• by Wendy Davis , August 21, 2023

Montana's ban on TikTok is justified by concerns about residents' data, the state attorney general says in a new court filing.

“Montana’s police power comfortably lets it regulate ... products or practices that, in Montana’s judgment, impose unjustifiable consumer harms,” Attorney General Austin Knudsen says in papers filed Friday with U.S. District Court Judge Donald Molloy in Missoula.

Knudsen contends that even though people use the app for speech and other purposes protected by the First Amendment, the ban is warranted due to “harms inseparable from TikTok’s data-harvesting practices and ownership by a hostile foreign government.”

The attorney general's argument comes in response to a challenge brought by TikTok and users who argue that the ban on the app, owned by Beijing-based ByteDance, violates the First Amendment. They have asked Molly to prohibit the state from enforcing the new law, which is slated to take effect in January.

Knudsen's office opposes that request, arguing that the First Amendment doesn't prevent the government from enacting consumer protection laws.

“Were it otherwise, Montana would be powerless to ban a cancer-causing radio merely because that radio also transmitted protected speech, or to ban sports-betting apps merely because those apps also shared informative videos teaching their users the intricacies of sports gambling,” his office writes.

The Montana law, passed earlier this year, prohibits app stores from offering the app to people in Montana, and prohibit 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.

When the bill was passed, Montana lawmakers expressed concerns that TikTok's parent company, the Beijing-based ByteDance, shares data about U.S. users with China. Officials in other states have expressed similar concerns and prohibited use of the app on government-owned devices or public WiFi networks, but haven't attempted to ban residents from using the app.

The Montana legislature also accused TikTok of failing to remove “dangerous content” that allegedly encourages young users to engage in risky activity.

TikTok's lawsuit is backed by other groups, including the Reporters Committee for Freedom of the Press and Media Law Resource Center, civil liberties organizations, and various tech industry associations.