Montana on Tuesday doubled down on its earlier attempts to ban the popular social media app TikTok.
Montana Attorney General Austin Knudsen filed a notice that the state is seeking to appeal a Federal judge’s November suspension of the state’s ban.
Montana Governor Greg Gianforte banned the app from operating in the state in May, in a self-described effort to “protect Montanans’ personal, private and sensitive data and information from intelligence gathering by the Chinese Communist Party.”
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TikTok is owned by ByteDance, a Chinese corporation.
The ban was set to take effect Jan. 1.
Not long after Gianforte signed the bill banning TikTok, the social media company filed a lawsuit against the state, saying that such a ban would violate the First Amendment rights of the company and its users.
TikTok claimed in the suit that it “has not shared, and would not share, U.S. user data with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users.”
Five Montana residents — and TikTok influencers — sued the state on May 19, claiming that the ban violated their First Amendment rights.
“Montana can no more ban its residents from viewing or posting to TikTok than it could ban the Wall Street Journal because of who owns it or the ideas it publishes,” the suit said.
U.S. District Judge Donald Molloy on Nov. 30, 2023 issued a preliminary injunction that blocked the state’s ban, saying that such a ban violated the First Amendment rights of its users. The ban, he said, “violates the Constitution in more ways than one” and “oversteps state power.”
The attorney general’s office did not immediately respond to a request for comment.
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Knudsen’s real concern
Molloy wrote in his judgment at the time that a significant problem with the ban was that it singled out TikTok, when other apps and services do similar things when it comes to data privacy and collection.
“The TikTok Ban singles out the TikTok application for this punishment, notwithstanding that the data allegedly collected by the app is no different in kind than data collected from any number of other sources and that is widely available in the data broker market,” he wrote.
Knudsen is more focused on the fact that TikTok is Chinese-owned, rather than the fact that just about ever app collects, shares and sells user data. He said the proposed law includes language that would lift the ban if TikTok became an American company.
“I’m not interested in recognizing that the Chinese Communist Party has free speech rights under the U.S. Constitution,” he told Fox News in June. “This really is about TikTok being used as a spying tool for the Chinese Communist Party.”
Critics of the ban, however, have pointed out an issue with this intention: there are plenty of other social media apps that collect similar information, and the Chinese government could purchase that information from the growing — and unregulated — data broker industry, which buys, aggregates and sells such information.
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TikTok and the competition
TikTok does collect a lot of information on its users, including the contents of direct messages, usage information — which includes inferred attributes such as age and gender — and cookies, among many other things. This information, according to the app’s privacy policy, is used to improve the app and is also shared with third-party partners, including advertisers.
Both Meta and X collect roughly the same information, for roughly the same purposes, though X additionally collects biometric data of consenting users, something the other apps don’t include in their privacy policies.
Read Meta’s privacy policy here. Read X’s privacy policy here.
“TikTok uses the same exact data-hungry business model used by platforms like Facebook and YouTube, and as long as some companies are allowed to collect massive amounts of data, we’re all in danger of the details of our digital lives used to hurt us,” Fight for the Future, a nonprofit digital rights group, said as part of its recent #DontBanTikTok campaign.
“To stop governments like China’s from accessing and abusing the data that companies have on us, we need to prevent apps and companies from collecting so much of our personal data in the first place.”
The organization urged lawmakers to strengthen data privacy and transparency laws, instead of “hyperventilating about TikTok.”
The organization has petitioned lawmakers to ‘”ACTUALLY protect my sensitive data from China and other governments. Stop feeding moral panic and pass a real data privacy law to stop Big Tech companies — including TikTok! — from harvesting and abusing our personal data for profit.”
India in 2020 became the first and only country to outright ban TikTok, citing concerns of data privacy. Other countries, including the U.S., Canada and Britain, have banned the app from official government devices. Many U.S. states have followed suit.
These bans have stemmed from a concern among U.S. lawmakers that Chinese companies are required to share data with the government. TikTok, however, has insisted it is independent, saying in 2020 that it stores data in the U.S. and Singapore and has not — nor does it plan to — given information to the Chinese government.
“If a company is operating in China and is collecting your data, it is a good bet that the Chinese government is accessing it,” U.S. Deputy Attorney General Lisa Monaco said in February. “I don’t use TikTok and I would not advise anybody to do so.”
TikTok said in March that 150 million Americans — just about half the country’s population — use the app.
Contact Ian with tips via email, [email protected], or Signal 732-804-1223.
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