Senators Support Potential Mont. TikTok Ban, Question Enforcement

Montana is right to try to ban TikTok across the state, but it’s unclear how such a prohibition can be enforced at the state-level, Republican senators told us in interviews last week. Consumer groups and the tech industry condemned the Montana measure as unconstitutional.

Montana’s legislature earlier this month passed a bill that would ban the social media platform from operating in the state and ban mobile app stores from allowing TikTok downloads (see 2304170049). It awaits a signature from Gov. Greg Gianforte (R).

“I understand the symbolic nature of it, and I think it’s important in terms of telling people that this is a danger, but if there’s going to be an answer to this, you have to ban them from operating” across the country, said Sen. Marco Rubio, R-Fla. Rubio has joined various bipartisan efforts to prohibit the app at the federal level (see 2303130042). It will be hard for a state to regulate a technology that has no borders, he said.

“I have confidence and support what our governor and legislators are doing in Montana,” said Sen. Steve Daines, R-Mont. “I view TikTok as a bunch of little mini Chinese spy balloons.” Nobody who understands how the app is “vacuuming” user data and the link to the Chinese Communist Party should be using it, said Sen. John Cornyn, R-Texas. He noted there are various approaches to banning TikTok but suggested the app could be registered as a foreign agent under the Foreign Agents Registration Act. Russia Today and Sputnik both carry the designation, he said, which allows consumers “greater visibility” so they can make better decisions about what apps to interact with.

TikTok said in a statement Friday: "The bill's champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bill's constitutionality will be decided by the courts. We will continue to fight for TikTok users and creators in Montana whose livelihoods and First Amendment rights are threatened by this egregious government overreach."

There are 50 states that “can do whatever they want to do,” said Sen. Chuck Grassley, R-Iowa. “I can only talk about the federal government.” Grassley is a co-sponsor of a bill from Senate Intelligence Committee Chairman Mark Warner, D-Va., and Sen. John Thune, R-S.D. The Restricting the Emergence of Security Threats that Risk Information and Communications Technology (Restrict) Act (S-686), which has 25 sponsors, would allow the Commerce Department to effectively ban apps like TikTok over national security concerns (see 2303170043). Grassley said he’s prepared to withdraw his name from the bill unless certain provisions are fixed. He raised concerns about bill language that blocks Freedom of Information Act access and certain levels of judicial review. “We should not be denying freedom of access, and we should not be denying judicial review,” he said.

Sen. Thom Tillis, R-N.C., suggested last week with Sen. Marsha Blackburn, R-Tenn., that Congress should ban the app on members’ personal devices (see 2304180060). He told us he supports Montana’s decision and hopes Congress will vote on a ban for member devices. The app is already banned on government-issued devices (see 2212270051). Sen. Ben Ray Lujan, D-N.M., told us he supports states moving to protect the data privacy of their residents.

Sen. Jerry Moran, R-Kan., said he will leave it to states to decide how they want to protect residents but called the app a “genuine threat to the well-being” of U.S. citizens. Moran said he has no objection to Congress banning the app on members’ personal devices: “I don’t think I’ve ever used” the app, and “when I see it, I try to never click on it.”

Gianforte “will carefully consider any bill the legislature sends to his desk,” a spokesperson said last week. SB-419 was enrolled Tuesday, allowing it to be sent to the governor. Once Gianforte has the bill, he will have 10 days to act. The Republican in December banned TikTok on state equipment and for state business through an executive order. In January, the Montana University System banned TikTok on educational equipment after Gianforte urged it to do so.

The American Civil Liberties Union is “evaluating our options” for next steps, a spokesperson told us Thursday. “ACLU has never stood idly by when the government runs roughshod over the First Amendment.” Before the legislature’s final vote, ACLU led a coalition letter in opposition to the bill. “SB 419 is censorship,” wrote the group that also included TechFreedom, Center for Democracy and Technology and Electronic Frontier Foundation. “It would unjustly cut Montanans off from a platform where they speak out and exchange ideas everyday, and it would set an alarming precedent for excessive government control over how Montanans use the internet.”

While Montana “has every right to determine" what apps run on state devices, "bills of attainder are not how democracies should decide which apps belong on your device," Computer & Communications Industry Association President Matt Schruers said. "In the absence of judicial proceedings with appropriate due process, it must be free markets, not government fiats, that dictate what apps are available for your phone.”

NetChoice urged Gianforte to veto SB-419 in a letter last Tuesday. “The bill not only violates the First Amendment” but “sets a dangerous precedent of lawmakers banning access to constitutionally protected speech without substantiated evidence of national security risks,” wrote General Counsel Carl Szabo. At least remove the mandate on app stores, he said. “Imposing liability on app stores would be a backdoor attempt at blocking access to constitutionally protected speech -- states like California could prohibit app stores from offering Parler or TruthSocial on the grounds that, because the underlying apps are dangerous, the app stores must act as roving government censors.”