TikTok sues to stop Montana from enforcing its "unconstitutional" ban

Days after TikTok users sued to block Montana's TikTok ban, TikTok has followed through on its promise to fight the ban and filed its own lawsuit in a United States district court in Montana.

"We are challenging Montana's unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana," Brooke Oberwetter, TikTok's spokesperson, told Ars. "We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts."

TikTok's complaint hits all the same points that TikTok users' lawsuit does.

TikTok argued that Montana's ban is preempted by federal law because only the federal government can regulate national security and foreign affairs. The ban also allegedly violates the Commerce Clause of the US Constitution, partly by interfering with TikTok's availability to users in other states and by risking "disrupting the flow of commerce between states." And, as many experts have pointed out, the ban allegedly violates the First Amendment by "unconstitutionally shutting down the forum for speech for all speakers on the app and singling these speakers out for disfavored treatment with the content-based rationale that videos on TikTok are harmful to minors."

However, TikTok's lawsuit also builds on the users' lawsuit by adding another argument. TikTok argued that Montana's TikTok ban is an "unconstitutional bill of attainder." According to the complaint, this means that:

Rather than regulate social media companies more generally, the Ban banishes TikTok, and just TikTok, from the State for purely punitive reasons, as evidenced by the State's decision to single out Plaintiff for harsh penalties based on speculative concerns about TikTok's data security and content moderation practices.

Named as a defendant in the lawsuit is Austin Knudsen, Montana's attorney general, who is charged with enforcing the ban.

Knudsen's spokesperson, Emily Flower, told Ars, that "we expected legal challenges and are fully prepared to defend the law that helps protect Montanans' privacy and security."

The TikTok users' complaint also noted that Knudsen has said that he expects that the US Supreme Court will likely have to weigh in.

Ars could not immediately reach the TikTok users' lawyer, Ambika Kumar, to comment on TikTok's lawsuit, but Kumar previously told Ars that "Montana's blanket ban prevents our clients, and all Montanans, from engaging in protected speech. We are determined to see that this misguided and invalid law is permanently enjoined."

Now TikTok is also requesting an order invalidating Montana's ban and "preliminarily and permanently enjoining" Knudsen and the state "from enforcing the TikTok ban."

Unless these lawsuits or other challenges succeed, Montana's TikTok ban will take effect on January 1, 2024. It imposes a $10,000 a day penalty "any time an individual in Montana accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok," TikTok's complaint said.

Last December, The New York Times reported that the US Department of Justice and FBI launched investigations into TikTok after it was revealed that ByteDance employees potentially accessed American user data--surveilling journalists and their acquaintances.

In a press release, Knudsen cited this incident among other national security concerns that prompted his support for Montana's ban. Flower pointed Ars to reports from Human Rights Watch and Forbes, alleging that ByteDance may have no choice but to share data with the Chinese Communist Party, and ByteDance had already planned to monitor specific US citizens.

"The Chinese Communist Party is using TikTok as a tool to spy on Americans by collecting personal information, keystrokes, and even the locations of its users--and by extension, people without TikTok who affiliate with users may have information about themselves shared without evening knowing it," Flower told Ars.

TikTok has continued to argue that Congress' and Montana's national security concerns over the Chinese Community Party potentially seizing US data from China-owned ByteDance and spying on Americans are "unfounded."

In TikTok's complaint, the social media company also argued that Montana has overlooked more targeted measures to address the state's national security concerns, as well as concerns over minors accessing inappropriate content on the app.

Now, unless a court intervenes, TikTok warned that because the ban is technically hard to enforce, app stores might restrict access to TikTok throughout the US. And Montana "would need to block any user from accessing TikTok the moment they cross state lines, and for those users who want to retain access to TikTok, they would be required to adjust their plans accordingly."

"In less than eight months, no resident of, visitor to, or worker passing through Montana will be able to download TikTok on his or her phone or mobile device, post any videos to TikTok for others to see, or view any content on the platform," TikTok's complaint said.