What does Montana’s TikTok ban actually mean?

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Well, would you look at that: Montana banned TikTok.

Why? “To protect Montanans’ personal and private data from the Chinese Communist Party,” Montana Governor Greg Gianforte tweeted(opens in a new tab).

In response, TikTok comms tweeted that the bill “infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state. We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana.”

What does the Montana TikTok ban mean?

On Wednesday, Governor Gianforte signed a bill into law that categorically bans TikTok(opens in a new tab) in the state. The law will go into effect on January 1, 2024, but only if it makes it that far — lawsuits to stop the ban are expected to hit the courts soon. The new law follows a ban prohibiting the use of TikTok on government devices in Montana, a far less controversial ruling that many other states and countries have also implemented.

The bill forbids all people in Montana from using the app, but it doesn’t penalize individuals. App stores and TikTok itself face a $10,000 initial fine and then an additional $10,000 daily fine if they offer TikTok downloads in the state. The fines will not apply to TikTok users themselves, “law enforcement activities, national security interests and activities, security research activities, or essential government uses permitted by the governor on the information technology system of the state,” according to the (opens in a new tab)bill. It is the single-most aggressive TikTok ban in the country. 

Can I use TikTok in Montana?

Right now? Yes. The ban doesn’t go into effect until January 1, 2024, so you can definitely still use and download TikTok in Montana today. 

How likely is it that TikTok will actually get banned in Montana?

The courts have the next seven-or-so months to ensure that this bill does or does not go into effect.

The bill is law right now, but as it doesn’t go into effect until January 2024, many organizations have already committed to fighting it — and they have the time. Jameel Jaffer, the executive director at the Knight First Amendment Institute at Columbia University, said in a statement that posting and consuming content on TikTok is an indisputable exercise of Montanan’s First Amendment rights. 

“Because Montana can’t establish that the ban is necessary or tailored to any legitimate interest, the law is almost certain to be struck down as unconstitutional,” Jaffer said. The Knight Institute is one of the dozen free speech, digital rights, and tech policy organizations to sign and send a letter to Congress opposing a nationwide ban on TikTok(opens in a new tab).

Keegan Medrano, policy director at the ACLU of Montana, said the Montana governor and legislature have “trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment.” The ACLU will likely take it to court because, as it said in a statement, there is not enough public evidence of harm.

Netchoice, a trade group both Facebook and Google are members of, said in a statement that this ban specifically violates Article I of the U.S. Constitution which prohibits “bills of attainder,” laws that “impose punishment on a specific person or entity without a formal trial.”

“The Constitution also clearly forbids lawmakers from passing laws that punish specific individuals or businesses and bans Americans from accessing constitutionally protected speech,” NetChoice Vice President and General Counsel Carl Szabo said in a statement. “We are disappointed to see Gov. Gianforte sign this plainly unconstitutional bill.”

How can I download TikTok in Montana after the ban goes into effect?

If — and that’s a strong if — TikTok does get banned in Montana, users can likely still download the app on an app store by crossing state lines or using a VPN. There is currently no penalty for TikTok users who post on the app or consume content on the app in Montana.

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