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Recently, I drove from Washington, DC, to New York and passed through Maryland, Delaware, and New Jersey on the way while scrolling through Instagram, TikTok, and Twitter. Crossing all those state lines got me thinking about Montana and its recent ban on TikTok, the massive social media app owned by Chinese tech giant ByteDance.
Are we really proceeding down a path where I might have to delete and re-download certain apps as I cross state lines? What is the future of TikTok bans, and could they ever actually be enforced?
US policymakers have been scrutinizing the app intensely in recent months over concerns about Chinese espionage, but Montana’s ban is the most dramatic move so far. Legislators structured the law to target marketplaces like Google Play and Apple’s App Store. Starting on January 1, 2024, those companies could face a fine of $10,000 per day if they make TikTok available to users in Montana.
A lot of pundits, politicians, and technologists have written off the ban as ridiculous, unconstitutional, and xenophobic. And it’s already seeing legal challenges. On Monday, TikTok filed a lawsuit against Montana following a suit from a group of users, citing Constitutional grounds.
Eric Goldman, a law professor at Santa Clara University and co-director of the law school’s High Tech Law Institute, told me that he doubts the bans are anything more than a political play, intended to deliver a message: “It’s just propaganda, not actually an effort to keep Montanans safe.”
There is still really no evidence that TikTok is handing over user data to the Chinese government on the scale that US politicians are claiming. But proposed TikTok bans are cropping up all over the US with mostly bipartisan support, and President Biden has threatened a national ban as well. It’s also not the first time US lawmakers have pushed a TikTok backlash; in 2020, the Trump administration tried to ban the app but was blocked after a judge determined there wasn’t enough evidence of Chinese spying.
As for its enforceability, what would happen if Montana’s ban did go into effect? Would I have to delete the app if I went to visit Glacier National Park? That’s not at all likely, and the current law looks to cut off access to the app at the point of initial download—not for people who already have it on their phones.
Some Montana TikTokers have already started lamenting the potential loss of their platforms and communities on the app, but they might not need to worry too much, as the law also doesn’t directly threaten to punish TikTok users.
Removing TikTok from app stores would significantly reduce its ability to gain new users, and the stores would be tasked with policing access according to device location. TechNet, a lobby group that represents Apple and Google, says that enforcement of such a policy is currently impossible as the stores don’t have the ability to “geofence” by state.
Goldman says Montana lawmakers likely never intended to craft a truly enforceable bill. “They pass bills that aren’t likely to ever work, but they’re not intended for that purpose. They’re intended to show that the legislatures care about certain constituents,” he said. Governor Greg Gianforte hasn’t replied to my questions.
Montana’s ban seems unlikely to survive all the legal challenges, but we might see similar bills pass in other states, which is even more interesting within the broader context of how internet speech regulation is playing out in the US. State legislatures influence each other and serve as laboratories for the national political strategies of both parties. And right now, everyone is experimenting with how to increase limitations on social media and the harm it can do, especially in the absence of national internet speech and privacy laws.
I’ve recently written about the wave of child online safety bills, efforts to censor abortion information by targeting internet service providers that host relevant websites, and the fragmented patchwork of state-based laws that we’re creating in the US. Many of these sorts of bills, like the TikTok ban, are highly politicized and unlikely to survive judicial review, but they drain effort, money, and attention from productive national conversations about how to make the internet a safe, open space.
The ACLU of Montana and other free-speech organizations have come out in opposition of the ban. Keegan Medrano, policy director at the ACLU of Montana, said in a statement, “We will never trade our First Amendment rights for cheap political points.”
Ultimately, that seems like the real danger posed by experimenting with these bans—that politics is encroaching on policymaking. It’s a tale as old as time. Unfortunately for us, this era of junk internet bills seems here to stay.
What else I’m reading
- Speaking of the China-US tech war, on Wednesday Microsoft warned that Chinese malware affected telecommunication systems in Guam and other places in the US. US intelligence agencies found out about the hack back in February; it appeared as mysterious code that enables remote access to a server in “critical” cyber infrastructure. The attack, attributed to the Chinese hacking group Volt Typhoon, appears to be ongoing. Guam is an essential location for any US military response in Taiwan.
- Ron DeSantis, Governor of Florida, announced his candidacy for the Republican nomination for president in 2024 on Twitter Spaces yesterday in an interview with Elon Musk. The site repeatedly crashed, but the event was monumental for reasons beyond the promotion of the site’s premier audio feature. It marked a clear call to a more right-wing politics that Musk seems intent on bringing to the platform.
What I learned this week
We’re starting to learn a bit about the mess of online mis- and disinformation around covid-19 vaccines over the past few years. A new study from researchers at the University of Texas at Austin found that some efforts to combat bad information were effective. Exposure to good information did more to change people’s minds than direct rebuttals, which could actually backfire and make people less likely to take the vaccine. The expertise and trustworthiness of the information source were also important factors, and the researchers found that doctors were effective messengers.
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