• by Wendy Davis  @wendyndavis, March 4, 2024

Montana's attorney general is asking a federal appellate court to allow enforcement of the state's first-in-the-nation ban on TikTok, arguing that the prohibition marks a valid attempt to prevent the Chinese government from obtaining people's data.

The controversial law “is a common sense consumer protection regulation designed to eliminate the threat of a known bad actor obtaining and misusing Montanans’ data,” state Attorney General Austin Knudsen argues in papers filed Friday with the 9th Circuit Court of Appeals.

He is urging the court to vacate an injunction against enforcement issued last year by U.S. District Court Judge Donald Molloy in Missoula, who said the state's ban (SB419) likely violates the First Amendment and represents an unconstitutional attempt to regulate interstate commerce.

The statute, originally slated to take effect January 1, would have prohibited app stores from offering TikTok, owned by the Chinese-based ByteDance, to users in Montana. The measure also would have prohibited people from using TikTok in the state (with some exceptions, including for law enforcement). The law provided for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces, but wouldn't have penalized consumers.

Montana lawmakers who passed the bill expressed concerns that ByteDance shares data about U.S. users with the Chinese government.

The legislature also 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.”

Dozens of other states have banned TikTok from government-owned devices or networks, but Montana alone passed legislation prohibiting use of the app on personal smartphones.

TikTok and a coalition of users challenged the ban, arguing it's unconstitutional for several reasons including that it violated the First Amendment by shutting down a platform that people used to communicate with each other.

TikTok also said there was no evidence the app had been used for espionage on behalf of a foreign government.

When Molloy halted enforcement, he wrote that the law wasn't “narrowly tailored” to either preventing China from accessing data about U.S. residents, or protecting minors from accessing dangerous material.

“It is well-established that other social media companies, such as Meta, collect similar data as TikTok, and sell that data to undisclosed third parties, which harms consumers,” he wrote, adding that foreign adversaries could also obtain consumers' personal information by purchasing it from data brokers, and by hacking.

Molloy also said the bill wouldn't “reasonably prevent” minors from accessing dangerous content.

Montana contends the bill doesn't violate the First Amendment for several reasons, arguing that lawmakers' main purpose was to regulate “data harvesting” by China, as opposed to residents' ability to express themselves.

“SB419 targets a hostile foreign government’s massive data-harvesting efforts intentionally directed at Montanans,” the attorney general writes in the state's appellate brief.

He goes on to compare the TikTok ban to a prohibition on a “cancer causing radio,” arguing that such a prohibition would also be valid even though its used for communications.

TikTok is expected to respond to Knudsen's argument by April 29.