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Montana’s TikTok ban will be nearly impossible to enforce

May 30, 2023

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Montana is the first state to ban the use of TikTok. The state cited fears that the Chinese-owned company is stealing the private data of its U.S. users.

“The Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented,” Montana’s Gov. Greg Gianforte, R, said. TikTok is fighting back, filing a lawsuit that alleges the ban — slated to start early next year — violates the U.S. Constitution.

Straight Arrow News contributor David Pakman wonders if any of this matters because even if the ban holds up in court, he thinks it’ll be nearly impossible to enforce.

I don’t believe it’s the role of state government to decide which apps people can or cannot use based on whatever is being used to determine that TikTok isn’t allowed, but Facebook or whatever, is. If you want to pass a law that specifically addresses what information can or cannot be collected by an app — or as has been done in Europe, you have to pop up a disclaimer saying, “Hey, we collect ABC in a way that is conspicuous” — that’s one thing and I would be fine with that if that’s what Montana or the United States wanted to do. 

But this is, at the end of the day, going to be a law that is targeted in a particular way and that I do believe is limiting on speech, and unfairly is targeting TikTok. Doesn’t mean there aren’t concerns, but pass the laws based on activities, rather than saying we are banning TikTok. 

Now, what do I think the long-term trajectory of this ban is going to be? I actually don’t think it’s going to hold up. And even if it does, it’s not really going to prevent Montanans from using TikTok, because as I said, if you already have it on your phone, you can have until December 31 to install it. If you leave Montana, install it and come back, that’s all allowed. You can also use a proxy. You can use a VPN — there’s all these different things. I think it has very little teeth. It’s a virtue signal from the governor, Greg Gianforte. I believe it will not stand. And even if it does, it won’t really change very much.

The state of Montana has become the first US state to ban the social media app. TikTok. This is something that’s been floated and discussed for a while now on the basis of TikTok being used by China to collect information about Americans and for other reasons. Now, there’s a few different layers to this. The first is what does it mean to ban TikTok. The second is whether this is in general, the right approach in terms of dealing with an app that is seen as potentially a national security risk or in some way adversarial to US interest. So first and foremost, when we say that Montana ban TikTok, what we mean is, Montana is saying that within the state on on internet connected devices within the state TikTok can’t be listed in the Android Google Play Store, or the Apple store. Now, they have also said as part of this bill, that if you already have the app on your phone, or you leave Montana and go to a different state, install the app, come back, but use it in Montana, you are not going to be persecuted, they are not going to go after you for that. Now, what about the facts? There is not any direct evidence right now that the Chinese Communist Party or the Chinese government have ever access TikTok user data? The criticism is laws in China allow the government to access a company’s customer records. And could they do it? It’s not clear when the CEO of tick tock testified before Congress, he said, well, the data centers are in other countries, the data centers are in the United States and they’re in Singapore. So I don’t think today, we are going to be able to ascertain exactly how likely it is that the Chinese government would access my user data or your user data from TikTok. The other aspect of this is will it stand legally? And what I mean by that is the ban is scheduled to start January 1. And TikTok is certainly going to challenge the bill in federal court. The ACLU has said the bill is unconstitutional. Let’s put aside the legal question. As a progressive what is my opinion about such a move? I believe that the Montana TikTok ban is misguided. And it is an authoritarian attempt to censor and to stifle creativity. Now, I would never deny that there are legitimate concerns about tick tock and data handling, as there are with Google, as there are with Facebook and others. The difference is the China element, which is what makes it sort of qualitatively different. But you could also argue that it’s qualitatively different in a xenophobic way with unfounded claims about tick tock as a national security and privacy risk of some form. I also do believe that there are First Amendment concerns. If you’re a Montanan. And you use tick tock for expression and communication of whatever your views are, your views might be liberal, your views might be conservative, whatever. I don’t believe it’s the role of state government to decide which apps people can or cannot use, based on whatever is being used to determine that TikTok isn’t allowed, but Facebook or whatever it is, if you want to pass a law, excuse me, that specifically addresses what information can or cannot be collected by an app, or as has been done in Europe, you have to pop up a disclaimer saying, Hey, we collect ABC in a way that is conspicuous. That’s one thing and I would be fine with that if that’s what Montana or the United States wanted to do. But this is, at the end of the day, going to be a law that is targeted in a particular way. And that I do believe is limiting on speech and unfairly is targeting tick tock doesn’t mean there aren’t concerns, but pass the laws based on activities, rather than saying we are banning TikTok. Now, what do I think the long term trajectory of this band is going to be? I actually don’t think it’s going to hold up. And even if it does, it’s not really going to prevent Montanans from using TikTok because as I said, if you already have it on your phone, you can’t you have until December 31 to install it. If you leave Montana, install it and come back. That’s all allowed. You can also use a proxy. You can use a VPN it does all these different things. I think it has very little teeth. It’s a virtue signal from the Governor Greg Gianforte, I believe it will not stand and Even if it does it won’t really change very much

 

 

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