What to know about the Montana TikTok ban

(HELENA, Mont.) — A TikTok ban enacted by Montana — the first state to impose such a law — marked a major step in the growing U.S. backlash against the Chinese-owned social media platform over concerns about data privacy.

Montana Gov. Greg Gianforte said he signed the measure on Wednesday to “protect Montanans’ personal and private data from the Chinese Communist Party.”

TikTok serves hundreds of thousands of users in Montana and more than 5,000 businesses, TikTok spokesperson Brooke Oberwetter told ABC News.

In a statement, Oberwetter denounced the ban and reminded users in Montana that they remain allowed to use the app.

“Governor Gianforte has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok,” she said. “We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana.”

Here’s what to know about the TikTok ban in Montana, according to experts:

How can Montana ban TikTok?

The Montana ban, which takes effect in January 2024, does not prevent current users from accessing the app or penalize them for doing so.

Instead, the ban targets the availability of the app by threatening entities such as TikTok, Google and Apple with a $10,000 fine for each day that the platform remains accessible in app stores for users in Montana.

“This is not doing anything with respect to existing users,” Sarah Kreps, director of Cornell University’s Tech Policy Institute, told ABC News, noting however that the law will hinder current users eventually as they fail to download new updates to the app.

“Users need updates to have TikTok run smoothly and efficiently,” Kreps said. “Over time, it will have a siphoning off effect on these existing users.”

The law will be nullified if TikTok is no longer headquartered in “any country designated as a foreign adversary” by the U.S. government.

How will Montana enforce the TikTok ban?

State officials will be able to enforce the law by observing whether app stores display TikTok for users in Montana, and the relevant companies should be largely capable of identifying where users reside and denying access accordingly, experts said.

However, users in Montana will likely be able to elude the restrictions by using technology that falsifies their location and allows them to download the app, they added.

“There’s this myth that because there are technical workarounds with the internet, the law doesn’t matter,” Timothy Edgar, a computer science professor at Brown University and a former national security official, told ABC News. “That’s not true.”

Still, users could likely circumvent the ban through the use of a Virtual Private Network, or VPN, which allows one to pose as a user logging on from a different location, thereby circumventing the state-specific ban, experts said.

The outcome of enforcement is ultimately difficult to predict, since a state has never carried out a comparable ban of a widely popular app, Kreps added.

“Montana is really pioneering here,” she said.

Can the TikTok ban in Montana withstand a legal challenge?

The TikTok ban in Montana will likely face a formidable challenge on First Amendment grounds that could ultimately knock down part or all of the measure, experts said.

Free speech advocacy groups such as the ACLU have sharply criticized the measure. “We will never trade our First Amendment rights for cheap political points,” Keegan Medrano, policy director at the ACLU of Montana, said in a statement on Wednesday.

When considering a limit on speech, courts typically weigh the extent of a national security or privacy concern against the restriction placed on expression, Edgar said.

“The court will say this clearly has an impact on the expression rights of TikTok users and creators, so what’s the government’s compelling justification?” Edgar said.

“That’s the big challenge,” he added.