There are few things more maddening than watching state legislators try to regulate technology that they clearly do not understand. Cue Montana, where last week the legislature passed a bill banning TikTok from operating in the state.
The bill was bad enough as-passed. TechFreedom joined the ACLU and several other civil liberties groups in a coalition letter explaining that the complete ban of an entire communications platform is unjustified and unconstitutional. Here’s why:
Seemingly nobody has been able to actually define, in any concrete terms, what national security risk TikTok poses. There has been a lot of generalized speculation and fear-mongering, but few (if any) have offered specific use cases detailing the harms to be protected against. What’s the specific government interest here?
Even if one considers the generalized fears that have been raised, a complete ban is not justified. Even content-neutral speech regulations must be narrowly tailored; that is, they must “not burden substantially more speech than is necessary to further the government’s legitimate interests.”
Worried about the Chinese government gaining access to sensitive government information? That’s certainly a legitimate government interest. Banning TikTok from government devices has the dual benefit of actually addressing that concern and not implicating the First Amendment in the first place. But banning TikTok for everyone obviously goes way farther than necessary to protect sensitive government information.
Worried about the Chinese government gaining access to the data of everyday citizens? I’m less convinced of the significance of this government interest—especially since the CCP can already get all that data by purchasing it from a data broker. But if one was worried about such a thing, instead of banning an entire platform you might—say—pass a comprehensive data privacy law. In short, nothing has been proven, or even alleged, at this point that justifies cutting off an entire forum used by millions of Americans to engage in protected speech.
That’s all to say nothing about how profoundly ineffective and unenforceable the bill was, given the widespread use of VPNs.
Nevertheless, the Montana legislature persisted.
Enter Montana Governor Greg Gianforte. Yesterday, he issued an amendatory veto, sending the bill back to the legislature with proposed changes.
Proposed changes, I might add, that range from “missing the point” to “profoundly idiotic.”
The thrust of the amendments is to ban TikTok without actually using the name “TikTok.” The amendments accomplish this by banning platforms that do certain things (more on that in just a moment) rather than by name. Perhaps Gianforte was responding to concerns that the legislation would constitute a bill of attainder, and decided to wink-wink nudge-nudge it.
But the naming of TikTok was not ultimate infirmity of the bill—the problem was that the bill took a sledgehammer to speech in order to kill a (potentially imaginary) fly. A bill that effectively does the same thing (just now potentially to other platforms too!) does nothing to address the First Amendment concerns discussed above.
Things get especially stupid when you look at what actions will sweep a platform under the bill’s blanket ban:
(1) A social media application may not operate within the territorial jurisdiction of Montana if the social media application allows:
(a) the collection of personal information or data; and
(b) the personal information or data to be provided to a foreign adversary [N.B. as defined by federal law] or a person or entity located within a country designated as a foreign adversary.
Conspicuously absent from the bill, including the proposed amendments, is any definition of the phrase “personal information or data.”
“Surely,” you might think, “that just covers the data platforms amass by monitoring and tracking us, right?”
Perhaps not. The bill doesn’t define the term, so who knows what it means in their heads. But we have an idea of what it means out in the real (online) world, by way of the regulations implementing the Children’s Online Privacy Protection Act (COPPA). Those regulations include in the definition of “personal information” things like:
- First and last name
- Online contact information
- A screen or user name where it functions in the same manner as online contact information
In other words, the types of information that accompany virtually every piece of content posted on social media. If a platform allows that kind of information to be provided to any foreign adversary or a person or entity located within a foreign adversary, it is banned from Montana.
Do you know who might be persons located within a country designated as a foreign adversary? Users. Users who are provided the kinds of “personal information” that are inherent in the very concept of social media.
So, effectively, the bill would ban any social media company that allows any user in China, Russia, Iran, or Cuba to see content from a Montana user (and this is a generous reading, nothing in the bill seems to require that the data/information shared be from a Montana resident). On top of it, each time a user from one of those countries accesses content, platforms would be subject to a $10,000 fine.
Do you know which platforms allow people in those countries to access content posted in the United States? All of them.
Congratulations, Montana Governor Greg Gianforte. You just managed to accidentally ban all social media for Montanans. Good work.