statewide ban will not take effect until January 2024. It will be void if the social media platform is sold to a company that is not located in “any state designated as a foreign adversary” by the federal government.
The governor indicated that he wanted to broadens The bill to other social media apps in order to address some of the “technical and legal concerns” of the bill. But the legislature adjourned before the bill was sent to it, which meant that it could not introduce its amendments.
Montana Attorney General Austin Knudsen cited the technology used to restrict online sports gambling apps as a way to limit TikTok from operating in the state. Anyone can report these violations. Once the state verifies that a breach has occurred, it sends a cease and desist letter to the company in question, said Keller Nereson, a spokesperson for Knudsen’s office. He said different companies use different approaches to compliance and it’s up to them to “not allow their apps to work in Montana and other states where they’re not legal.”
So, can TIKTOK BAN work?
Cybersecurity experts say that other than avoiding a fine, there is nothing incentivizing the companies involved to comply and it would be very difficult – if not impossible – to apply the law adequately.
First, the United States has nothing equivalent to Type Control countries like China on what their compatriots are up to on the web. Compounding this, ISPs are out of the picture.
Before the Montana law was passed, lawmakers rewrote parts of the bill to allow them to get rid of the problem after an AT&T lobbyist said during a February hearing that the legislation was “unworkable” to be implemented.
Can tech companies block it?
Apple and Google have not spoken out against the law. But a representative for TechNet, the trade group that counts the two tech giants as members, said that app stores don’t have the ability to “geo-locate” apps to different states and it would be impossible to block TikTok downloads in Montana. The group also said that the responsibility should lie with the app to decide where it can work, not the App Store.
Roger Entner, communications analyst at Recon Analytics, says he believes app stores could have the power to enforce the law, but implementing them would be cumbersome and riddled with loopholes. Billing associated with addresses for Apple and Google using prepaid cards and IP geolocation can be easily bypassed using a VPN service, which can change IP addresses and allow users to evade content restrictions, said Will Stravash, mobile security expert, founder of Guardian. Creates a privacy protection application for Apple devices.
Oded Vanunu, head of product vulnerability research at cybersecurity firm Check Point, agreed that it would be difficult for app stores to isolate a single instance of an app download. He suggested that it would be more feasible than TikTok’s compliance because it controls the software and can “adjust settings based on the geographic location or IP addresses” of users.
Can TikTok prevent itself?
When users allow TikTok to collect their location information, it can track a person at least 3 square kilometers (1.16 square miles) from their physical location. If this feature is disabled, TikTok can still collect approximate location information — such as the area, city, or zip code a user may be located in — based on device or network information, such as an IP address.
But similar to app stores, cybersecurity experts point out that any enforcement actions the company implements can easily be bypassed with a VPN and efforts to use IP geolocation could lead to other problems.
Cell providers may be using the same types of IP addresses for multiple states, said David Choffnes, executive director of the Cybersecurity and Privacy Institute at Northeastern University, which could mean someone not located in Montana could be improperly blocked from using TikTok.
What will happen next?
Likely a legal battle.
Knudsen, the Montana attorney general, had already said he expected the law to end up in court.
TikTok spokesperson Brooke Oberwetter said in a prepared statement Wednesday that the law violates Montanans’ free speech rights and is illegal.
“We want to reassure Montanas that they can continue to use TikTok to express themselves, make a living, and find community while we continue to work to defend the rights of our users inside and outside Montana,” said Oberwetter.
Oberwetter declined to say whether the company will file a lawsuit, but described some of the legal issues involved. She said Montana is trying to sidestep US foreign policy by claiming that the bill addresses a national security risk. She said that foreign policy and national security laws are not made at the state level.
NetChoice, a trade group that represents TikTok and other technology companies, says the bill violates the First Amendment and “Bill” laws that prohibit the government from imposing a penalty on a specific entity without a formal trial.
