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TikTok’s Lawsuit Against Montana Is a Test Case Amid National Ban Debate

TikTok is suing Montana to overturn a law aimed at stopping the app from being downloaded within the state.

The complaint filed on May 22 in federal court claims that a ban of TikTok violates the First Amendment by “unconstitutionally shutting down the forum for speech for all speakers on the app.” The Chinese-owned video app, used by more than 150 million users in the U.S., argues it’s a vital platform for communication and expression.

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Additionally, TikTok says that any blanket prohibition of app at the state level is preempted by federal law since “foreign affairs and national security are matters over which the U.S. Constitution vests exclusive authority in the federal government.”

The complaint seeks to overturn the law and block it from taking effect while the case is being considered.

“We are challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana,” the company said in a statement. “We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts.”

On May 17, Montana became the first state to adopt a ban after Gov. Greg Gianforte signed a bill requiring app stores to stop carrying TikTok. Though users people who already have the app can continue using it, TikTok won’t be allowed to operate in the state starting in 2024. On top of concerns that the app promotes content harmful to children, lawmakers mostly pointed to national security risks because the app, owned by Chinese parent company ByteDance, is under the influence of China.

A suit was widely expected to be filed in what could be seen as a test case of obstacles the government might face if it passes a national TikTok ban.

Lawmakers have offered no evidence that TikTok has provided American user data to the Chinese government or that it’s been directed to influence the content users see on the platform, though a former executive at ByteDance has come forward with accusations that the company provided backdoor access to data on U.S. users to China.

The suit calls the national security concerns “unfounded speculation.”

“The State cites nothing to support these allegations, and the State’s bare speculation ignores the reality that Plaintiff has not shared, and would not share, U.S. user date with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users,” the suit says.

TikTok argues that allowing the law to take effect will result in a “myriad of harms” to the company and its users, mostly stemming from the suppression of First Amendment rights.

“The ban would bar plaintiff from making editorial decisions on whether, and how, to publish and disseminate speech created by Montanans to others and vice versa,” reads the filing. “It would also prevent Plaintiff from creating and sharing its own content about a variety of issues and current events with Montanans.”

On top of its own free speech rights, TikTok stresses the impact a ban will have on users to communicate and participate in their community. It points to a rancher in Montana who shares videos of her experiences caring for sheep and a teacher who uses the platform to highlight issues in the education system. “More broadly, TikTok users of all stripes communicate and express their views on the app about the issues they care about, including individual rights and health care,” reads the complaint, which notes that the app has become a vital channel for voters to obtain information from elected officials and political candidates. “Many of the app’s features, such as the ‘stitch’ tool and in-video comment replies, provide users with an organic way to comment on political information.”

The suit also argues that the ban infringes on the federal government’s exclusive authority over matters of national security. Only the Committee on Foreign Investment in the United States and the president are authorized to take action against alleged national security risks arising out of foreign economic activities, according to the complaint.

TikTok has maintained that the most thorough way to address such concerns about the company is for CFIUS to adopt its proposal for ByteDance to continue owning the app in a deal that would silo U.S. user data and restrict access by employees in China. The agency has been reviewing ByteDance’s 2017 merger of TikTok and Musical.ly.

Additionally, the complaint alleges that a TikTok ban is unconstitutional because it violates the Commerce Clause, which limits the authority of States to enact legislation that unduly burdens interstate and foreign commerce, and illegally targets the company “rather than regulate social media companies more generally” for industry-wide data collection and security practices.

Acknowledging “legal concerns” about the ban after it was passed, the governor suggested changes that would’ve shifted the legislation’s focus from TikTok specifically to all social media applications connected to foreign entities. The proposal was shot down. It remains unclear how the ban can be enforced. Under the bill, fines will be levied against app stores that continue to offer the app past 2024 as well as TikTok.

Montana also faces a suit filed by TikTok creators on May 17 seeking to overturn the law for First Amendment violations.

TikTok’s suit will likely be viewed as a bellwether on how legal action challenging a national app ban, if one is implemented, will fare. In what may be the most similar case, a federal judge in 2020 blocked a government directive requiring Apple and Google to remove Tencent’s WeChat from their app stores. U.S. Magistrate Judge Laurel Beeler found that the order could infringe on users’ First Amendment rights by making the app unusable, stressing that the app is vital to communication. While there was a court order that same year blocking the Trump administration’s bid to ban TikTok, that ruling narrowly addressed president’s authority to prevent the app from being downloaded using his emergency economic powers.

TikTok has touted a partnership with Oracle to move its data on users stored on foreign servers to Texas, essentially firewalling the data the Chinese government could collect. The initiative, called Project Texas, includes audits of its algorithms and creating a subsidiary called TikTok U.S. Data Security to oversee content moderation policies and approve editorial decisions. American employees will report to an independent board of directors. The suit from the former ByteDance executive, however, claims that the effort won’t protect U.S. user data as long as the company maintains a backdoor channel in its code, which allows certain high level Chinese government officials to access the data.

There are several bills working their way through Congress that would take action against the app, including a measure backed by the White House that would establish a unified framework for reviewing and addressing foreign technology. Under the measure, the Commerce Department would have the authority to review, block or otherwise mitigate a range of transactions involving foreign information and communications technology products and services.

Chinese officials have said they’d oppose a forced sale of TikTok because it’d involve the export of technology that has to be approved by the government. As a private company, 60 percent of TikTok is owned by global institutional investors, 20 percent by its founders and 20 percent by employees. It has five board members, three of whom are U.S. citizens.

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