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Our Opinion

Our Opinion: TikTok 'bans' are needlessly censorious and shortsighted

Montana has become the first state to enact a complete ban on TikTok. Republican Gov. Greg Gianforte signed the legislation Wednesday and it is scheduled to take effect next January. The measure is more sweeping than bans put in place in nearly half the states and by the U.S. federal government that prohibit TikTok on government devices. The law is expected to face legal challenges and become a testing ground for whether a TikTok-free America is possible. TikTok has vowed to fight for Montana residents to be able to use the video-sharing app, which is owned by a Chinese tech company.

As tech-skepticism and anti-China sentiment intersect on the stage of political theater, Montana is moving to ban TikTok.

Last week, Gov. Greg Gianforte signed a bill that seeks to eliminate the short-form video social media app from operating within the state’s borders. It would be enforced by fining app stores $10,000 a day for hosting TikTok on mobile devices in Montana. The governor tweeted that he signed the legislation in order “to protect Montanans’ personal and private data from the Chinese Communist Party.”

The first-in-the-nation targeted ban would take effect in January if it survives already mounting legal challenges. Montana faces lawsuits from TikTok and a group of state residents who create content on the social media platform. It’s possible that Montana’s TikTok ban won’t survive the courts, and beyond the clear First Amendment problems there’s the scrutiny of more basic questions: Would app stores be in violation if someone who downloaded TikTok outside Montana crossed over its state borders?

At the moment, we’re not worried that the Massachusetts Legislature is weighing copycat legislation. (Beacon Hill, like several other states, is considering a more common-sense and less-restrictive bill that would simply prohibit downloading TikTok on state-issued devices). It is worth nothing, though, that the political theater playing out in Helena might be informing and fueling other questionable legislative efforts on the national stage. Even before Montana’s moves, some federal lawmakers have floated a national ban on TikTok.

The app is owned by the China-based company ByteDance, and some officials have worried that the Chinese government could siphon U.S. users’ data, potentially for spying purposes — though there’s no solid evidence this has ever happened to any of the millions of Americans who use TikTok daily. Still, the app’s meteoric rise in popularity and resultant impact on digital discourse offers fertile ground for culture-war politicking. Republican representatives on the House Foreign Affairs Committee earlier this year rammed through a bill that would effectively ban TikTok from all mobile devices in the country. While Democrats on the panel were opposed, the bipartisan energy behind tech-fretting and China-hawk chest-thumping increases the likelihood of virtue-signaling federal legislation with few real-world benefits and many civil liberty pitfalls.

Like many groups critiquing Montana’s TikTok ban, we worry about the implications for the First Amendment that stem from this frenzy of fear and political posturing. Keegan Medrano, policy director for the state’s American Civil Liberties Union branch, said the Montana law “trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment.” We certainly don’t want to see that scaled up to the national level just because some presidential hopefuls or senators facing reelection want to signal their shortsighted “toughness” on tech and China.

This is a defense of Americans’ right to free expression and association, not a dismissal of digital privacy and security concerns. We worry about tech companies exploiting users’ sensitive data, especially Chinese firms complying with the country’s 2017 cybersecurity law demanding government access to data collected or stored in China. Nevertheless, whether it’s TikTok or Facebook, these platforms now constitute a primary platform from which millions of Americans express themselves, criticize their government, share information, and pursue their passions and livelihoods. However one feels about that reality, there ought to be a very high bar for blanket restrictions on those modes of expression.

It is true that user data often is far too vulnerable to foreign governments and private entities alike — but that was true before the advent of TikTok and would still be the case even if this one app were wiped from the web. If state legislatures and Congress really wanted to get serious about protecting Americans’ digital privacy and security, they could focus their legislative efforts on those deeper issues rather than the theatrics of being the loudest anti-TikTok warrior in the room.

The European Union, for example, has considerably stronger data privacy protections than the U.S. Just this week, EU regulators slapped Meta (the company formerly known as Facebook) with a $1.3 billion fine for violating General Data Protection Regulation by transferring Facebook users’ personal data to servers outside of Europe. It was the largest fine ever levied under EU data privacy laws, topping the $806 million penalty levied against Amazon in 2021.

Perhaps such laws have too much teeth for U.S. lawmakers whose tough talk often belies their donor relationships with titans of the tech world. Still, it’s worth noting how those EU data privacy laws distinguish themselves from individual-platform “bans”: They don’t pick winners and losers of the digital marketplace by targeting specific apps or companies in the discourse du jour, and they don’t infringe on citizens’ decisions to use those those forums for self-expression and the free flow of information. We urge state and federal lawmakers to let those principles — not reflexive censoriousness or China-hawk peacocking — guide the badly needed upgrades to America’s digital marketplace.

Or, as the Montana ACLU’s policy director put it succinctly: “We will never trade our First Amendment rights for cheap political points.” We hope our leaders agree.

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