Blair Miller, Daily Montanan
Gov. Greg Gianforte signed the bill Wednesday that is likely to make Montana the first state to ban the popular social media app TikTok and directed executive agencies to stop allowing employees to use any social media apps linked to U.S. foreign adversaries on state-owned devices or for state business.
“Today, Montana takes the most decisive action of any state to protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party,” the Republican governor said in a statement.
The newly signed law would subject a company that allows the video app to be downloaded from an app store or used in Montana to $10,000 fines for each violation and another $10,000 a day if it continues to violate the law. Individuals using TikTok would not be subject to violations, and the Montana Department of Justice will be tasked with enforcing the ban.
The bill also contains a severability clause that would allow parts of the bill to stand in law even if other parts are deemed illegal or unenforceable. Rep. Katie Sullivan, D-Missoula, had questioned in April if the bill might be unconstitutional since it specifically focused on TikTok and not all social media companies that sell user data to foreign adversaries. The House narrowly failed to adopt an amendment she offered that would have made the bill apply more broadly.
The Governor’s Office said Wednesday he had also proposed amendments to the bill to the legislature that were similar to Sullivan’s amendment and would have made the bill apply to all social media apps providing user data to a foreign adversary – currently China, Cuba, Iran, North Korea, Russia and Venezuela – or a person located in one of those countries.
But his directive to Montana Chief Information Officer Kevin Gilbertson and executive agency directors on Wednesday tells them to do just that.
The directive says effective June 1, no executive agency employee, state employee, or third party working for or on behalf of the state can download or access apps that sell personal data to foreign adversaries while using a government-issued device or connected to a government network.
It also says any of those devices – including cell phones, laptops, tablets, and desktop computers – that already have any apps that meet that criteria will have to delete them.
The only exception would be for law enforcement or essential government services that might need to review something on an app, but those instances would have to be reported to the Governor’s Office.
The Chinese company ByteDance owns TikTok, and Gianforte provided names of several other companies he said have apps that would be banned under the directive: ByteDance’s CapCut and Lemon8; Telegram, a messaging app founded in Russia; Temu, whose parent company is based in Shanghai; and WeChat, whose parent company is also based in China.
“Foreign adversaries’ collection and use of Montanans’ personal information and data from social media applications infringe on Montanans’ constitutionally guaranteed individual right to privacy,” the governor said in the directive.
But there remain questions about the ban passed by the legislature. Some opponents of the bill have said they don’t believe banning an app is possible or legal, while others have said it is unenforceable because people could use VPNs that mask their true location in order to access TikTok and other banned apps.
In a congressional hearing in March, TikTok CEO Shou Zi Chew told lawmakers that ByteDance is not run and regulated by the Chinese government.
“ByteDance is not an agent of China or any other country,” he said.
But lawmakers from both parties, as well as the Biden administration, have pushed for a national ban on the app –which has 150 million U.S. users, many of them teenagers and young adults – over security concerns, data privacy concerns, and censorship.
U.S. Sen. Jon Tester, D-Montana, who is up for reelection next year, has said discussions should be focused on national security and privacy and not on politics, as Roll Call reported.
U.S. Sen. Steve Daines, R-Montana, sent a letter to the company’s CEO last summer calling on the company to stop promoting Russian state media.
Proponents of the bill said the ban could be enforced through technology like that which Montana uses to control where residents can use sports gambling apps. But opponents said it could harm small businesses that use the app to generate a broader customer base, and others who promote educational material, through the bite-sized videos.
Much of the discussion surrounding the bill throughout the session involved the threat of China. Along with Gianforte’s ban of TikTok on state devices in December and a push to keep foreign adversaries from buying land in Montana, the Chinese spy balloon that drifted over Montana in early February exacerbated the issue of relations and spying between the two countries.
“I appreciate Attorney General Knudsen and Senator Vance for their partnership on this important measure and for advancing our shared priority to protect Montanans from Chinese Communist Party surveillance,” Gianforte said Wednesday.
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