Montana TikTok Ban is Undeniably...
Unconstitutional; Unworkable; Unenforceable; and Just Plain Dumb
Update May 21, 2023
Montana's Governor Greg Gianforte signed the first in the nation
State's banning of the file sharing application, TikTok.
Several business and legal organizations have filed, or will file, lawsuits
challenging the TikTok ban on the grounds that the TikTok
ban violates
First Amendment protected free speech rights. I think another
maybe even stronger legal case can be made that the Montana ban violates
the Article 1, Section 8, Clause 3, known as "The Interstate Commerce
Clause." The U.S. Constitution grants Congress the sole power to "To
regulate Commerce with foreign Nations, and among the several States."
Many will argue, and I do so strongly, that Google, Apple, and Microsoft, the most notable online app stores, do not operate in Montana. Google and Apple are located in California, while Microsoft hails from the State of Washington. To my knowledge, neither are there any web servers owned by the Tech Giants co-located within the boundaries of the State of Montana. Unlike say, a weapons purchase that occurs at a defined retail location with a physical address, the downloaded transactions do not actually originate in the State of Montana. Montana's attempt to ban this commerce, therefore, clearly stands in opposition to the notion that all commence between the various states comes under the legal jurisdiction of Congress.
Yes, the ban is an assault on those TikTok content providers who live and post in Montana. The ACLU has made its position known. In a press release, the civil liberties stalwart stated what will be the challenges on First Amendment grounds.
With this ban, Governor Gianforte and the Montana legislature have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment.”
Yes, the ban is an assault on all technology firms that do business in Montana. As reported by CNN in the link above, an industry trade group, Net Choice, offered the following response to the TikTok ban becoming law in Montana. Carl Szabo, NetChoice’s general counsel, was quoted with the following.
The government may not block our ability to access constitutionally protected speech – whether it is in a newspaper, on a website or via an app. In implementing this law, Montana ignores the U.S. Constitution, due process and free speech by denying access to a website and apps their citizens want to use.
The Dispatcher's Analysis of the text of the bill original posted 04/19/2023 follows:
The legislature in the State of Montana has passed its own TikTok ban. The actual purpose of this legislation is far from clear. The text detailing the ban is a totality of 5 pages long. All of Page One and ⅓ of Page Two consists of nothing but boiler plate examples of the Sins of TikTok. Of course, these same transgressions when done by users of any other social media platform escape these lawmakers ire.
The text of the bill describing what actions the bill proscribes Montana take is ⅔ of Page Two and ⅓ of Page Three. Below is the entirety of the enactment and enforcement measures this bill details.
Read the entire 5 page bill here. [pdf will open; capitalization issues are in the text of the bill]
BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF MONTANA:
Section 1. Prohibition -- penalty --
enforcement -- definitions.
(1)
Tiktok may not operate within the territorial jurisdiction of Montana.
An entity violates this prohibition when any of the following occurs
within the territorial jurisdiction of Montana:
(a)
the operation of tiktok by the company or users; or
(b)
the option to download the tiktok mobile application by a mobile
application store.
(2)
An entity that violates a provision of this section is liable in
the amount of $10,000 for each discrete violation and is liable for an
additional $10,000 each day thereafter that the violation continues.
(3) It is an
affirmative defense to this section if the violating entity could not
have reasonably known that the violation occurred within the territorial
jurisdiction of Montana.
(4)
Penalties under this section do not apply to law enforcement activities,
national security interests and activities, security research
activities, or essential government uses permitted by the governor on
the information technology system of the state.
(5)
Penalties in this section do not apply to users of tiktok.
(6) The
department of justice shall enforce the provisions of this section.
(7) As used
in this section, the following definitions apply:
(a)
"Discrete violation" means each time that a user accesses tiktok, is
offered the ability to access tiktok, or is offered the ability to
download tiktok."Entity" means a mobile application store or tiktok
(a) "Mobile
application" means a type of software program designed to run on a
mobile device.
(b)
"Territorial jurisdiction" means all places subject to the criminal
jurisdiction of Montana.
(c)
"Tiktok" means the social networking service owned by the Chinese
company bytedance limited or any successors.
Two provisions point out how the legislators themselves have no idea what they are actually proposing.
§1, ¶2 States: an entity that violates a provision of this section is liable in the amount of $10,000 for each discrete violation and is liable for an additional $10,000 each day thereafter that the violation continues.
§1, ¶5 States: Penalties in this section do not apply to users of tiktok.
Well, if not to users of TikTok, then exactly to whom do the penalties apply? TikTok is not sold like liquor at the corner store. If TikTok, Apple, Google, or any other online business have no servers located in the State of Montana, then TikTok, Apple, et al, do not operate inside the State of Montana. These state legislators admit by omission they have no idea how to actually accomplish their goals because they have no understanding of our interconnected world. This legislation is merely a pointless exercise in misplaced testosterone replacement therapy.
On March 16, 2023, I posted an in-depth analysis of what a TikTok ban would actually entail. I pointed out that Senator's Mark Warner's legislation to create a nation wide TikTok ban is 55 pages long. And nowhere in this bill does it detail exactly how a TikTok ban would come to be all across these US of A. TikTok is — in its metaphysics — nothing more or less than very deep lists of IP addresses and server locations.
May 21. 2023
A review of the signed ban and the technical difficulties of enforcement were reported by the PBS News Hour, May 18, 2023. The central question the NewsHour addressed was expressed in the title of the report itself: "Can Montana enforce a TikTok ban?
The PBS report discussed several technical issues and difficulties surrounding enforcement of the ban. The most salient of these issues also touches on the interstate nature of these transactions.
Apple and Google’s address-linked billing could be bypassed with prepaid cards and IP geolocation easily masked by using a VPN service, which can alter IP addresses and allows users to evade content restrictions, said mobile security expert Will Strafach, the founder of Guardian, which makes a privacy protection app for Apple devices.
Also in the PBS report cited above, Montana Attorney General Austin
Knudsen made the completely off the mark comparison
between regulating TikTok, and the regulation of online gambling.
I am no lawyer, but this clown must be one. Nonetheless, let me
teach him some law.
Ultimately, guidelines and regulations concerning gambling begin with the Federal Government, and then are passed to the various states to interpret and enact. These state actions are always within the guidelines issued by Uncle Sam.
In earlier reporting by PBS on the Montana TikTok ban, made a day earlier, May 17, 2023, a very salient point was made concerning TikTok's competitors, mainly Facebook and Snapchat, both owned by US social media giant, Meta. The same could also be said about YouTube, owned by US powerhouse, Google. These online apps are, in fact, not very much different than TikTok from a technical or business practices point of view.
The app’s fun, goofy videos and ease of use has made it immensely popular, and U.S. tech giants like Snapchat and Meta, the parent company of Facebook and Instagram, see it as a competitive threat.
As I have stated, I don't Tik. I don't Tok. I don't gamble online. So none of this truly affects me. Nor I do think any ban of TikTok at any level of government will concern any of my clients. That said...
Most Government IT tricks end up being very stupid, indeed. This one is just par for the course. So, whenever I can make a new Stupid Government IT Trick Dispatch, I will do so. I really dig the theme. And it allows me once more use my very cool new graphic that applies in so many different situations.
¯\_(ツ)_/¯
Gerald Reiff