Montana Struggles to Convince Judge to Back Its Historic TikTok Ban

A federal judge responsible for deciding the fate of Montana’s unprecedented TikTok ban poked holes in the state’s argument during a hearing Thursday and questioned why the government should prevent users and creators from willfully handing over data to the app. Donald Molloy, the judge overseeing the hearing, said Montana’s efforts to supposedly safeguard users’ data from Chinese Communist Party entities that are allegedly connected to the app amounts to a “paternalistic argument” preventing US citizens from expressing their individual rights. Molloy was left scratching his head.

“Your argument just confuses me,” Molloy told Montana Solicitor General Christian Corrigan. “You need to protect consumers from having their data stolen. But everybody on TikTok voluntarily gives their personal data. If they want to give that information to whatever the platform is, how is it you can protect them?”

Molloy concluded the hearing by saying he would offer a preliminary resolution soon. Lawyers commenting on the case, including Montana Attorney General Austin Knudsen, believe the case could eventually climb its way up to the Supreme Court.

Montana Gov. Greg Gianforte signed the legislation banning TikTok statewide into law on May 17 over concerns the app’s Chinese ownership poses national security risks. If allowed to take effect on January 1, 2024, the first-of-its-kind ban would prohibit app stores from offering downloads of the app and slap them with $10,000 fines per day if they are found in violation. Montana-based TikTok creators, and the company itself, launched lawsuits earlier this year vying to overturn the law which they claim violates the First Amendment. The battle over the Montana law, which has drawn the attention of numerous civil liberties organizations and 18 Republican attorneys general, could mark a critical inflection point in the way state governments regulate social media.

“There’s really no question that TikTok and its users should prevail here,” Knight First Amendment Institute Executive Director Jameel Jaffer said in a statement sent to Gizmodo following the hearing. “Montana simply hasn’t offered any persuasive reason why it can’t achieve its interests with means that impose less of a burden on First Amendment rights. If Montana wants to protect its citizens’ privacy, it should pass a privacy law. ”

Attorneys representing TikTok during the oral hearings Thursday pushed back against the state’s claim that TikTok users could simply jump ship to another app if the ban takes effect. Prominent creators in the state argue the app offers “unparalleled” reach compared to other social media alternatives and grants them access to separate, unique audiences. Montana creators speaking previously with Gizmodo said they feared the ban would potentially shut them out of communities and support groups they’ve spent years building. Judge Molloy, during the hearing, similarly questioned the feasibility of creators suddenly switching platforms.

“Isn’t there a difference between 200,000 followers on TikTok and 1,500 followers on another?” Molloy asked Corrigan. The Solicitor General responded by saying Instagram or YouTube may not be users’ preferred platforms, but they are alternatives nonetheless.

But creators who rely on the app as their primary source of income say Montana’s sudden elimination of that “preference” could profoundly alter their lives. Carly Goddard, a young mother and digital creator told Gizmodo uncertainty about TikTok and her financial future forced her to postpone her dream of having more children. She is currently considering fleeing the state altogether as a result of the law.

“There are young moms like me that just want to be able to stay home and be able to afford groceries and pay their bills,” Goddard said.

App ban could unfairly punish indigenous populations

Molloy questioned Montana’s attorney on how the state could properly and fairly enforce the law if it’s allowed to go into effect. Attorneys representing both sides of the debate agreed that the law would not apply to six Native American territories located within the state’s borders since they operate as sovereign governments. Still, TikTok fears the state’s aggressive penalties for running afoul of the law could force app markets like Apple or Google to simply err on the side of caution and blacklist downloads of the app for everyone within Utah’s border, even if they are located within native american territories.

“Even if an indigenous person in that territory is lawfully permitted to access TikTok,” attorney Alexander Berengaut said. “The challenges of determining whether they are on that territory or not might mean that they would unfairly be deprived of their lawful ability to access the app because of the broad brush terms of the law.”

Judge questions Montana’s ‘mountain of evidence’

Much of Montana’s argument for banning TikTok rests on allegations the app could send residents’ data to the Chinese government or create a “back door” for officials to spy on users. TikTok refuted that point during the hearing and in previous public statements, arguing the company does not share US user data with the Chinese government. Corrigan, in response, pointed to what he called a “mountain of publicly available evidence” by way of media reports to support the state espionage and propaganda fears. When the judge pushed back and asked if the state had any definitive proof showing how Montana user data was in danger, Corrigan responded by saying it didn’t really have to.

“The state does not need to establish a blue ribbon commission to establish if fire is hot and water is wet,” Corrigan said.

Montana’s TikTok ban is the brainchild of Attorney General Austin Knudsen, a fifth-generation rancher from a state with just over one million people. During an interview with Purdue University’s Krach Institute for Tech Diplomacy late last month, Knudsen said residents’ concern about a Chinese spy balloon hovering over the state earlier this year played an important role in his decision to target TikTok. Knudsen says he receives complaints from residents about other, American social media firms as well, but claims TikTok is uniquely concerning.

“TikTok was the one,” Knudsen said, “where the more layers of the onion we pulled back the stinkier it got.” In recent court filings defending his legislation, Knudsen compared TikTok to a “cancer-causing radio.”

In a statement sent to Gizmodo following the hearing, a spokesperson for Knudsen said TikTok and its allies were relying on an “illogical argument” to try and prove its case.

“TikTok is attempting to use the First Amendment to evade much-deserved scrutiny,” spokesperson Emilee Cantrell said in an email. “However, as the State made clear, the First Amendment does not permit companies to let foreign adversaries access Montanans’ data.”

Instead, Knudsen has pushed back against the First Amendment arguments by emphasizing TikTok’s alleged, but still largely unproven threat to national security.

“We’ve allowed this trojan horse into our country,” he said during the Krach Institute interview.

Update, 7:06 p.m. EST: Added statement from Knudsen’s spokesperson.

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