TikTok users in Big Sky Country are free — for now — to keep watching short-form videos on the app in the new year.
A federal judge issued a preliminary injunction Thursday blocking Montana’s first-of-its-kind U.S. ban of TikTok in the state, ruling that the law set to take effect Jan. 1, 2024, likely was unconstitutional.
The bill was signed into law in May 2023 by Montana Gov. Greg Gianforte, who said it would “protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party.” TikTok — owned by Chinese internet giant ByteDance — has been a political football for several years, targeted by American lawmakers who are wary over its ties to China and how TikTok handles user data.TikTok sued to overturn the Montana law, arguing that it violates the First Amendment, and has said allegations that the Chinese government could access data on TikTok users are unfounded.
In the Nov. 30 ruling, U.S. District Court Judge Donald Molloy granted TikTok’s request for a preliminary injunction, enjoining the Montana law — referred to as SB 419 — until “a final determination on the merits” of the state’s claims is made.
Montana’s TikTok ban “oversteps state power and infringes on the Constitutional rights of users and businesses,” Molloy wrote.
The judge noted that the state’s defense of SB 419 “rests on the proposition that the First Amendment is not implicated at all because the bill does not regulate speech” and that the state argues that the Montana legislature “may make its own reasoned judgment about what conduct is permitted or proscribed within its borders.” But Molloy disagreed, writing that the law is “not merely a generally applicable consumer protection statute without any First Amendment implications.”
TikTok successfully demonstrated that Montana’s law “is unlikely to pass even intermediate scrutiny” and that therefore the ban “likely violates the First Amendment,” per Molloy’s ruling.
Molloy also wrote that the record “leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers… In showing its foreign affairs hand, the State has identified the Achilles’ heel of SB 419.”
A copy of the ruling is available at this link.
A TikTok rep said in a statement that it was “pleased the judge rejected this unconstitutional law and hundreds of thousands of Montanans can continue to express themselves, earn a living and find community on TikTok.” A spokesperson for Montana Attorney General Austin Knudsen, the named defendant in the case, noted the ruling is preliminary said said, “We look forward to presenting the complete legal argument to defend the law that protects Montanans from the Chinese Communist Party obtaining and using their data.”
Under Montana’s SB 419, starting Jan. 1, 2024, TikTok would have faced fines of up to $10,000 per day per violation if it continued to operate in the state. In addition, the law would allow the state to impose penalties on Apple and Google if they let users in Montana download the app from their respective app stores.
The text of the Montana law reads in part, “the People’s Republic of China is an adversary of the United States and Montana and has an interest in gathering information about Montanans, Montana companies and the intellectual property of users to engage in corporate and international espionage.” The law also says that China’s government “exercises control and oversight over ByteDance, like other Chinese corporations, and can direct the company to share user information, including real-time physical locations of users.” In addition, the law alleges that “TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities.”
TikTok argued in court filings that Montana’s allegations that the Chinese government could access data on the app’s users that the app “exposes minors to harmful online content” are unsubstantiated. 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 data with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users, including by storing all U.S. user data by default in the United States and by erecting safeguards to protect U.S. user data,” it said in its lawsuit challenging the Montana law.
