TikTok Banned in Montana

Interviewer: TikTok banned in Montana. The Montana governor just signed the country’s first law completely banning TikTok. It goes further than any other state’s moves to ban that social media app. The ban is expected to face some legal challenges potentially determining the fate of the app in the country.

Now in a statement, TikTok says the governor signed a bill that is, “Infringing on first amendment rights by unlawfully banning TikTok.” It goes on to say people in Montana can continue to use the app to express themselves. We want to bring in NBC Legal Analyst Danny Cevallos. Danny, what are the ins and the outs I should say of this ban? How can people still use this app in Montana if it’s banned?

Danny: Well, apparently it doesn’t criminalize actual users’ conduct, it criminalizes the sale. So, it targets the app sellers. That might be the App Store, or that might be TikTok itself. And that would make sense from Montana’s perspective, far better to go after a deep pocket like TikTok than go after individual users who are probably 18-19 years old, and who knows that they have any assets, or whether they’re worth prosecuting?

So, probably a smart strategy, if that’s what the ban does. But it leaves itself open to a number of different challenges. Most notably, the First Amendment and something called the Dormant Commerce Clause. Basically, an individual state can’t unnecessarily or unduly burden interstate commerce. But what exactly that means is a little hazy, and it’s moved a lot over the years, even in the last decade or so it’s been redefined.

And then perhaps most importantly is that traditionally, the commerce clause dealt with things like widgets, tangible items that are sold in a particular state. It’s a totally different thing with this modern use of the internet and apps like this, because where is it sold? Where is it used? Where’s the jurisdiction for this application? A lot of complicated issues. So, you can expect there will be challenges and soon.

Interviewer: Yeah, a reminder, the government is concerned that anything you do on TikTok might be fed to Chinese intelligence and the Chinese military. But if you live in Montana, under this application of the law, the governor can tell you what you can and can’t have on your phone, even if you put it on your phone in a different state. How in the world are they ever going to enforce this?

Danny: Well, that’s exactly it. I mean, you raised the issue, when we live in a global community. When we live in a global community, sorry, I’m using my phone. There I am. I’m back. When we live in a global community like this, the internet asked a difficult question. Where is some kind of conduct actually happening?

If you’re looking at your phone, but you downloaded it in Montana, but you’re looking at it, say in California? Is the conduct happening, or did it happen in Montana? So, those are all thorny issues that we all have to deal with in the modern internet age.

And this law that seeks to criminalize this kind of conduct or punish it, it’s going to be subjected to a number of different challenges. One of which is going to be jurisdictional, and where does the conduct actually happen?

Interviewer: And who would ever police this? It seems awfully challenging and difficult.

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