In this photo illustration, the TikTok app is displayed on an Apple iPhone on Aug. 7, 2020 in Washington, D.C. (Photo Illustration by Drew Angerer | Getty Images)
This article was first published by the Daily Montanan.
A federal judge in Missoula peppered state attorneys representing Montana Attorney General Austin Knudsen with questions Thursday morning about why the state believes banning TikTok in the state is necessary, at times hinting that he was hearing conflicting arguments as he considers whether to temporarily block the measure from becoming law.
Knudsen’s attorneys and attorneys for both TikTok and a group of “creators” who use the platform, each of which sued the attorney general, had 30 minutes apiece in front of U.S. District Court Judge Donald Molloy, arguing why he should either issue or deny the plaintiffs’ request for a preliminary injunction blocking the new law, which is set to take effect Jan. 1.
The new law, if it is allowed to take effect, would not subject anyone who uses TikTok in Montana to any penalties, rather punish companies that allow the app to be downloaded or used in Montana by handing down $10,000 fines for each violation. Ongoing violations would add additional $10,000 per day penalties, which the Montana Department of Justice would enforce.
Two attorneys for the plaintiffs, Ambika Kumar and Alexander Beregaut, told Molloy the law served no compelling government interest, was overly broad in violation of the First Amendment, and that while Knudsen’s attorneys say the law is about protecting Montanans’ data privacy, it is actually about the state creating a foreign policy to target China.
“(The state) has gone completely overboard. It’s not even close,” Kumar told Molloy.
She and Beregaut said the state was merely speculating that TikTok’s parent company, ByteDance, had ties to the Chinese government and was sharing data with the country the federal government labels a foreign adversary – something TikTok’s CEO has denied.
The two attorneys asked Molloy whether legislatures should be able to create law based only on facts, or merely on opinion or speculation. They contend that the law expresses a political view and was pushed forward as a foreign policy statement during legislative discussions on a bill to ban foreign adversaries from owning land in Montana and after a Chinese spy balloon drifted over the state, then across the country.
They also said there are many alternatives to restrict TikTok’s access to Montanans’ data and educate them, including public service campaigns from Knudsen. They said the state did not consider the options before an outright ban.
“It seems there are a lot of things that could have been done other than an outright ban,” Molloy told Solicitor General Christian Corrigan.
When Molloy asked the plaintiffs’ attorneys why the creators could not simply use a different platform, they explained to him that TikTok provided them “unparalleled” reach and revenue compared to other platforms like Instagram because of how they have built their audiences and the way the platform works – not centering content around friends and family.
Corrigan told Molloy that the state legislature passed the bill in response to “widespread concerns” over TikTok in other states and at the federal level. Several states, including Montana, and federal departments have banned their employees from using TikTok on state devices.
He told Molloy that Knudsen’s position is the law, though an outright ban, is narrowly tailored because it is the only option until TikTok “ceases” its alleged ties with China – the only social media app used prevalently in the U.S. that he said is “connected to a hostile foreign power.”
But Molloy pressed him, saying their fillings have only included a handful of news articles alleging TikTok was stealing data.
“The state doesn’t need a blue-ribbon commission to show that fire is hot and water is wet,” Corrigan responded, adding that he believed perhaps TikTok was not telling the court the truth.
But Corrigan also said he and other attorneys on the case had not found anything in the limited discovery they received in July – saying it “was not productive” and telling Molloy the team had “a limited timeframe” to review the materials.
Berengaut pushed back, saying the state received the discovery materials three months ago, and had “ample time.” Furthermore, the state did not seek any further discovery or depositions.
Corrigan told Molloy that the main reason behind the law is to protect Montanans’ data and that national security was a “side” reason. He made an analogy that Molloy said only confused him more about the argument.
Corrigan said Montana “took the lead” in efforts to restrict TikTok, calling it “the first test case on this” while also saying the law was a consumer protection law that benefits Montanans.
But Molloy pushed back, saying the argument was “totally inconsistent” with what Knudsen has said previously – when he China “an adversary of the U.S. and Montana” and said at one point: “We’re going to teach China a lesson,” Molloy responded.
Corrigan told him that Knudsen is not a legislator.
“He wrote the bill,” Molloy quipped back.
Corrigan said lawmakers still had to carry the bill through the legislative process, but also told Molloy that some of the statements they made about the bill targeting China could “give the wrong impression.”
Molloy also asked Corrigan if it was “strange” to him that Montana jumped first in going after TikTok, providing an analogy of his own about the mother of a child who is marching out of step in a parade believing her child was the only one actually in step.
“Just because our state is first doesn’t make it out of step,” Corrigan responded. “The Montana Legislature saw concerns and took the first step. It’s possible others are waiting for the outcome of this litigation.”
One point both the plaintiffs’ and Knudsen’s attorneys agreed upon is that the ban, should it be allowed to take effect, would not be enforceable on six of Montana’s seven Indian reservations because the state of Montana does not have criminal jurisdiction on any except for the Flathead Indian Reservation.
The plaintiffs’ attorneys said that presents another instance in which how the law might be enforced should be questioned, since people in Montana might utilize cell phone towers in bordering states and people on reservations with federal criminal jurisdiction might use a cell tower off the reservation.
During the legislative session, several opponents wondered how the state might enforce the ban and if it could be easily skirted by using internet protocol addresses from other states or countries.
Corrigan noted that companies that might violate the law would have an affirmative defense if they can prove the user could not have reasonably known they were using TikTok illegally.
At the end of the hearing, Molloy commended the attorneys on the presentations and told Corrigan the state’s latest brief opposing the preliminary injunction was better than previous briefs from the department: “Somebody got rid of that poison pen over there.”
He said he would issue a written order either granting or denying the request for the injunction “as soon as possible.” He had not issued the order as of Thursday afternoon.
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