Montana’s TikTokers Are in Legal Limbo After State Ban

When Spencre McGowan, an herbalist and a cookbook writer in Butte, Montana, started posting on TikTok to help pull herself out of a “depressive funk” in 2021, she could have never imagined her quick, rustic videos of comforting food recipes and outdoor wanderings would net her an audience of 110,000 committed followers in less than two years. TikTok, seemingly overnight, became her primary platform for promoting her books and connecting with people that came to her for a sense of friendly familiarity—short, stress-free peeks into life in a peaceful, isolated Montana cabin—as the coronavirus pandemic raged on.

Now, both her community and her business—everything she built on TikTok in the past two years—are in jeopardy. Montana has passed legislation banning the app as of January 2024. McGowan’s primary online home has been foreclosed. In an otherwise mostly closed-off, rural state, McGowan said TikTok offered her a crucial portal into the outside world while she was tucked away for months in an isolated, icy cabin.

“People tend to keep to themselves here, from what I’ve experienced,” McGowan said. “TikTok has been a great reminder and connection to other cultures and parts of countries around the world, especially during Covid. The content that I consume has been really helpful.”

Montana’s first-of-its-kind law banning TikTok threatens to cut McGowan and other creators off from their followings—the main promotional tool propping up their livelihoods. When the bill takes effect in January, it will force creators and business owners across the state to make a difficult choice: abandon the app that has so enriched their lives and their businesses or sidestep the law and continue using TikTok in a state of anxious legal uncertainty. McGowan said she’s not interested in leaving the state. 

“Our free will is being taken away from us,” McGowan said. Legal experts agree with her. Several who spoke to Gizmodo called the law “clearly unconstitutional” and said it will certainly face legal challenges. The creators Gizmodo spoke to were exploring joining a class action suit against the state.

Montana heads into uncharted territory with the USA’s first TikTok ban 

Lawmakers around the country and around the world have been beating the “Ban TikTok” drum louder in recent months, with many expressing fears buttressed by intelligence services that the foreign-owned app could be used as an espionage tool by the Chinese government. While many states and even the federal government have already capitalized on that rhetoric to ban TikTok on devices their employees use, Montana went where no state had gone before and passed a bill banning the app on all personal devices within state lines.

Montana’s TikTok ban prohibits the app from operating “within the territorial jurisdiction of Montana.” The ban, titled—not a joke—“Ban TikTok in Montana,” targets TikTok specifically, but it would also penalize app store providers like Apple and Google with $10,000 fines every time they allow a download of the app in Big Sky Country. Users who already have the app, like McGowan, won’t be penalized under the law. They will, however, be prevented from downloading TikTok’s updates, which means they’d be forced to continue using the system without crucial security patches, privacy updates, or new features. Despite lawmakers’ professed concerns about Americans’ privacy, experts say a ban would leave ordinary people at higher risk of attacks from bad actors.

The unexpected ban has left many creators who rely on the app worried for their futures. It also raises real concerns about a potential snowballing effect of copycat laws spreading to other conservative states. At the same, legal experts speaking with Gizmodo said the hastily written Montana legislation flatly violates basic constitutional protections and seems nearly impossible to enforce on a practical level.

“It’s not a constitutional question, it’s constitutional fact that states cannot do this,” NetChoice general counsel Carl Szabo said during an interview with Gizmodo. “The state of Montana is not even trying to hide the ball on this one.”

How will a TikTok ban affect creators?

Some Montana TikTokers are already trying to persuade their audiences to follow them to rival apps in anticipation of the coming purge. McGowan, however, expressed hesitation and frustration about returning to Instagram. She left that app for TikTok in the first place. It didn’t help her business in the same way the short-form video app did. Instead, she said, the stresses associated with the ban were making her consider quitting social media altogether.

“It’s more infuriating than anything,” McGowan said. “I’m not surprised, I’m not shocked—just supremely disappointed.”

TikTok has vigorously opposed the legislation from its onset. The company says the law would amount to blatant online censorship and represents an “egregious government overreach.”

“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,” the company said in a statement.

Metal-working TikToker Rick Baker, also a combat veteran, expressed similar frustrations in an interview with Gizmodo. Baker, who runs a shop called Metal Tech with a focus on metal sculptures and plasma cutting, admitted he was reluctant to join TikTok several years ago because, like many others, he assumed it was a frivolous time suck meant for kids.

“I kept refusing to download TikTok because I thought it was just a bunch of teenagers dancing and stuff,” Baker said over the phone.

That quickly changed when he started begrudgingly posting on the app after seeing the success of others on the platform. Baker says his business “grew exponentially” once he started uploading quick videos offering viewers an inside look into his workshop and creative process. Videos of his do-it-yourself business quickly started attracting customers from out of state, and then even Canada. Now, the former TikTok skeptic says he sometimes posts five videos per day. Unlike other apps that glamorize the end product, Baker said TikTok is different because he can show viewers “the reality of the process.” Baker worries Montana’s ban would take a sledgehammer to his rapidly growing business.

“You can’t really measure what we would lose as small businesses and entrepreneurs because there’s no way to measure the ripple effects,” Baker said.

Those ripple effects aren’t limited to dollars and cents either. Baker also sells hoodies with the names of Montanans who were killed in action and uses those proceeds to help fund a future state memorial. Baker says he and other veterans use TikTok as a source of “community and recovery” to help make sense of life after war. Those connections are tightly bound. Now, if Baker doesn’t post a video for a few days, he’ll return to a flood of messages from being asking if he’s okay.

“It provides a community and support system for a lot of veterans,” he said. “They check in on one another and really tell people that they’re not alone in their struggle.”

“I get the help I’m looking for by helping others,” the vet said. “The connection is inseparable.” As for Montana’s claim that TikTok poses a national security threat, Baker simply isn’t buying it. The veteran told Gizmodo he believes the ban amounts to a “modern-day Patriot Act” that gives the government the power to censor online speech at will. Ironically, he said, the supposedly hard-on-China bill actually resembles many of the social media bans implemented in Communist China. Irritated, Baker told Gizmodo the perceived government overreach amounts to a “direct violation” of the rights he fought for overseas.

“Nobody ever writes a bill that is this clearly unconstitutional”

Montana’s legislature may have made history by becoming the first state to pass a wholesale TikTok ban, but its path to actually being enacted is a bed of legal landmines. NetChoice’s Szabo, who helped draft a letter calling on Montana governor Greg Gianforte to veto the bill, told Gizmodo the legislation was a clear example of an unconstitutional bill of attainder. In a nutshell, bills of attainder refer to laws that criminalize a specific person or individual and punish them without a trial. Those types of unjustified criminalization efforts are explicitly prohibited under Article 1 Section 9 of the US Constitution.

“Nobody ever writes a bill that is this clearly unconstitutional,” Szabo said.

Gianforte, who has yet to sign off on the bill, has reportedly asked lawmakers to amend the bill by broadening the bill so that it would apply to any social media apps that “provide certain data to foreign adversaries,” according to The Wall Street Journal. Those proposed changes look like an effort to avoid singling out TikTok by name while still blocking the app in practice. State Senator Shelley Vance, the bill’s primary sponsor, did not immediately respond to Gizmodo’s request for comment.

If bills like this were allowed to pass, Szabo said, it would set a precedent where any state could essentially pick and chose to ban any app they wanted for their own personal or political vendettas. In their emphatic letter to the governor, NetChoice, which counts TikTik amongst its members, argued politically liberal states like California or New York could use this law as a legal basis to ban Donald Trump’s Truth Social or even Elon Musk’s Twitter by the logic that their increasingly conservative followings may lead to another January 6 style attack. Szabo said the government’s concerns about Chinese espionage were valid, but that these types of bans don’t actually do anything to address those issues.

“If we want to have that conversation then let’s have that conversation, but attacking a business because it’s based in China I think is a complete miss,” Szabo said.

The creators, on the other hand, aren’t going down without a fight. Baker told Gizmodo he intends to battle the ban and is looking into joining a class action lawsuit of creators against the state. McGowan also said she was contacted by lawyers and is likewise interested in joining the suit to oppose the ban.

Montana’s TikTok-banning bill could run up against Section 230

First Amendment issues, glaring as they may be, aren’t the Montana bill’s only roadblock. Emma Llansó, the Director of the Center For Democracy and Technology’s Free Expression Project, told Gizmodo the Montana law, as currently written, also likely runs afoul of Section 230 of the Communications Decency Act, tech companies’ top legal shield that grants online platforms immunity from lawsuits over the contents of their users’ posts. In this case, Llansó says Montana preventing app stores from letting users download TikTok looks an awful lot like a government illegally preventing a library or newspaper from hosting certain undesirable content.

“Banning an entire communication service is basically the opposite of what you would call a narrowly tailored effort to restrict illegal activity,” Llansó said.

On a practical level, experts said it’s difficult to see how Montana could realistically enforce its ban without implementing a massive, unfeasible location tracking apparatus. Though mobile app stores run by Apple or Google could theoretically verify a Montanan’s geographic location by analyzing a device’s location data or even its billing address, ACLU technologist Daniel Kahn Gillmor said the legislation leaves the definition of an app store and even a “mobile device” frustratingly unclear.

Under the current definition, Kahn said, laptop computers could be considered mobile devices which means online browser app stores could also potentially run afoul of the bill if someone from Montana decides to download TikTok on their desktop. As for other edge cases like people who regularly travel between states, well, the law basically leaves that completely up in the air. When it comes to enforcement, the law is almost comically unspecific.

Every expert speaking with Gizmodo said some Montana TikTok users will likely use virtual private networks (VPNs) or another technical workaround to mask their identities and download the app. Even that’s not without its own problems though. Users who side-load the app or who simply had the app prior to the ban may still be able to use it without running afoul of the law, but they will do so without being able to easily install security patches or other crucial privacy updates.

“At the end of the day you may just have more tech-savvy users of TikTok using VPNs to continue accessing the service anyway but with increasingly worse security and privacy protections because they can’t get regular software updates,” Llansó said.

What happens next?

Despite the potential legal and practical pitfalls, Montana lawmakers appear committed to seeing the law through. In an interview with the New York Times earlier this month, Montana Attorney General Austin Knudsen said he expected a court battle over the TikTok ban and even welcomed it. In his eyes, the ensuing debate could address deeper constitutional questions over online speech on the internet. Montana’s Department of Justice did not immediately respond to Gizmodo’s request for comment.

“We’re under no illusions that this is not going to get challenged,” Knudsen said. “I think this is the next frontier in First Amendment jurisprudence that’s probably going to have to come from the U.S. Supreme Court. And I think that’s probably where this is headed.”

Experts speaking with Gizmodo agreed the Montana lawmaker could try to appeal legal challenges up to higher courts, but none of those experts believe the state’s appeals amount to much more than an extreme case of political theater.

“I would expect all the courts between here and the Supreme Court to decide this law is a pretty sweeping ban on lawful speech,” Llansó said. Szabo similarly said he doubted the law would ever take effect due to its “gross unconstitutionality.”

“It’s a step in the wrong direction,” McGowan said.

“If this was really about banning TikTok, it would be a one-page bill saying the national security threats from China,” Baker said. “However, that’s not the case. This gives them [the government] access to censor anything and everything.” 

“I’m prepared to fight with the other creators in lawsuits,” Baker said. “This is a direct violation of the rights that I went overseas to fight for.