State of Montana responds in TikTok lawsuit

The State of Montana, through its Attorney General Austin Knudsen, called on a federal judge today to keep Montana’s law banning TikTok in the state in effect while the case proceeds in federal court, citing well-documented concerns over the app’s massive data-harvesting practices and access to that data granted to Chinese Communist Party (CCP) officials.

The Montana legislature passed and Governor Greg Gianforte signed Senate Bill 419 (SB 419), which requires TikTok to stop operating in the state and prohibits mobile application stores from making TikTok available for download starting on January 1, 2024. Shortly after the Governor signed SB 419 into law, the company and a group of users funded by TikTok filed lawsuits against the State and requested a preliminary injunction. The reply filed today in the U.S. District Court for the District of Montana refutes and calls out the hypocrisy in the company’s legal arguments for the injunction.

“The federal government, other states, and other countries have recognized the dangers of TikTok because it is under the thumb of Chinese Communist Party officials, but the State of Montana is the first state to take action and protect its citizens’ privacy,” Attorney General Knudsen said. “Our legislators and Governor Gianforte did the right thing in prohibiting TikTok from operating in Montana as long as it is under the control of a foreign adversary. My office looks forward to vigorously defending the law as this case proceeds.”

TikTok’s arguments in its motion for a preliminary injunction, as the State of Montana’s brief makes clear, fall well short of satisfying its burden to prove the company has a substantial likelihood of success on the merits, it will suffer irreparable injury without one, the threatened injury outweighs whatever harm the proposed injunction would cause Montanans, and if, issued, the injunction would not be adverse to the public interest.

“The federal government has already determined that China is a foreign adversary. And the concerns with TikTok are well documented at both the state and federal level, Democrat and Republican. SB419, therefore, furthers the public interest because it protects the public from the harms inseparable from TikTok’s operation.” the brief states. “For these reasons, the Court should deny the Plaintiffs’ motions.”

The State of Montana has the power to regulate products or practices that in its judgment impose unjustifiable consumer harms.

“As a condition of using it, TikTok captures reams of personal, private data from every Montana TikTok user. Then C.C.P. members embedded in ByteDance can use a “god credential” to access those data at any time—without asking TikTok.” the brief states. “No other app conditions its use on making Montanans’ digital privacy subject to data harvesting with at-will C.C.P. access; in this respect, TikTok stands alone.”

The company does not dispute the traditional power Montana has to protect its consumers, and instead contends without real evidence that the state is seeking to “regulate U.S. relations with China.” It is true that TikTok is a subsidiary of a Chinese corporation, but the law does not affect foreign relations or impose a burden on China — it only regulates the app’s operations in Montana to protect Montanans’ privacy — unless, as the brief states, “TikTok is arguing that to regulate TikTok is to regulate China.”

Despite the company’s allegations that Montana’s law implicates First Amendment rights, the law is a content-neutral and narrowly tailored law that serves a significant government interest in furthering its consumer protection laws and content-neutral policy that “regulates one channel of internet expression but leaves all others untouched.”

The brief also thoroughly refutes TikTok’s arguments that TikTok is preempted by federal law and calls out TikTok for “playing ‘fast and loose with the courts.’” When President Trump attempted to regulate TikTok under the International Emergency Economic Power Act (IEEPA), it argued that the President didn’t have the authority to do so. Now, when the State of Montana is regulating TikTok, the company makes the claim it cannot do so because that power is reserved for the federal government.

“By previously interpreting the scope of the Executive’s authority narrowly, TikTok successfully evaded federal regulation under IEEPA; and now by asking this Court to interpret the scope of the Executive’s authority broadly, TikTok seeks to evade state regulation,” the brief states. “TikTok’s apparent position is it cannot be regulated—by anyone.”

Also noted in the brief is that 45 other states are actively investigating TikTok’s safety and data-harvesting features.