Montana's first-in-the-nation ban on TikTok blocked by judge who says it's unconstitutional

The TikTok download screen is seen on the Apple Store on an iPhone, in Ottawa, Wednesday, Oct. 18, 2023. THE CANADIAN PRESS/Adrian Wyld

HELENA, Mont. — Montana's first-in-the-nation law banning the video-sharing app TikTok in the state was blocked Thursday, one month before it was set to take effect, by a federal judge who called the measure unconstitutional.

The ruling delivered a temporary win for the social media company that has argued Montana's Republican-controlled Legislature went "completely overboard" in trying to regulate the app. A final ruling will come at a later date after the legal challenge moves through the courts.

U.S. District Judge Donald Molloy said the ban "oversteps state power and infringes on the Constitutional right of users and businesses" while singling out the state for its fixation on purported Chinese influence.

"Despite the state's attempt to defend (the law) as a consumer protection bill, the current record leaves little doubt that Montana's legislature and Attorney General were more interested in targeting China's ostensible role in TikTok than with protecting Montana consumers," Molloy wrote Thursday in granting the preliminary injunction. "This is especially apparent in that the same legislature enacted an entirely separate law that purports to broadly protect consumers' digital data and privacy."

Montana lawmakers in May made the state the first in the U.S. to pass a complete ban on the app based on the argument that the Chinese government could gain access to user information from TikTok, whose parent company, ByteDance, is based in Beijing.

The ban, which was scheduled to take effect Jan. 1, was first brought before the Montana Legislature a few weeks after a Chinese spy balloon flew over the state.

It would prohibit downloads of TikTok in the state and fine any "entity" -- an app store or TikTok -- $10,000 per day for each time someone "is offered the ability" to access or download the app. There would not be penalties for users.

TikTok spokesperson Jamal Brown issued a statement saying the company was pleased that "the judge rejected this unconstitutional law and hundreds of thousands of Montanans can continue to express themselves, earn a living, and find community on TikTok."

A spokeswoman for Montana Attorney General Austin Knudsen, also a Republican, tried to downplay the significance of the ruling in a statement.

"The judge indicated several times that the analysis could change as the case proceeds," said Emily Cantrell, spokeswoman for Knudsen. "We look forward to presenting the complete legal argument to defend the law that protects Montanans from the Chinese Communist Party obtaining and using their data."

Western governments have expressed worries that the popular social media platform could put sensitive data in the hands of the Chinese government or be used as a tool to spread misinformation. Chinese law allows the government to order companies to help it gather intelligence.

More than half of U.S. states and the federal government have banned TikTok on official devices. The company has called the bans "political theatre" and says further restrictions are unnecessary due to the efforts it is taking to protect U.S. data by storing it on Oracle servers. The company has said it has not received any requests for U.S. user data from the Chinese government and would not provide any if it were asked.

"The extent to which China controls TikTok, and has access to its users' data, forms the heart of this controversy," the judge wrote.

Attorneys for TikTok and the content creators argued on Oct. 12 that the state had gone too far in trying to regulate TikTok and is essentially trying to implement its own foreign policy over unproven concerns that TikTok might share user data with the Chinese government.

TikTok has said in court filings that Montana could have limited the kinds of data TikTok could collect from its users rather than enacting a complete ban. Meanwhile, the content creators said the ban violates free speech rights and could cause economic harm for their businesses.

Christian Corrigan, the state's solicitor general, argued Montana's law was less a statement of foreign policy and instead addresses "serious, widespread concerns about data privacy."

The state hasn't offered any evidence of TikTok's "allegedly harmful data practices," Molloy wrote.

Molloy noted during the hearing that TikTok users consent to the company's data collection policies and that Knudsen -- whose office drafted the legislation -- could air public service announcements warning people about the data TikTok collects.

The American Civil Liberties Union, its Montana chapter and the Electronic Frontier Foundation, a digital privacy rights advocacy group, have submitted an amicus brief in support of the challenge. Meanwhile, 18 attorneys generals from mostly Republican-led states are backing Montana and asking the judge to let the law be implemented. Even if that happens, cybersecurity experts have said it could be challenging to enforce.