The TikTok ban in Montana raises legal and technical questions

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The new rules in Montana will have broader implications than the TikTok bans already in place on state-issued devices in nearly half the states and the US federal government. According to company spokesman Jamal Brown, there are 200,000 TikTok users in Montana, as well as 6,000 businesses using the video-sharing platform.

Here’s what you need to know:

WHY BAN MONTANA TIKTOK?

Supporters of the law in Montana claim the Chinese government can collect US user data from TikTok and use the platform to spread pro-Beijing misinformation or messages to the public.

This echoes arguments by a bipartisan group of US Senate lawmakers, as well as heads of the FBI and CIA, all of whom said TikTok could pose a national security threat because of its Beijing-based parent company ByteDance operates under Chinese law.

Critics pointed to China’s 2017 national intelligence law, which requires companies to cooperate with the country’s governments on state intelligence work. Another Chinese law implemented in 2014 has similar mandates.

TikTok says it has never been asked for its data and would not do so if asked.

How does Montana plan to ban Tiktok?

The law bans downloading TikTok in the state and fines any “entity” — an app store or TikTok — $10,000 a day for each time someone accesses TikTok, they are “offered an opportunity” to access or download it.

That means Apple And Google, which operate app stores on Apple and Android devices, would be held liable for any violations. Penalties would not apply to users.

The nationwide ban will not come into effect until January 2024. It would be invalid if the social media platform were sold to a company not based in “a country designated by the federal government as a foreign adversary.”

The governor has indicated that he would like that expand pushed the bill to other social media apps to address some of the bill’s “technical and legal concerns.” However, lawmakers adjourned before sending him the bill, meaning he couldn’t offer his amendments.

Montana Attorney General Austin Knudsen has pointed to the technology being used to restrict online sports gambling apps in an attempt to limit TikTok operations in the state. Such violations can be reported by anyone. And once the state determines a violation has occurred, it sends a cease and desist letter to the affected company, said Kyler Nerison, a spokesman for Knudsen’s office. He said different companies have different compliance methods and it’s up to them “not to let their apps work in Montana and other states where they’re not legal.”

COULD THE TIKTOK BAN WORK?

Cybersecurity experts say that other than avoiding the fine, there is no incentive for the companies involved to comply and that the law will be extremely difficult – if not impossible – to adequately enforce.

For one thing, there is no comparable type of control in the USA countries like China have about what their citizens are accessing on the Internet. In addition, Internet service providers are not in the picture.

Before the Montana law passed, lawmakers rewrote portions of the bill to exonerate them after an AT&T lobbyist said during a February hearing that implementing the law was “unworkable.”

COULD TECH COMPANIES BLOCK IT?

Apple and Google have not opposed the law. However, a representative from TechNet, the trade group whose membership includes the two tech giants, said app stores are unable to “geofence” apps in different states and that it’s impossible to download TikTok in Montana to prevent . The group has also stated that the responsibility for where it can host should rest with an app, not an app store.

Recon Analytics telecoms analyst Roger Entner believes app stores may be able to enforce the law, but enforcement would be cumbersome and fraught with loopholes. Address-based billing from Apple and Google could be bypassed with prepaid cards, and IP geolocation easily masked by using a VPN service that can change IP addresses and allow users to bypass content restrictions, said Will Straach, an expert on mobile security, founder of Guardian makes a privacy app for Apple devices.

Oded Vanunu, head of product vulnerability research at cybersecurity firm Check Point, agreed that it is difficult for app stores to isolate a single state from downloading an app. He suggested that it would be easier for TikTok to comply with the regulations because it controls the software and can adjust “settings based on users’ geographic location or IP addresses.”

COULD TIKTOK BLOCK ITSELF?

If users allow TikTok to collect their location information, it can track a person up to at least 3 square kilometers (1.16 square miles) away from their actual location. When this feature is turned off, TikTok may still collect approximate location information — like the region, city, or zip code a user is in — based on device or network information, like an IP address.

But similar to the app stores, cybersecurity experts point out that any enforcement measures implemented by the company could easily be circumvented with a VPN and the use of IP geolocation could lead to other problems.

David Choffnes, executive director of the Cybersecurity and Privacy Institute at Northeastern University, said wireless carriers may use the same types of IP addresses across states, which could mean someone not in Montana could be misleading from using it could be banned from TikTok.

WHAT WILL HAPPEN NEXT?

Probably a lawsuit.

Knudsen, Montana’s Attorney General, has previously said he expects the law to end up in court.

TikTok spokeswoman Brooke Oberwetter said Wednesday in a prepared statement that the law violates Montanans’ right to free speech and is unlawful.

“We want to reassure Montanans that they can continue to use TikTok to express themselves, make a living, and find community while we continue to work to defend the rights of our users inside and outside of Montana,” Oberwetter said.

Oberwetter declined to say whether the company will file a lawsuit, but detailed some of the legal issues at play. She argued that Montana was trying to override US foreign policy by claiming that the bill addressed a national security risk. She said foreign policy and national security laws are not made at the state level.

NetChoice, a trade group that represents TikTok and other tech companies, says the bill would violate First Amendment and Bill of Attainder laws, which prohibit the government from imposing a penalty on a specific company without a formal process .