Mont. TikTok Ban Would Expose App Stores to More Liability ‘Than TikTok Itself’: CCIA

The Computer & Communications Industry Association seeks leave to file an amicus brief by Aug. 4 in support of the plaintiffs’ motions for a preliminary injunction to block Montana Attorney General Austin Knudsen (R) from enforcing SB-419, the state’s TikTok ban, when it takes effect Jan. 1 (see 2307070002), said CCIA’s unopposed motion Wednesday (docket 9:23-cv-00061) in U.S. District Court for Montana in Missoula. The ACLU together with Electronic Frontier Foundation and NetChoice in tandem with the Chamber of Progress also filed unopposed motions for leave Wednesday to submit amicus briefs by Aug. 4 in support of the injunction.

SB-419 not only restricts TikTik itself, but it also imposes “massive penalties” on app stores that make TikTok available for download in Montana, said CCIA. Unless SB-419 is enjoined, app stores that offer TikTok for download will be liable for $10,000 in penalties for each person who has access to the store in Montana for every day that TikTok is available, it said.

Though TikTok isn’t a CCIA member, the association “has a significant interest in this case,” because several of its members are directly regulated by SB-419, “and that law infringes their First Amendment rights,” said CCIA. Montana’s restriction poses a particular threat to the internet “because app stores are a vital gateway -- and source of -- curated expression,” it said.

To “illustrate the severity” of SB-419's penalties, consider an app store that’s accessible by 100,000 people inside Montana, said CCIA. “If TikTok remains available for download by these users for just one day, the app store will be liable for $1 billion,” it said. “Ten days would cost $10 billion. And so on.” SB-419 may expose certain of CCIA’s members “to greater liability than TikTok itself,” it said. TikTok is liable only if people within Montana access the app, it said.

Unless SB-419 is enjoined, the penalties will leave companies, including CCIA members, “with no choice but to remove TikTok from their app stores if they have reason to believe the device in question is located in Montana,” said CCIA. Yet CCIA members don’t have “state-specific” app stores, and smartphone users “travel into and out of Montana every day,” it said. Requiring app stores to remove TikTok when the user sets foot in Montana “and re-enable it when the user is out, if possible at all, would present a practical and logistical nightmare,” it said.

Even if CCIA members could enable and disable TikTok based on a user’s location, the “regime” that SB-419 would usher in “would create novel privacy and security concerns” about the data collected from, and safeguarded for, their users, said CCIA. Member companies “take data privacy and security into account” when deciding which apps to host on their stores, it said. SB-419, if allowed to become effective, will “threaten to increase these risks,” it said.

The lawsuits challenging SB-419 are of “surpassing public importance,” said CCIA. The court will determine whether a state “may ban particular speech in a novel technological context,” it said. Its decision will have “sweeping implications for the regulation of the internet” throughout the U.S., it said. If CCIA is permitted to file its amicus brief by Aug. 4, the deadline will afford Montana “ample time to respond to CCIA’s arguments and will allow orderly briefing of the issues, it said.