• by Wendy Davis  @wendyndavis, October 12, 2023

A federal judge on Thursday appeared unconvinced that a new Montana law banning the popular app TikTok was justified by privacy concerns.

“Seems like there are a lot of things that could have been done short of an outright ban,” U.S. District Court Judge Donald Molloy said during a 70-minute hearing over the law's constitutionality. 

At the hearing, state Solicitor General Christian Corrigan argued the ban was aimed at protecting Montana residents' privacy.

But Molloy countered that TikTok users voluntarily provide data to the app, owned by the Chinese company ByteDance.

“Your argument just confuses me,” Molloy told Corrigan.

“If they want to give that information ... how is it that you can protect them?” Molloy said. “That's sort of a paternalistic argument.

The ban, slated to take effect next year, prohibits app stores from offering TikTok to users in Montana, and prohibits people from using TikTok in the state (with some exceptions, including 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.

Lawmakers in other states have banned the app from government-owned devices or networks, but Montana is alone in prohibiting use of the app on personal smartphones.

When Governor Greg Gianforte signed the bill, he tweeted that it would “protect Montanans’ personal and private data from the Chinese Communist Party.”

A group of TikTok creators and the company are challenging the statute in court. Among other arguments, they say outlawing a communications platform violates the First Amendment.

Montana's Corrigan contended that even though the ban implicates speech, it's a valid consumer protection measure --  comparable to a ban on a particular cell phone that causes cancer. 

Molloy responded, "I think that's not a very good analogy, but that's your argument."

Ambika Kumar, who represents the TikTok users, argued to Molly that Montana could protect people's privacy by enforcing its separate privacy law, instead of banning the app.

At one point Molloy asked Kumar why her clients couldn't simply create content for other social platforms.

“TikTok is unique,” she answered, adding that the video-sharing app doesn't have profile pages, or focus on users' friends or family.

Molloy reserved decision.