HELENA, Mont. — Five TikTok content creators have filed a lawsuit seeking to overturn a planned ban on the video-sharing app in Montana, arguing the law is an unconstitutional violation of free speech rights.
The Montana residents also argued in a legal complaint filed late Wednesday in federal court in Missoula that the state doesn’t have any authority over matters of national security.
Republican Gov. Greg Gianforte signed the bill into law Wednesday and said it would protect Montana residents’ private data and personal information from being harvested by the Chinese government. The ban is scheduled to take effect on Jan. 1, 2024.
“We expected a legal challenge and are fully prepared to defend the law,” said Emily Flower, spokeswoman for the Montana Department of Justice.
TikTok has argued the law infringes on people’s First Amendment rights.
However, spokesperson Brooke Oberwetter declined to comment on the lawsuit Thursday. She also declined to say whether the company helped coordinate the complaint filed by the TikTok content creators.
The creators are five Montana residents who use the video-sharing app for things like to promoting a business, connecting with military veterans, introducing others to ranch life, sharing outdoor adventures or expressing their sense of humor. Some of them make significant money from the app, the complaint states.
The case could serve as a testing ground for the TikTok-free America many national lawmakers have envisioned. Cybersecurity experts say it could be difficult to enforce.
Adam Botkin, a football TikTok influencer, records a video for a post with Brandin Evans, right, at Washington-Grizzly Stadium in Missoula, Mont., on Monday. Botkin, gained notoriety on the social media platform after videos of him performing kicking tricks went viral. Tommy Martino/Associated Press
The lawsuit – filed without public notice just hours after Gianforte signed the measure into law – states the ban would “immediately and permanently deprive Plaintiffs of their ability to express themselves and communicate with others.”
“Montana can no more ban its residents from viewing or posting to TikTok than it could ban the Wall Street Journal because of who owns it or the ideas it publishes,” the plaintiffs’ attorneys wrote.
Some lawmakers, the FBI and officials at other agencies are concerned the video-sharing app, owned by ByteDance, could be used to allow the Chinese government to access information on U.S. citizens or push pro-Beijing misinformation that could influence the public. TikTok says none of this has ever happened.
A former executive at ByteDance alleges the tech giant has served as a “propaganda tool” for the Chinese government, a claim ByteDance says is baseless.
China passed laws in 2014 and 2017 that compel companies to cooperate with the country’s government for state intelligence work. TikTok says it has never been asked to hand over its data and it wouldn’t do so if asked.
“TikTok is spying on Americans. Period,” Montana Attorney General Austin Knudsen told a legislative committee in March. “TikTok is a tool of the Chinese Communist Party. It is owned by a Chinese company, and under China law, if you are based in China, you will cooperate with the Chinese Communist Party. Period.”
More than half the U.S. states, including Montana, and the federal government have banned TikTok from government-owned devices.
Montana’s law would prohibit downloads of TikTok in the state and would fine any “entity” – an app store or TikTok – $10,000 per day for each time someone “is offered the ability” to access the social media platform or download the app. The penalties would not apply to users.
Opponents say Montana residents could easily circumvent the ban by using a virtual private network, a service that shields internet users by encrypting their data traffic, preventing others from observing their web browsing. Montana state officials say geofencing technology is used with online sports gambling apps, which are deactivated in states where online gambling is illegal.
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