(CN) — The fate of Montana's TikTok ban is in the hands of a federal judge who heard arguments in the company's First Amendment case on Thursday at the Russel Smith Courthouse in Missoula.
Two consolidated cases, brought last May by TikTok Inc. and five TikTok creators, followed the Montana Legislature’s passing of Senate Bill 419 that month. The law bans Montanans from using the social media app over fears that the company is sharing private user data with the Chinese Communist Party and disseminating harmful content.
TikTok, which earlier this year boasted 150 million American users each month, claims it collects only limited user data, like username, date of birth and, depending on how one signs up for the app, phone number and email address.
Montana legislators challenge the validity of those claims.
TikTok’s continued operation in the U.S., according to SB 419, serves as “a valuable tool to the People's Republic of China to conduct corporate and international espionage in Montana and may allow the People's Republic of China to track the real-time locations of public officials, journalists and other individuals adverse to the Chinese Communist Party's interests."
The ban would make it illegal for Apple and Google app stores to offer the app in Montana and impose a $10,000 fine for each violation.
TikTok, which is owned by Beijing-based company ByteDance, and five TikTok creators have asked the court for a preliminary injunction to prevent the ban’s enforcement on Jan. 1, 2024.
“The state’s ban in unconstitutional. It violates the First Amendment rights of plaintiff TikTok Inc. and the thousands of Montanans who use TikTok to communicate,” the plaintiffs write their consolidated motion in the U.S. District Court for the District of Montana lawsuit against state Attorney General Austin Knudsen.
The plaintiffs also argue that the ban is preempted by federal law because it “intrudes on the federal government’s exclusive authority over foreign affairs and national security” while violating the Commerce Clause “by unduly burdening interstate commerce and discriminating against foreign commerce.”
During Thursday's hearing, Senior U.S. District Judge Donald W. Molloy asked the plaintiffs' lawyers whether there’s a prohibition on legislation that relies on opinions over facts, and how the ban would affect Indigenous users on reservations where state criminal law does not apply.
Both attorneys, Ambika Kumar and Alexander Berenguat, argued Montana relies on news articles over case law for its national security defense. Berenguat said the ban would not apply to reservations, and that TikTok users in those areas may have an undue burden from challenges in determining whether they are in a territory regulated by SB 419.
Montana Solicitor General Christian Corrigan, asked by Molloy what makes TikTok’s retrieval of voluntary data any different from tech companies like Google, said that TikTok is the only platform connected to a “hostile foreign power,” and the only one with evidence of a backdoor accessible from China.
The judge challenged that notion, since TikTok’s affidavits did not reinforce the state’s concerns about the company sharing data with the Chinese military and its government.
“TikTok does not operate in China, nor does their parent corporation. So how do you get it both ways?” Molloy asked before reiterating his question about the benchmark for a state to make laws that regulate hypothetical or known facts.
“The state doesn't need to form a blue-ribbon commission to show that fire is dangerous, or water is wet,” Corrigan reasoned. He suggested widespread concerns and reporting are enough to justify the state’s ban, especially those that revealed contradictions in statements from TikTok’s CEO to Congress.
Corrigan also argued that Montana targeted TikTok for its data practices and risk to consumers, not its speech, offering an analogy that a cell phone maker can’t prevent a state from banning its product if it causes cancer or explodes because everything that happens on the phone is protected speech.
“Well, I think that’s not a very good analogy, but that’s your argument,” Molloy said.
The judge also asked Corrigan if Montana could ban a newspaper if the Chinese Communist Party showed an interest in it.
Corrigan drew a distinction in that TikTok has access to user data while posing a security threat. The law also doesn't ban an entire medium, he added; users can publish content on other platforms, though they may have a preference for TikTok.
Montana insists its ban does not infringe on the federal government’s foreign affairs power, arguing that the ban only reiterates the U.S.’s stance on China as a foreign adversary and that the law does not regulate the company outside of Montana or subject foreign companies to lawsuits in the state.
Before adjourning, Molloy heard brief rebuttals from Berenguat and Kumar, who reiterated there’s no doubt TikTok engages in First Amendment-protected speech along with its users and said Attorney General Knudsen’s own testimony in the House of Representatives had declared TikTok a “business that is controlled by an existential threat” and “an enemy of the United States.”
Molloy said he would consider the arguments and issue a ruling as quickly as possible.
In a statement on Thursday, Montana deputy communications director Emilee Cantrell accused TikTok of using the First Amendment "to evade much-deserved scrutiny."
"However, as the state made clear, the First Amendment does not permit companies to let foreign adversaries access Montanans’ data," Cantrell said. "TikTok also relied on its illogical argument that Montana lacks evidence of its link to China, while simultaneously arguing that the law is pre-empted because the company is negotiating with the federal government over China-related national security concerns. Montana’s law to protect its citizens’ privacy is narrowly tailored and will meet properly applied judicial scrutiny.”
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