It’s a ban that’s meant to “protect the data” of Montana residents from the Chinese Communist Party. Greg Gianforte, governor of this northwestern American state, promulgated a law on Wednesday May 17 prohibiting from January 1, 2024 the distribution of the TikTok application by mobile application stores (Apple and Google). The companies involved risk fines of $10,000 a day for each violation, but users will not be worried.
Montana is the first American state to ban the social network, and will serve as a test for a possible national ban, which elected officials in Washington are demanding more and more strongly. As anti-China sentiment rises in the West, the White House is indeed discussing with Congress several bills aimed at completely banning the social network from the country, even if Donald Trump had not succeeded in doing so in 2020.
The short video app is owned by Chinese group ByteDance and many US lawmakers believe it allows Beijing to spy on and manipulate users, which the company denies.
An appeal filed by five users
Five TikTok users, however, filed an appeal in federal court in Montana, a few hours after the banning of the social network in the state, in order to request the invalidation of this decision. “Montana can no more ban its people from viewing or posting on TikTok than it can ban le Wall Street Journal on the grounds of the identity of its owner or the opinions it conveys”, is it written in the appeal.
For the petitioners, the State violates the right to freedom of expression and tries to arrogate to itself the powers of the federal government, which has jurisdiction over questions of national security. According to the litigation document, the plaintiffs have a substantial number of followers on TikTok and are making money from the app.
The text “is so unconstitutional that it is laughable, and so difficult to implement that it is comical”, summarized Thursday in a statement Evan Greer, director of the NGO Fight for the Future.
“Any teenage Japanese manga fan or UK TV fan can tell you how to get around such a stupid ban using a virtual private network (VPN),” Evan Greer added. An argument that elected Democrats from Montana had already made during the debates. Zooey Zephyr, in particular, pointed out that residents can still download the application simply by moving closer to the border with neighboring states or by using a VPN that allows access to the Internet from another location.
“The Great Computer Wall of Montana”
According to Michael Daniel, director of Cyber Threat Alliance, a cybersecurity NGO, the law fails to answer two key questions. It does not specify what will happen to users who already have TikTok on their phone, except that they will no longer be able, in theory, to update the application. And it does not explain how to identify with certainty the inhabitants of this sparsely populated state.
“There’s no way Montana can track TikTok downloads without giving the government all kinds of new powers,” he told AFP. “TikTok could track the geolocation of users, but that would be reprehensible in terms of data privacy for everyone on the platform,” said Jason Kelley, of the Electronic Frontier Foundation, an NGO that protects freedoms on the Internet. .
Associations and experts are surprised that American elected officials who mainly accuse TikTok of serving as a Trojan horse for the Chinese Communist Party seem ready to resort to authoritarian methods. The only way for the Montana legislature to enforce its law would be to “follow China’s example and monitor all the phones of everyone in the state. They would have to build the Great Computer Wall of Montana”, comments Tara Wheeler, boss of Red Queen Dynamics, a cybersecurity company.
A high risk of unconstitutionality
Under the First Amendment to the US Constitution, “TikTok has the right to distribute information and users have the right to receive information and also to distribute it”, notes for his part Lyrissa Lidsky, professor of law at the University of Florida.
The text therefore has “a strong chance of being considered unconstitutional”, she explains. And if ever a case goes up to the Supreme Court of the United States, dominated by Republican judges, “even conservatives do not like the government telling citizens what they can read or not”, underlines t- -She. Ahead of the vote, a TikTok spokeswoman said the text’s constitutionality would be “decided in court” and the company would “keep fighting”.
The ban on TikTok in Montana will however be reversed if the application of short videos is meanwhile acquired by a company whose country of origin is not considered an adversary state by the United States, specifies however the legislation. The application is already banned by many organizations, from federal agencies in the United States to the European Commission and the BBC.
