On Monday, TikTok sued Montana in an effort to block the state from banning the popular video sharing app. The lawsuit was filed just days after Montana’s Republican governor, Greg Gianforte, signed the first-in-the-nation ban into law.

The ban was passed amid an ongoing debate over the potential national security and privacy threats posed by TikTok, which is owned by the Chinese technology company ByteDance. After signing the legislation, which is set to go into effect in January, Gianforte tweeted that its purpose is “to protect Montanans’ personal and private data from the Chinese Communist Party.” 

The federal government has long sought to reel in TikTok. Former President Trump attempted to ban the app via executive order — and was repeatedly blocked by federal courts. Earlier this year, as congressional efforts to regulate TikTok appeared to fizzle, the Biden administration demanded that ByteDance sell the app, and required all federal agencies to delete it on government-owned devices. 

Montana’s legislation, however, has raised new concerns about the legality — and practical enforceability — of a state-specific outright ban. It’s also drawn swift rebukes from free speech advocates, who argue that the ban infringes on the First Amendment rights of the company and its users. 

The language of the legislation is straightforward: “TikTok may not operate within the territorial jurisdiction of Montana.” But its enforcement regime is more complicated: While the law doesn’t penalize individual TikTok users, it threatens app store platforms — like Apple and Google — with fines of $10,000 per violation per day. Under the law, violations would be assessed “each time that a user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok.”

In its lawsuit, TikTok alleges that “Montana’s ban abridges freedom of speech in violation of the First Amendment” by “unconstitutionally shutting down the forum for speech for all speakers on the app and singling these speakers out for disfavored treatment.” 

Ramya Krishnan, a staff attorney at the Knight First Amendment Institute at Columbia Law School, said that “Americans unquestionably exercise their First Amendment rights when they use TikTok.” 

Beyond the First Amendment issue, the lawsuit also alleges that by singling out TikTok for punishment because of its data privacy practices, the ban would constitute an illegal “bill of attainder” — meaning, an act of legislation declaring a specific individual or group guilty of a crime without the benefit of a judicial trial. 

“While Montana has a legitimate interest in protecting residents’ privacy, the ban isn’t a necessary or even effective way of achieving that goal,” Krishan said. “TikTok isn’t the only social media company to collect a lot of information about its users. Banning it does nothing to prevent other companies from collecting this data—or to prevent data brokers from selling this information to foreign adversaries on the open market.”

TikTok further argues, among other things, that the ban’s stated purpose — combating the purported national security threat of the Chinese Communist Party — represents a state intrusion on an area of “exclusive federal concern.” As the company notes in its complaint, “Foreign affairs and national security are matters over which the U.S. Constitution vests exclusive authority in the federal government, not the States.”

Some technology law experts believe that the legislation is also vulnerable to legal challenges because its authors failed to provide specific evidence of the threat posed by the Chinese Communist Party. Anupam Chander, a professor of law and technology at Georgetown University Law Center, said that he was “stunned” by Gianforte’s claim that evidence of the Chinese Communist Party’s spying via TikTok is “well-documented.” 

“This legislature and governor seemed to have no more information about the national security threat posed by TikTok than you or I,” Chander said. “So they’re making this judgment based on the facts as reported in the media. Governor Gianforte literally said that the ban was a response to ‘well documented’ evidence of Chinese Communist Party surveilling Americans. And as far as I can tell, there has never been such documentation.”

There is also a question of enforcement. The legislation would require TikTok — and the app stores that carry it — to use geolocation data to determine which users are based in Montana. “It’s an unbelievable irony that that’s the result of this legislation,” Chander said, referring to the potential privacy violations enabled by a bill passed in the name of protecting privacy. “And then of course, you’re going to have the evaders who use VPNs to place themselves in New York or California or even Texas.”

So what happens now? “It’s almost certain that Montana’s ban will be struck down,” said Krishnan, of the Knight Institute. 

Chander, too, believes that the federal judiciary’s concerns with the Trump-era executive orders may also extend to Montana’s ban. “I suspect that the underlying free expression concerns, and the congressional reluctance to grant the president this plenary authority over the cross-border flows of information, will continue in the jurisprudence in the courts with this new ban.”

Despite the likely challenges in the courts, Montana’s governor appears focused on a different constituency: his political base. 

Tully Olson, a former staffer for Montana’s Democratic Senate caucus who now leads the non-profit organization Big Sky 55+, said that appearing tough on China has clear political appeal. “There’s been anti-Chinese Communist Party rhetoric, on both sides of the aisle, for a couple years now. But in February, right at the early stages of our legislative session, we had a big balloon that flew over the state, and suddenly that was the biggest story in America. I think that ratcheted up pre-existing tensions with China, and so the ban became a win-win [for the state’s Republican majority].”

Are you concerned that banning TikTok infringes on the right to free speech? What do you think is motivating Montana’s ban? Write to us with your thoughts and questions at letters@cafe.com.