TikTok ban stalls as Montana governor suggests covering all foreign foes

Earlier this month, Montana passed the first bill to ban TikTok statewide, upsetting critics who claimed the law was unenforceable, both technically and legally. Now The Wall Street Journal reports that before the controversial bill could even officially reach Governor Greg Gianforte’s desk, he was already taking a pen to the bill and crossing out every mention of TikTok. Gianforte’s press secretary, Kaitlin Price, told Ars that his intent was to amend the bill to address critics’ technical and legal concerns with the original language.

“The amendment for consideration seeks to improve the bill by broadening Montanans’ privacy protections beyond just TikTok and against all foreign adversaries, while also addressing the bill’s technical and legal concerns,” Price told Ars.

Ars has since reviewed a draft of the governor’s proposed amendments, confirming that—rather than target TikTok specifically—the amended bill would instead take aim at all social media apps that “provide certain data to foreign adversaries.”

The governor also proposed eliminating penalties for app stores for making TikTok available in the state, striking out those sections, too. His amendatory language tightens the bill in that regard by only penalizing the companies found guilty of sharing Montanans’ data with foreign adversaries. But, otherwise, the governor’s language broadens the bill, and, according to the Electronic Frontier Foundation’s civil liberties director, David Greene, his proposed amendments haven’t clarified every legal and technical concern that critics raised.

“There’s just a million questions about what the bill does and how it would be enforceable,” Greene told Ars.

Enforcing the bill is still technically a challenge, since “Montana doesn’t control all Internet access in its state,” Greene said. And it’s still legally problematic, in part because a state can’t regulate interstate commerce. There’s also an issue where, if the state decides that a social media company like TikTok should be illegal in the state, any action that the state takes is “still gonna have to survive First Amendment scrutiny,” Greene said. Civil rights experts have argued that Montanans have a right to express themselves and access information on TikTok.

As amended, the Montana law prohibits any social media applications that collect user data from providing that personal information or data to foreign adversaries “or a person or entity located within a country designated as a foreign adversary.” If a social media company violates the law, the state’s Department of Justice can impose fines of “$10,000 for each discrete violation,” and the app is then “liable for an additional $10,000 each day thereafter that each discrete violation continues.”

The law defines a social media application as “a person or entity that owns or operates an Internet-based electronic application through which content can be shared by users, including but not limited to commentary, videos, still photographs, blogs, video blogs, podcasts, and music.” The bill specifies that Internet service providers are not considered social media applications.

TikTok spokesperson Brooke Oberwetter told Ars that the company had not yet reviewed the governor’s amended language and could not provide Ars with additional comments on Montana’s bill at this time. Oberwetter shared TikTok’s original statement when Montana’s bill passed, which said that “the bill’s constitutionality will be decided by the courts” and noted that “the bill’s champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices.”

“We will continue to fight for TikTok users and creators in Montana whose livelihoods and First Amendment rights are threatened by this egregious government overreach,” Oberwetter said.

Currently, the Montana bill is being transmitted to the governor’s office, the WSJ reported. From there, Gianforte can either sign the bill into law or choose to veto the bill. If he does not act within 10 days, the bill would automatically become law and would be scheduled to come into effect on January 1, 2024.

https://arstechnica.com/?p=1934753