On Wednesday, Montana became the first state in the US to ban the app TikTok.
“Today, Montana takes the most decisive action of any state to protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party,” said Montana Governor Greg Gianforte, in a statement.
The bill, which would go into effect on January 2024, would prohibit downloads of the app in the state and would fine any “entity” - an app store or TikTok itself - $10,000 a day anytime someone “is offered the ability” to download the app. For the moment, the penalties would not apply to users, but that would mean that stores like Google and Apple would be liable for violations.
According to a report from the Associated Press, TikTok says there are some 200,000 users in Montana, as well as 6,000 businesses that use the platform. In a statement from the company in March, TikTok touted that 150 million Americans across the nation use the app as of February 2023.
The bill is expected to be challenged in court and if it were to hold up, would have wide reaching ramifications in the United States for technology, social media, and free speech.
Gianforte, whose political rise became international news in 2017 when he body slammed a Guardian journalist on the eve of his election to Congress, along with a wide variety of American politicians have said that the desire to curtail or outright ban TikTok use is over alleged concerns over data mining and the app being a “propaganda tool for the Chinese government.”
According to ABC, Keegan Medrano, policy director for the ACLU of Montana, said the Legislature “trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information and run their small business, in the name of anti-Chinese sentiment.”
On Twitter, the ACLU said “This law tramples on our free speech rights under the guise of national security and lays the groundwork for excessive government control over the internet.
Elected officials do not have the right to selectively censor entire social media apps based on their country of origin.”
Tiktok has vehemently denied that it shares data with the Chinese government. In a March congressional hearing, CEO Shou Zi Chew said the company has been building a “firewall to seal off protected U.S. user data from unauthorized foreign access.”
“The bottom line is this: American data stored on American soil, by an American company, overseen by American personnel," Chew said, according to Reuters.
While privacy and data collection should absolutely be concerns, TikTok is far from alone in the practice of harvesting user data and handling it improperly. Nearly every major social media and tech company not only employs the practice but has had issues with handling user data.
Meta - which owns Facebook, Instagram, and WhatsApp - agreed in December of 2022 to pay $725 million to settle a class action lawsuit as a result of revelations in 2018 that a third party, a data analytics firm called Cambridge Analytica employed by the Trump campaign, “may have” improperly accessed the personal information of some 87 million users. Meta was also fined $400 million by an EU privacy regulator in January for illegally forcing users to accept personalized ads. In November of 2022, Snapchat settled a lawsuit for $35 million in Illinois alleging the company violated the Illinois Biometric Information Privacy Act. In 2019, Google and YouTube paid a record $170 million to settle a complaint brought by the Federal Trade Commission and New York Attorney General alleging YouTube illegally collected the personal information of children without parental consent. Twitter is also facing a wide-ranging investigation by the FTC into its privacy practices.
While the federal government and at least 34 states ban the app on official phones - employees of governments and agencies are barred from using the app on their work phones - a blanket ban across an entire state could be extremely hard to enforce. Even if the app were unavailable for download directly from an app store or geofencing technology were employed to enforce the ban, they can be bypassed by using VPN services.
Immediately enforceable or not, the ban sets up a drastic and dangerous precedent for government overreach into how and what Americans use to access social media and communicate in general.
Gianforte also announced Wednesday that the use of all social media applications which “provide information and data to foreign adversaries” would be banned on any government issued device. Those apps include other apps owned by TikTok’s parent company, Bytedance, as well as WeChat, headquartered in China, and Telegram, which was founded by a pair of Russian entrepreneurs and is now headquartered in Dubai.
Similar legislation with broad language that could be interpreted in many ways that could impact the access Americans have through social media is also making its way through congress. A bipartisan bill dubbed the RESTRICT (Restricting the Emergence of Security Threats that Risk Information and Communications Technology) Act, introduced in March, would give the Secretary of Commerce and the President the power to restrict access to social media and other technology from “foreign adversaries.”
According to an analysis by the Electronic Frontier Foundation, the language RESTRICT Act could give the government broad and troubling investigative powers, potentially punish VPN users, be applied to a broad swath of technology, and give more power to the executive branch while removing “many of the commonsense restrictions that exist under the Foreign Intelligence Services Act (FISA).”
The EFF says that if Congress is concerned about foreign adversaries or other nations collecting data, “it should focus on comprehensive consumer data privacy legislation that will have a real impact, and protect our data no matter what platform it’s on—TikTok, Facebook, Twitter, or anywhere else that profits from our private information”
“Foreign adversaries won't be able to get our data from social media companies if the social media companies aren't allowed to collect, retain, and sell it in the first place,” writes the organization.