On May 17, 2023, Montana became the first state to fully ban TikTok with Senate Bill 419. Effective January 1, 2024, TikTok will be prohibited from operating within the state. The law cites concerns about users’ privacy, national security concerns due to TikTok’s parent company ByteDance’s affiliation with China, and potentially dangerous content impact on minors.
Individual users will not be subject to penalties. Rather, the law bans TikTok from being downloaded and imposes a $10,000 fine on both TikTok and mobile application stores (i.e. the Apple App Store or Android’s Google Play) each time a user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok. An additional fine of $10,000 will be imposed for each day the violation continues.
Senate Bill 419 provides that the ban will be void in the event TikTok is acquired by or sold to a company in a country that is not designated a “foreign adversary” under federal law.
The future of Montana’s ban is unclear in two ways: will the law survive the legal challenges it will likely face in the coming months and, if it does, how the law will be enforced?
Five TikTok creators have already filed a lawsuit in federal court alleging, among other things, that SB 419 violates the First Amendment right to freedom of speech, is overbroad, and violates the Fourteenth Amendment as it deprives the Plaintiffs of the right to pursue their chosen profession. The lawsuit also alleges that Montana’s TikTok ban intrudes on the federal government’s exclusive power to determine national policy.
Enforcement will prove difficult as readily available tools, such as VPNs, could be used to make it appear as though users are accessing or downloading TikTok from somewhere other than Montana.
Montana is unlikely to be the last state to restrict the use of TikTok in some way. Other states, such as New Jersey, have already taken steps to ban the use of the app on government employees’ devices. Whether or not your state bans or partially restricts TikTok, business owners need to be aware of TikTok’s potential risks and reevaluate their social media, electronics, and privacy policies accordingly.
PartnerKaren Painter Randall, formerly Certified by the Supreme Court of New Jersey as a Civil Trial Attorney and a partner at Connell Foley LLP, where she chairs the Cybersecurity, Data Privacy, and Incident Response Group. With extensive ...