• by Wendy Davis  @wendyndavis, July 7, 2023

TikTok and five of its users have asked U.S. District Court Judge Donald Molloy in Missoula, Montana to block enforcement of a new state law banning the app.

“The state’s ban is unconstitutional,” TikTok says in its request for an injunction. “It violates the First Amendment rights of Plaintiff TikTok Inc. and the thousands of Montanans who use TikTok to communicate.”

The Chinese-owned company adds that the ban is overridden by federal law because only the federal government has authority over national security issues. Five users who sued raise similar claims in a separate request for an injunction.

The law, which was signed earlier this year by Governor Greg Gianforte, prohibits app stores from offering TikTok to people in Montana, and prohibits the use of the app in the state (with some exceptions for law enforcement). The measure doesn't penalize users, but provides for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces.

Unless blocked, the law will come into effect on January 1 of next year.

Montana lawmakers who drafted the measure expressed concerns that TikTok's parent company, ByteDance, shares data about U.S. users with China. Concerns regarding possible data sharing with China have spurred other states to prohibit use of the app on government-owned devices or public WiFi networks, but Montana is the only state so far to enact legislation banning the TikTok.

TikTok argues that concerns regarding national security can only be dealt with on the federal level.

"The state cannot justify a ban on speech by pointing to an interest for which it has no constitutional authority to legislate,” TikTok writes, adding that Montana “has neither legal authority nor practical expertise to legislate in the realm of national security.”

Montana legislators also accused TikTok of failing to remove “dangerous content” that allegedly encourages young users to engage in risky activity, such as “throwing objects at moving automobiles,” “inducing unconsciousness through oxygen deprivation,” and “cooking chicken in NyQuil.”

But TikTok says in its request for an injunction that Montana lawmakers failed to analyze TikTok's safety features or content moderation policies, which prohibit uses from promoting dangerous activities. What's more, TikTok argues, other apps that may show users' objectionable content are still available in the state.

“Even if the state could show that TikTok’s moderation processes were deficient, any resulting increase in dangerous content on TikTok would still not be a basis to ban the app because it would not eliminate such content from other platform,” the company wrote.

Earlier this year, digital rights organizations opposed the law, arguing that it would violate free speech principles.

“TikTok is home to massive amounts of protected speech and association: it enables Montana residents to discuss their opinions, share their hobbies, make art, and access news from down the street and around the world,” The American Civil Liberties Union, Center for Democracy and Technology, Electronic Frontier Foundation and other digital rights organization argued in a letter sent earlier this year to Montana lawmakers.

They added that the law "would unjustly cut Montanans off from a platform where they speak out and exchange ideas everyday, and it would set an alarming precedent for excessive government control over how Montanans use the internet.”

Molloy plans to hold a hearing in the matter on October 12.