Montana appeals ruling enjoining TikTok ban to Ninth Circuit

Montana Governor Greg Gianforte's ban on TikTok was supposed to take effect this month but a U.S. judge blocked the state's ban before it could. Now, Montana is appealing the decision.

Montana's TikTok ban

Governor Gianforte signed Senate Bill 419 (SB 419) into law on May 17, 2023, making Montana the first state to attempt to ban TikTok.

TikTok is a global entertainment platform for short-form mobile videos. According to TikTok’s Privacy Policy, TikTok collects “information from and about you,” including, but not limited to, account and profile information (e.g., name, age, username, password, language, email, and phone number), purchase information (e.g., payment card numbers or other third-party payment information), phone and social network contacts, and user generated content (e.g., photographs, livestreams, audio recordings, videos, text, and hashtags). Users agree to TikTok’s data collection policy when they sign up for the application.

SB 419, among other things, bans TikTok from operating within Montana and imposes a $10,000 penalty—on either TikTok or any violating entity—for “each time that a user accesses TikTok” and an additional $10,000 fine for each day the violation continues. According to Governor Gianforte, SB 419 was largely enacted to “protect Montanans’ personal, private, and sensitive data and information from intelligence gathering by the Chinese Communist Party.” SB 419 was to take effect on January 1, 2024.

Ban backlash

In response to SB 419, five TikTok users in Montana filed suit against Montana’s Attorney General in the United State District Court for the District of Montana, seeking to challenge the State’s ban. In parallel, TikTok, which is owned by the Chinese company ByteDance, separately filed a complaint on May 22, 2023, also seeking to enjoin SB 419. The two cases were later consolidated, whereby the parties sought a preliminary ruling enjoining SB 419 under First Amendment, Supremacy Clause, and Commerce Clause theories.

On November 30, 2023, the United State District Court for the District of Montana ruled in favor of TikTok to enjoin SB 419, arguing that the plaintiff’s “have shown a likelihood of success as to the merits of” their claims. Specifically, the court stated that:

"While there may be a public interest in protecting Montana consumers, [Montana] has not shown how this TikTok bill does that. Instead, SB 419 oversteps state power and infringes on the Constitutional rights of users and businesses. In conclusion, the balance of the equities and the public interest weigh in Plaintiffs’ favor."  (Alario v Knudsen, 2023 WL 8270811 (D. Mont. Nov. 30, 2023))

Montana's appeal

On January 2, 2024, Montana filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit.

Montana’s TikTok ban represents the first attempted ban of this scope in the U.S., both on the federal and state level. While many states and the U.S. government are wrestling with how to handle and/or restrict TikTok due to privacy concerns, only Montana has sought a complete ban on the app. McDonald Hopkins will monitor how this case unfolds in the Ninth Circuit.

For more legislative updates on data privacy law from McDonald Hopkins, please subscribe to receive our publications or view the links below for recent updates on other state data privacy legislative updates. And, if you have questions about your company’s compliance with cyber regulations, concerns about vulnerability to a ransomware attack or other breach, or if you want to learn more about proactive cybersecurity defense, contact a member of McDonald Hopkins' national data privacy and cybersecurity team.

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