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TikTok ban in Montana, U.S. may be timely, but not necessarily constitutional


TikTok ban in Montana, U.S. may be timely, but not necessarily constitutional

Mar 19, 2023 | 12:00 pm ET
By Darrell Ehrlick
TikTok ban in Montana, U.S. may be timely, but not necessarily constitutional
Photo illustration. (Photo by Kevin Frayer/Getty Images)

It didn’t start with Elvis, but he and his hips didn’t help.

The federal government has been pushing back against the First Amendment almost since the time it was established, including when it tried to jail early political dissenters and publishers by passing “seditious libel” acts. Then, the federal government jailed journalists who disagreed with the Civil War. Later, puritanical politicians fretted about pornography being sent through the mail during the Victorian era.

So it’s not surprising to experts who study media, law and the First Amendment that elected leaders on both the state and federal level want to ban TikTok, the popular social media app that is based in Singapore, but whose parent company, ByteDance, has ties to the Chinese communist government. Security officials have warned that China may be harvesting personal information, including tracking movements of individuals, in order to weaponize and use it against citizens.

While none of those predictions have come to fruition, the apprehension is so widespread that state governments have rushed to ban the app on electronic devices controlled or paid for by the government, out of concern that just the app may be designed to spy on other electronic activity and transmit to a third-party. On Monday, Belgium announced that it was instituting a temporary ban on the app for government-owned devices, similar to those implemented in the U.S.

As Congress considers a wider ban of the app, Montana has already booted TikTok from all state devices, but now state lawmakers want to take it one step further and outlaw the app from any device anywhere in the state. House Bill 419 would punish any “app store” or provider that allows access to TikTok to be fined as much as $10,000 per incident anytime a resident accesses the app. The language of the bill, sponsored by Sen. Shelly Vance, R-Belgrade, would hold the technology companies responsible for what their customers access.

Yet public officials and experts in the First Amendment argue whether such a ban on items would even be possible, let alone legal.

Ban presents technological nightmare

Montana House Bill 419 doesn’t ban residents from using TikTok, it bans application distributors and internet providers from providing it, shifting the onus from the individual to companies.

However, the legislation raises several tricky, thorny technical issues, for example, how would a resident who has an out-of-state telephone number, registered with a service in a different state, be treated inside Montana? And, what happens when a resident using a non-Apple device can download an app not directly through an app store, a process known as “sideloading?” What about virtual private networks, or VPNs?

More than that, other challenges persist. For example, an article published on Gizmodo, an online site that focuses on the tech industry, notes that it found 28,000 apps that send TikTok data, concluding that “banning the app won’t help.” The article goes on to point out that even with an all-out ban on the app itself, routine tracking software embedded in many different applications that interface with TikTok still regularly sends information back to TikTok.

“The problem is now becoming even if you don’t have it, you have its software,” said Kevin Goldberg, an expert on the First Amendment with the nonpartisan Freedom Forum. “Banning it obviously isn’t going to solve the problem.”

App developers use “Software Development Kits” that help other apps and programmers write programs that interface with large, powerful applications like TikTok. Those kits usually track a variety of user-based behaviors, including what content they like, where they’re going, and TikTok’s are used in a variety of popular applications, including Trivia Crack, Mobile Legends: Bang Bang, and photo editors like Canva, according to Gizmodo.

Through a spokesperson, TikTok also said one of the downsides to banning TikTok in America is that the popular app has more than 1 billion users across the globe, and many interact with America, its culture and trends through application.

First Amendment concerns

Most of the objections to the popular app are based on reports of personal data being sent back to China. Security experts warn the information that is collected could make Americans more vulnerable to any number of concerns from hacking to misinformation or disinformation, especially during elections.

Other concerns about government censorship have been raised about the application that channels short videos to users. However, banning an entire app raises serious First Amendment issues because it’s tantamount to government censorship, civil liberties advocates warn.

The First Amendment protects freedom of speech, but also the freedom to communicate broadly without government interference. When any government – federal or otherwise – wants to curb that speech, it’s usually subject to heavy or “strict scrutiny” and must prove that if a restriction “chills” or stops speech, that the government must do it in the least restrictive way as possible to achieve its means. Experts say that an outright ban of the application not only raises serious First Amendment issues, but would likely be challenged nearly instantly in court because banning the app would be so sweeping.

While Montana is not the only state contemplating a ban, it raises plenty of logistical challenges – including how to enact it if other states don’t. However, even a nationwide ban that is being proposed is unlikely to pass legal muster, First Amendment experts say.

Lee Banville, the director of the University of Montana’s School of Journalism, said the state’s attempt at banning the application is intriguing because it’s wholesale and does not seemed aimed at a particular piece of content, rather the technology. He said that most of the First Amendment challenges, as it relates to the government, fall into a different category where the government tries to restrict or stop speech or opinions it disagrees with. In this case, the issue of the government selecting a viewpoint is not as obvious.

“From a policy standpoint the question is: How well do you have to document something is a threat before you act,” Banville said.

However, on the other side, Banville questioned, is it something so grave as to require Internet Service Providers from blocking it completely?

“It’s a sweeping policy ban (by the federal government), but it has not been backed up by a lot of evidence. We have anecdotal evidence and people who are knowledgeable, but we really haven’t seen the proof of a security risk that would justify a complete shutdown,” Banville said.

He said it also raises questions about how the government treats one company and not another. For example, much of the content that can be found on TikTok may already be on Instagram, which is owned by Meta, the parent company of Facebook. Banville pointed out that just because of that relationship, such an adverse and public stance against TikTok has the unintended benefit of helping other social media companies, including those owned by American companies.

However, Goldberg said the technology concern may not be able to overcome trampling on the First Amendment.

For example, he looked at Montana’s House Bill 419 and even though it purports to be concerned about the Chinese government spying on Montanans, he said the bill quickly moves into content that is often covered by the First Amendment. For example, the bill references the dangers of cooking chicken in NyQuil, licking doorknobs and “attempting to climb stacks of milkcrates” – things that go beyond the technological concerns of the app itself. Those are taking a decided viewpoint on certain types of speech, he said.

“This isn’t just chilling speech. This is a prior restraint that freezes the speech completely,” Goldberg said.

While he said the government has previously tried to stop a certain story or types of content from being made public, he’s unfamiliar with a similar analogy to banning the entire app or medium.

Even at times when the government presents a compelling reason to restrict content, as in the case of pornography, or information about liquor or tobacco purchasing, the government may have to do that with precision. For example, in some adult sites, viewers may have to enter a birthdate or check a verification to help ensure they’re a certain age. Those are examples of the government achieving its goals in a way that is minimally restrictive.

Goldberg said that while the government has warned of the dangers of TiTok, he said because the specifics have been confidential because of security concerns, it’s hard to even know if the problem justifies the reaction.

However, Goldberg acknowledges the security concerns, shared by both major political parties, are likely legitimate, so the question becomes: How to craft a policy that addresses those concerns without ignoring the First Amendment?

And, it’s not the first big social media company to come under fire: Cambridge Analytica scraped personal information from Facebook to create targeted political messages. Goldberg said that something similar via TikTok could cause many of the same problems related to disinformation and elections.

“The difference here is that a foreign government could use it against us in a distinct way to be weaponized or manipulate or disrupt elections so that makes it a little different,” he said.

However, Congress could have more of a role in the issue rather than just banning the app, Goldberg said. Instead, it could force TikTok and other social media companies to become more transparent about how and what they do with individual data. Instead of putting pages and pages of dense, legal, and technical information in user agreements, they could be required to state in more plain terms how the data will be used.

“The problem is that we don’t have an idea of the true risk of how data is being manipulated against them,” said Matt Fossen, of the Freedom Forum, whose background includes information technology policy.

He credits people like Sen. Bill Cassidy, a Republican from Louisiana, with trying to make terms and conditions more relevant – something that has previously been a harder lift until the TikTok threat emerged.

“This is just the latest in a series of ebbs and flows,” Goldberg said. “Legislators have good intentions, but they tend to overreact, and then the courts generally follow and get us to the right place.”