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As Montana looks to ban TikTok, questions linger

by KATE HESTONADRIAN KNOWLER
Daily Inter Lake | April 23, 2023 12:00 AM

Less than a month after Congress battered TikTok’s CEO about Chinese influence over the social media platform and the threat it poses to national security, Montana lawmakers are trying to pass their own statewide ban of the popular app.

Senate Bill 419, sponsored by Sen. Shelly Vance, R-Belgrade, would bar TikTok’s parent company, the Chinese corporation ByteDance, from “operating within the territorial jurisdiction of Montana.”

The bill passed the Montana House on third reading with a 54-43 vote after passing the Senate 30-20 at the beginning of March. If signed by Gov. Greg Gianforte, the ban would become law.

Supporters, including Republican Speaker of the House Matt Regier, have argued that the app poses a national security risk, specifically after a Chinese surveillance balloon crossed into Montana air space at the beginning of February.

“I think there is bipartisan support for the sentiment of this real threat from China,” Regier said last week.

According to TikTok, the app now has 150 million monthly active users in the U.S., an increase from the 100 million it had in 2020. TikTok, which made its debut in 2018, originally was an app where users could share short lip-sync videos on the platform, then called Musical.ly. Since its name change, the app has grown in popularity.

There are other Flathead legislators who have offered their support of the ban. Rep. Braxton Mitchell, R-Columbia Falls, the youngest member of the Legislature, voted for the ban, although he said that he struggled with coming to a conclusion on the issue.

“I grew up using TikTok when it used to be Musical.ly quite a few years ago and have continued to use it until the concerns around China became a national concern,” Mitchell said in an email to the Inter Lake.

Ultimately, Mitchell voted for the potential ban because of its contingent void — meaning that if TikTok is acquired by or sold to another company that is not incorporated in another country that is a foreign adversary, then the bill is voided.

“This has been something I’ve been back and forth now on for a long time, and was one of the tougher votes I’ve taken in my two terms, but I think due to the privacy and security concerns with China that we should move along with banning TikTok in the state of Montana until it’s sold and acquired by someone other than the Chinese Communist Party,” Mitchell said.

Rep. Amy Regier, R-Kalispell, also voted for the legislation, referencing many of the same reasons. National security, according to the representative, was her greatest concern.

“The concern over China’s influence is the big driver as to why people would vote for a bill like this,” Amy Regier said.

Montana’s national delegates are also keeping an eye on the legislation.

According to a spokesperson for Democrat U.S. Sen. Jon Tester, defending Americans from foreign adversaries is among the senator’s top priorities. Tester supported the ban of the app on government devices. However, when it comes to legislation to block the app more broadly, he believes it is critical to protect Montanan’s First Amendment rights.

Republican U.S. Sen. Steve Daines is also in support of banning the app on all federal and state devices.

“I trust the governor and our state Legislature to make the best, most informed decision for Montana communities and public safety,” Daines said in a statement to the Inter Lake.

Some Flathead legislators voted against the legislation, citing logistical concerns and foreign policy implications.

Rep. Courtenay Sprunger, R-Kalispell, opposed the bill on the third reading after an amendment that would have applied the legislation to all social media platforms, proposed by Rep. Katie Sullivan, D-Missoula, failed.

Sprunger said that in its entirety, the bill will be difficult to enforce and could possibly be a form of government overreach, something that she believes Montanans and her constituents alike would oppose.

“The conversation is being brought forward because there is probably a legitimate concern,” Sprunger said. “I just ultimately felt that a no vote was necessary.”

THE BILL holds the company behind TikTok culpable if users download or open the app in Montana. Online marketplaces offering downloads of TikTok in Montana also could face penalties if they violate the proposed ban by making the app available in the state, under the language of the bill.

Each violation is punishable by an as much as $10,000 penalty and an additional $10,000 for each subsequent day that the violation continues. The Department of Justice, according to the bill, is charged with enforcing the measure.

When asked about the enforceability of this legislation, a lot of legislators admitted it likely would be difficult. According to Speaker Matt Regier, systems like geo-mapping may be useful to help enforce the ban.

There is a balance between keeping Montanans safe and invading their privacy and restricting their rights, Sprunger said. More work and further research is needed, she said.

Rep. Dave Fern, D-Whitefish, also opposed the legislation on the House floor. Fern said his concern comes from the deteriorating relationship between the U.S. and China, and the hesitancy to improve it. He also cited his uncomfortability with dealing with international relationships at a state level.

“In a sense, my vote is a message to our Congress to keep in mind that it's incumbent that we improve this relationship,” he said.

He also addressed the debate that occurred on the House floor which got into content and determining what is appropriate for youth, which he did not see as a “TikTok specific issue.”

Fern, like Sprunger, also considered the legislation straying in the direction of government overreach.

“We are rightfully critical of China as a surveillance state,” Fern said. “Ironically, we don’t want to go down that road.”

TikTok is expected to challenge the ban if Gianforte signs it into law.

“The bill's champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bill's constitutionality will be decided by the courts,” said TikTok spokesperson Brooke Oberwetter in a statement. “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.”

INTERNET SERVICE provider MontanaSky’s CEO Ryan Bowman said that he assumes that telecommunications lobbyists got mentions of internet service providers taken out of the bill. He believes that requiring providers to police users’ traffic would be burdensome, impractical and would go against the American values of free speech.

He said that banning a platform would actually bring Montana closer to China in terms of limiting internet freedom.

“I do find it kind of ironic that the GOP, which is historically the party of freedom and limited government, is trying to do something like this that I don’t think helps any constituents in the state,” Bowman said.

Bowman said he shared privacy concerns, but that he wanted to see lawmakers move forward with privacy legislation that would protect users, instead of scapegoating one platform.

“I have no doubt that Google and Meta are gathering a staggering amount of information on anyone,” he said. “Address the problem as a whole instead of carving out one boogie man.”

The application is extremely popular among teens, and the bill is also intended to prevent young Montanans from taking part in dangerous trends that have spread on the platform in recent years.

“TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities,” the bill reads. Among the activities that lawmakers say TikTok promotes among Montana children include lighting a mirror on fire and then attempting to extinguish it using only one's body parts, cooking chicken in NyQuil, smearing human feces on toddlers and licking doorknobs and toilet seats.

Local teens wrote in to the Daily Inter Lake with letters expressing their opinions on the bill. Most were opposed to the legislation.

“Most people that I know, including me, get their news from TikTok and it helps me learn better ways to do certain things,” wrote 13-year old Columbia Falls student Everett Toman.

A few students supported the move, however.

“I don’t personally care if TikTok gets banned, it really doesn’t affect me or my life,” wrote Ella Timlick. “At the end of the day, TikTok is really just a social media platform that probably won’t be around in five to 10 years anyways. I really don’t mind if TikTok gets banned and I kind of hope it does.”

TikTok’s steady growth and relation to China is enough to make some legislators — nationally and statewide — nervous. But the conversation is new, and allows for social, technological issues to merge with statute; for some, that's a legal no-brainer, for others it is uncharted territory.

“I think there are 21st century issues that we deal with that sometimes statutory reforms can't necessarily fix,” Fern said.

Reporter Kate Heston can be reached at kheston@dailyinterlake.com or 758-4459. Reporter Adrian Knowler can be reached at aknowler@dailyinterlake.com or 758-4407.