• by Wendy Davis , March 12, 2024

A Virginia-led coalition of 19 states is asking a federal appeals court to allow Montana to enforce a law banning TikTok, arguing that the law represents a valid consumer protection measure aimed at combatting “deceptive and harmful” business practices.

The ban “is justified because Montana justly concluded that TikTok engages in deceptive business practices which induce individuals to share sensitive personal information that can be easily accessed by the Chinese Communist Party, and because TikTok’s platform harms children in Montana,” the states argue in a friend-of-the-court brief filed this week with the 9th Circuit Court of Appeals.

The states are backing Montana's request to vacate an injunction issued last year by U.S. District Court Judge Donald Molloy in Missoula, who said the state law (SB419) likely violates the First Amendment and represents an unconstitutional attempt to regulate interstate commerce.

The states' brief comes the same week the U.S. House of Representatives is expected to vote on a bill that would prohibit app stores or websites from offering TikTok, unless the app is sold by its parent, the China-based ByteDance. The House Energy and Commerce Committee unanimously advanced that bill Monday; since then President Donald Trump has said he opposes the measure, even though he unsuccessfully attempted to ban TikTok during his presidency.

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 ban contended that ByteDance shares data about U.S. users with the Chinese government. The state legislature also also accused TikTok of failing to remove “dangerous content” that allegedly encourages young users to engage in risky activity.

TikTok and a coalition of users challenged the ban in court, arguing it was unconstitutional for several reasons, including that it violated the First Amendment by shutting down a communications platform.

TikTok also argued 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 viewing potentially dangerous content.

Montana recently asked the 9th Circuit to reverse Molloy's injunction, arguing that the bill's main purpose was to prevent “data harvesting” by China, as opposed to suppressing people's ability to express themselves.

The states supporting the ban contend that TikTok poses a particular threat to privacy, due to ByteDance's ties to China.

“TikTok user data are exposed to individuals subject to Chinese law, which, in turn, means that data are available to the Chinese government,” the states write.

TikTok is expected to respond by April 29.