News May 23, 2023
Lawsuits Against Montana TikTok Ban Could Go All the Way to the Supreme Court
Lawsuits are already in motion after Montana Gov. Greg Gianforte, a Republican, signed a bill last week banning TikTok in the state. At the time, he announced on Twitter that the ban was “to protect Montanans’ personal and private data from the Chinese Communist Party.”
Montana became the first state to ban the video-sharing app, which is owned by Chinese company ByteDance. The new law calls for violators, including app stores, to be fined $10,000 per day.
“We have already seen one lawsuit filed from a group of Montana TikTok users, and I expect to see a flurry of similar suits in the coming weeks,” said Daniel R. Gutenplan, a partner at EPG Lawyers.
“The TikTok restriction almost certainly restricts free speech by preventing TikTok users based in Montana — more than 200,000 individuals and thousands of small businesses — to use the app and post content without facing substantial fines and penalties,” Gutenplan said. “Opponents of the law — including TikTok users, the ACLU, and other civil liberties organizations, and perhaps TikTok itself — will certainly challenge the law in court, likely on multiple fronts.”
But Gianforte and the Montana government contend the restriction on speech serves a national security interest, by preventing the Chinese government from accessing Montanans’ user data.
“For the Montana government to successfully defeat those challenges and keep the law on the books, the government will have to show that the threats to privacy and security and real and significant, and that the government could not address those threats by less intrusive means,” Gutenplan said.
“It is certainly possible that, through TikTok, the Chinese government could access users’ data and information. That said, to date, I am not aware of any evidence that the Chinese government has in fact accessed any private data of its U.S.-based users, so the ‘threat’ appears to be just that at this point,” Gutenplan said.
Those challenging the laws are likely to seek immediate injunctive relief, asking the courts to temporarily block the ban pending the outcome of the lawsuits.
“We should have an early indication from the court as to the viability of such challenges — if a court were to grant injunctive relief and remove the ban temporarily, for instance, it would strongly indicate that the court has serious doubt as to the constitutionality of the law," Gutenplan said. "Undoubtedly, these lawsuits will end up on appeal, and perhaps even in front of the Supreme Court, likely years down the road."
TMX contributed to this story.