Does Montana Have A Legal Right To Ban TikTok?
Our behavior is always being monitored and analyzed when using the internet. Social media companies and search engines compile our inquiries, likes, favorites, follows, geographic and demographic information, in order to continuously curate content that keeps users hooked on their platforms. This concept and practice itself has been the subject of scrutinous conversation. However, now the practice of collecting user data in order to funnel it through an addictively influential algorithm is not in the hands of just American companies and government - but the Chinese government through the “TikTok” app. There is no directly comparable precedent for the media influence and national security risk that TikTok poses. Americans have always had access to content from foreign owned media outlets such as RT or Pravda, yet those outlets do not come close to the same level of influence TikTok has over Americans.
There are a few major ways TikTok has become so influential over audiences. For one, TikTok is a source of monetary livelihood and traffic for many small business owners, start-ups, and sole proprietors. The ease and accessibility of the app’s interface for content creators, and subsequent mass proliferation of user-generated content, has been a major vehicle in making the medium so attractive for businesses and proprietors. The content on the app is highly addictive as well. Videos are incredibly brief, contain encapsulating hooks, and oftentimes contain vivid and rapid imagery. The most jarring part about the proliferation of this medium is that the largest share of users are adolescents ages 10-19, at 25% of total user base. These are the most impressionable and emotionally volatile years of a person’s life. Habits, personal beliefs, behaviors, and attention spans are all being impacted by TikTok - and not for the better. However, that is for a separate discussion - yet these facts should serve as an important piece in understanding TikTok’s role in a legal and regulatory context.
Montana was the first, and maybe only, state to ban TikTok. The actual enforcement of the ban does not occur until January 1, 2024 - which then will not likely go into effect due to TikTok filing a preliminary injunction to halt the ban until the federal case (Alario et al. v. Knudsen) is resolved. The move to ban TikTok in Montana proved to be rather controversial, sparking the ACLU to file an amicus brief in favor of the plaintiffs. Much of the suit in the plaintiff's perspective is making an argument that banning TikTok is a violation of the first amendment because it does not meet the threshold for enacting prior restraint. Historically, it has been nearly impossible to constitutionally enforce prior restraint. Starting with Near v. Minnesota in 1931, the Supreme Court basically ruled that a newspaper could not be stopped from publishing scandalous information about some crooked local politicians by a state-level “gag law”. The ruling did carve out some exceptions for prior restraint usage, such as when speech is obscene, incites violence, or reveals government secrets.
On the surface level of prior restraint tests, it appears that the TikTok ban (SB419) fails to meet the threshold for enaction. Despite TikTok’s compromised position toward public health and safety, it does not present an imminent danger to society. The problem with proving the harmfulness of TikTok from a health and safety perspective is that its negative effects are gradually degenerative, and do not possess the same tangible aspects of harm like being physically tormented or imminently psychologically traumatized. There will certainly be adolescents who will grow up to be more unfocused or self-conscious, but that isn’t just cause to ban something outright. By that logic, sugary sodas or video games could just as easily be banned. I am divulging into the health and safety aspect of this case so much because the motion to block the preliminary junction, filed by Knudsen’s Office, cited protecting public health as a crucial reason for banning TikTok.
In response to first amendment violation claims, the defense counteracts with the opinion that banning TikTok is not a violation of the first amendment because there are other like-social media outlets in which users can replicate and proliferate like-content. However, singling out a single company for a ban, especially when the first amendment is in question, has historically worked out in favor of upholding first amendment protections. This essentially means that first amendment protections can prevent a single company’s expression from being banned. However, the defense cites Arcara v. Cloud Books as a counterpoint to the argument that the first amendment shields TikTok from a ban, despite other unsavory aspects of their practices. In Arcara v. Cloud Books, an adult bookstore, became the site of frequent prostitution, but the court concluded that the bookstore’s first amendment right to sell books did not shield it from other illicit acts occurring within the operations of the business. I find this assessment by the defense flawed when comparing Cloud Books to TikTok. For one, TikTok is not overtly engaging in mass and proliferated criminal activity like Cloud Books was.
Although TikTok has been fined in the past for violations of COPPA, it’s difficult, or even impossible, to conclusively pinpoint a prolific illegal practice TikTok is engaging in that would warrant a ban predicated on protecting public safety. Much of the grievances brought up by the defense are predicated on a notion of consumer protection. Yet, consumer protections are meant to protect consumers from illegal and unfair trade practices. Although scraping user data is unsavory, it’s not illegal - even if the Chinese Government has access to this data. It’s not illegal because user data is largely publically accessible, and analyzing user data on your own social media platform is not illegal. I get that lawmakers want to protect consumers, but TikTok’s data extraction practices are no different from what American social media companies engage in. The problem lawmakers have is that now this highly advanced ability to harvest data and analyze to feed an addictive and influential algorithm doesn’t lie in the hands of clearly definable and accessible actors like leadership and staff at Google, Meta, or Amazon - but TikTok leadership and the Chinese Government agencies and officials they work with.
That point is where this case gets weaker because there are currently so few relevant legal protections and regulations that apply to such a new and unprecedented problem - which, hopefully, gets resolved through new laws, regulations, and legal precedent. It’s not a bad thing that Montana has passed legislation to ban TikTok, and is facing subsequent legal action in retaliation because it helps set more defined legal boundaries in relation to the first amendment, user data privacy, and national security interests in a contemporary context. It is troubling that a foreign adversary of ours has such a clear and direct influence over the minds and hearts of Americans, especially American youth. However, we have to set out to resolve this issue of China having access to American user data diplomatically before we press the red button. If we start banning privately-owned social media services for the reason of promoting and maintaining public safety, we will open a slippery slope toward banning future platforms in a way that is adversarial to the first amendment. If ever came a moment in which we could pinpoint clear and tangible malice directed by the Chinese Government through TikTok against the American people, then the case for an outright ban will get stronger. But for now, TikTok is just a pioneer in a new media medium. There will be, and already are, competitors that will eat market share away from the platform. They do pose a national security threat, but not yet in such a way that will eminently harm Americans to invoke prior restraint for a ban.
The most likely remedy to this TikTok problem we currently have is to impose a Committee on Foreign Investment (CFIUS) oversight onto ByteDance, TikTok’s parent company. CFIUS can impose regulations onto ByteDance, most notably including an oversight board to review TikTok’s algorithm queuing practices to track data flows. This, accompanied with “Project Texas”, an initiative by TikTok to store and govern American user data within the United States, are smarter and more diplomatic steps toward eschewing TikTok’s unique position within US national security interests. Ultimately, there are enough constitutional protections to deny an outright TikTok ban. Within the purview of the first amendment, TikTok cannot be banned anymore than RT or Pravda can be banned in the United States. The most diplomatic and least calamitous way, for both US national security interests and our constitutional right to free speech, is to continue stringent oversight over TikTok’s data harvesting and storage practices; and consider further and harsher legal action against TikTok if severe and imminent harm can be proven to have been perpetrated by TikTok against Americans.
