NetChoice: Mont. TikTok Ban Would Impose 'Crippling Restrictions' on Internet Firms

Montana’s attempt to ban TikTok “is part of a long line of recent efforts by state governments to impose crippling restrictions on businesses that operate over the internet,” said NetChoice’s amicus brief Monday (docket 24-34) in the 9th U.S. Circuit Court of Appeals in support of the plaintiff-appellees -- five individual TikTok users challenging the ban, plus TikTok itself.

The Computer & Communications Industry Association, in a separate amicus brief Monday, also in support of the plaintiff-appellees, argues that U.S. District Court for Montana was correct in entering the preliminary injunction that prevents Montana Attorney General Austin Knudsen (R) from enforcing the TikTok ban, SB-419. Both briefs shied away from speculating about the impact of a federal TikTok ban on SB-419.

Because the internet is a global network that enables communication and commerce across state and national borders, courts “have long held that the federal government is better suited than the states to regulate this medium,” said NetChoice’s brief. State-by-state regulation “threatens to fragment the internet by imposing a patchwork of regulation over an inherently borderless technology, harming commerce and the free exchange of information alike,” it said.

It’s “no surprise” that courts “have largely enjoined the slew of recent efforts by states to regulate access to online services like TikTok,” said NetChoice’s brief. While the federal government is better suited to regulate the internet in most cases, the argument for national rather than state legislation “is overwhelming in this particular case,” it said. Montana doesn’t purport to ban TikTok “because of any quintessential local concern,” it said. It seeks to ban TikTok on the grounds that China is an adversary, it said.

The Constitution, though, doesn’t allow for 50 different foreign policies “but commits matters of foreign affairs and national security to the political branches of the federal government,” said NetChoice’s brief. There’s no question that Montana’s effort to ban TikTok interferes with the federal government’s ability to speak with one voice on foreign affairs and national security, it said.

Congress just passed, and President Joe Biden just signed, a bill that regulates TikTok’s foreign ownership “in ways that differ materially from Montana’s effort,” said NetChoice’s brief. While the federal government’s attempt to restrict TikTok’s foreign ties “will undoubtedly face its own constitutional challenges,” there’s no question that if any government has the authority to address foreign policy concerns with TikTok, it’s the federal government, not Montana, it said. TikTok and parent ByteDance filed a petition for review Tuesday in the U.S. Appeals Court for the D.C. Circuit challenging the federal ban's constitutionality (see 2405070045).

CCIA’s amicus brief doesn’t “opine” on any aspect of the federal TikTok ban, including Congress' intent and justifications for it, or whether that ban “comports with” the Constitution. CCIA also won’t speculate on what effect, if any, the federal TikTok ban will have on SB-419, said its brief.

Through SB-419, Montana has singled out one app and one means of expression, TikTok, for “banishment,” said CCIA’s brief. SB-419 prohibits TikTok from operating in the state, but also bars app stores from providing even the option to download the TikTok app within Montana’s territorial jurisdiction, it said. By punishing app stores for every person who could access TikTok, even if they never download or use it, SB-419 “imposes harsher penalties on app stores than on TikTok itself, which is liable only if people within Montana actually access or use it,” it said.