Montana’s First-in-the-US TikTok Ban Sows Doubt on Enforcement

Montana’s move to ban ByteDance Ltd.'s TikTok within its borders will test how well officials in the US can enforce restrictions against the besieged social media giant.

Under the ban—which is already facing a lawsuit filed by a group of TikTok creators—app platforms are barred from providing TikTok for download to state residents. Individual access of the app is also considered a violation of the law.

Montana’s ban is the strongest restriction targeting TikTok in the US to date in a broad national movement to curtail the app on government devices, over concerns about the Chinese government’s access to American user data. It’s unclear how Montana Attorney General Austin Knudsen (R) will be able to enforce the ban effectively, however.

“I’m not sure how the government plans to know if an individual is using the app unless they’re planning on surveilling everything that people in Montana do,” said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union.

Knudsen—who authored the draft bill and retains sole enforcement authority—can fine TikTok or app platforms like Apple Inc.‘s App Store or Alphabet Inc.‘s Google Play $10,000 per violation of the law and $10,000 for every additional day of noncompliance.

A violation of the ban occurs whenever a Montana resident accesses TikTok, is able to access TikTok, or is able to download the app. Individual users won’t be penalized under the law, however.

‘Stony’ Questions

It’s theoretically possible for app stores to limit access to certain apps by geography using a customer’s billing address, said Sandeep Prasanna, a senior litigation associate at Miller & Chevalier Chartered. That practice, known as geofencing, is already restricting access to online gambling apps in states where gambling is illegal.

“But if you really want to access those apps, there are ways to get around state by state bans,” Prasanna said. “There are VPNs, and if the app is already on your device, it’s not clear exactly whether there’s a mechanism to remove an app from a device where it’s already downloaded.”

Geofencing technology also isn’t completely accurate at identifying where state borders end, which could result in non-Montana residents—those living near the state border, for example—being misidentified and affected by the ban, according to tech law professor Eric Goldman of the Santa Clara University School of Law.

“This question about how do we set up geofences on the internet at the state level, raises some really stony technological and constitutional questions that have not been answered yet,” Goldman said.

Previous bans affecting TikTok access have been limited to government-issued devices at the federal and state level. Those are easier to enforce because the government has direct control over what is stored there, Prasanna said.

Apple didn’t respond to requests for comment on compliance with the law. A spokesperson for Google declined to comment.

A Knudsen spokesperson, Emily Cantrell, said the attorney general’s office expects covered entities to comply.

“If we receive reports otherwise, the Montana Department of Justice will investigate and hold offending entities accountable in accordance with the law,” Cantrell said in a statement. “Geofencing technology exists and is already in use across the gaming industry, which the Department of Justice also regulates.”

Another Knudsen spokesperson, Emily Flower, said the state would not target individuals but didn’t immediately comment about how it would treat existing TikTok downloads.

Court Battle

Besides practical enforcement questions, the ban is already drawing legal fire. Several TikTok creators in the state sued Montana in federal court on May 17, alleging that the ban suppressed free speech and violated constitutional due process protections.

“Whether it’s through this lawsuit or through any number of lawsuits that are likely to be filed in the next couple of months, I think this law is destined for a likely death in court before it’s scheduled to take effect on January 1,” Prasanna said.

The ACLU is currently evaluating its legal options, Leventoff said.

Groups including the ACLU have expressed concerns that the ban violates the US Constitution in several ways. For one, removing an entire state’s access to one of the most popular social media platforms for speech and expression is prior restraint, Leventoff said.

“Where the Montana bill still fails is that Montana is going to have a really difficult time proving that this is the least restrictive thing they can do to mitigate the threat,” Leventoff said.

The law could also face challenges that it violates constitutional bill of attainder clauses, which prohibit the government from inflicting punishment on an individual or group without first pursuing a court trial, said Ali Arko, a content removal attorney at Kohrman Jackson & Krantz LLP.

“Because it targets TikTok specifically, I think that’s what would open it up to that type of challenge,” Arko said. “If it was written more broadly to multiple different platforms, it might not fit as squarely within that challenge.”

Previous lawsuits successfully blocked TikTok restrictions imposed by the Trump administration, and the same law firm that won one of those cases, Davis Wright Tremaine LLP, is representing the litigants in the Montana ban.

“From my perspective, the plaintiffs in this case come in with a huge head of steam, because we literally have fought this battle before,” Goldman said.