They have argued the bill may run afoul of the First Amendment by limiting users’ rights to access the platform, echoing issues TikTok raised in a lawsuit challenging the law on Monday.
It’s a new wrinkle in the divisive political debate over the popular video-sharing app, which lawmakers across the aisle have accused of threatening national security, without coalescing around a single plan to tackle its alleged risks.
Montana Gov. Greg Gianforte (R) on Wednesday signed a law banning the sale and use of TikTok in the state, making it the first in the nation to impose such a crackdown. Dozens of states have prohibited government employees from downloading or accessing the app on state-owned devices, but Montana was the first to ban it entirely for consumers.
“Together, we will defend the State of Montana and its people against threats to our security, privacy, and way of life,” Gianforte said in a statement last week.
In the days since, however, several federal policymakers have suggested the Montana law is unlikely to survive a legal challenge on constitutional grounds.
Sen. Mark R. Warner (D-Va.), who has proposed legislation to give the federal government more power to ban or restrict foreign-owned apps such as TikTok, said in a statement Monday that in lieu of federal legislation, “states across the country have had to take matters into their own hands in an attempt to counter the national security threat posed by TikTok.”
He added, “Unfortunately, I fear we will once again see federal courts overturn more ad hoc efforts on 1st Amendment grounds.” Warner’s bipartisan measure, called the RESTRICT Act, does not explicitly target TikTok but could lead to the app being banned alongside others.
Sen. Rand Paul (R-Ky.), who called efforts to ban TikTok at the federal level unconstitutional, told reporters last week he expects the Montana law to be struck down.
“The Supreme Court will rule it unconstitutional if it makes it to the court. The First Amendment is pretty explicit that … government can’t restrict people’s constitutionally protected speech. Last I looked, dancing and cat videos were protected speech,” Paul, a libertarian, said on Thursday.
Rep. Dean Phillips (D-Minn.) also said the law “almost certainly violates the 1st Amendment,” adding in a tweet Wednesday“Imagine banning things that would actually keep people safe and didn’t violate any amendments.” (Members of the Congressional Progressive Caucus have also rebuked efforts to ban TikTok.)
It’s rare in Washington to see such a wide range of lawmakers unite to call into question the legality of a state law, particularly on an issue where there’s otherwise broad bipartisan concern. (The law, as my colleague Drew Harwell wrotealso faces major hurdles to implementation.)
But some pushing for federal legislation to effectively ban the app have countered the remarks or offered praise for the legislators in Montana.
Rep. Michael McCaul (R-Tex.) and Sen. Josh Hawley (R-Mo.):
CHM @RepMcCaul: “TikTok is a spy balloon for the CCP on your phone. I commend the state of Montana for banning this natl sec threat & protecting Montanans’ private data & information from the malign influence of the CCP.” https://t.co/mIHWv2Mth9
— House Foreign Affairs Committee Majority (@HouseForeignGOP) May 18, 2023
Lawmakers argue TikTok, owned by Beijing-based tech giant ByteDance, could expose U.S. user data to the Chinese government. TikTok has said it has never and would never share U.S. data with China.
TikTok filed a lawsuit challenging the Montana law on Monday, officially bringing its battle with the state into the courtroom.
In its complaint, the company cited many of the same concerns as some officials in Washington.
TikTok argued the bill infringes not only its own constitutional rights but also that of its users, who it said would be deprived of a forum to speak openly online under the law. TikTok also argued that it’s a “bill of attainder” — a measure unconstitutionally outlawing a specific company.
“We are challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana,” TikTok spokesperson Brooke Oberwetter said in a statement.
Montana officials did not immediately respond to The Post’s requests for comment Monday.
A group of TikTok creators filed a separate challenge against the law last week, as Politico reported.
Biden nominates Gomez to FCC post in bid to break 2-2 split
President Biden on Monday nominated veteran telecom lawyer anna gomez to serve as the third Democratic commissioner on the Federal Communications Commission (FCC), your newsletter host reports.
A Gomez confirmation would break the commission’s 2-2 tie to give it the Democratic majority needed to carry out the Biden administration’s telecom policy priorities, like restoring net neutrality. The agency during the Trump administration repealed net neutrality rules that prohibited internet service providers from blocking or throttling internet traffic.
Gomez was previously deputy administrator of the National Telecommunications and Information Administration in the Commerce Department and served for 12 years at the FCC. She is currently a communications policy adviser at the State Department.
gigi sonwho was previously nominated to the FCC post, withdrew after a 16-month lobbying battle that blocked her appointment and opened her up to personal attacks about her sexual orientation, social media activity and political views. Sohn would have been the FCC’s first openly gay commissioner.
E.U.’s Meta fine could have broader implications for U.S. businesses, experts say
The European Union’s record fine imposed on Meta could have broader implications for U.S. businesses, our colleagues Naomi Nix, Annabelle Timsit and Cat Zakrzewski report.
The E.U. on Monday fined the Facebook parent company $1.3 billion after determining that it broke General Data Protection Regulation rules through transferring user data to the United States from Europe, and Meta was ordered to suspend all transfers of personal data belonging to E.U. and European Economic Area users.
“Many other companies rely on the same standard contractual clauses that Facebook relied on,” said Peter Swirea Georgia Institute of Technology professor who served in both the Obama and Clinton administrations. “Today’s decision calls into question whether other companies have sufficient safeguards in place when they use these contracts,” Swire told our colleagues.
President Biden last year signed an executive order that aims to ensure that E.U. citizens’ data will be kept safe when transmitted into the United States, though the details are being worked out with E.U. counterparts.
U.S. has ‘serious concerns’ about China censure of Micron products
The U.S. State Department has “serious concerns” about China’s decision to rebuke products made by U.S.-based memory chipmaker Micron, Eric Martin and Iain Marlow report for Bloomberg News.
The move is inconsistent with China’s assertion “that it is open for business and committed to a transparent regulatory framework,” State Department spokesman Matthew Miller told reporters in a Monday briefing, adding that the Commerce Department is in touch with China on the matter.
Beijing on Sunday advised critical infrastructure operators to halt purchases of Micron, citing “serious network security risks” that pose a hazard to China’s national security.
The statement from the Cyberspace Administration of China comes as the United States, Europe and Japan work to reduce China’s access to advanced chipmaking tools and other technologies. China began investigating Micron in April after Japan joined the United States to impose chip restrictions on the country.
The United States is preparing for additional tech investment restrictions against China with support from the Group of Seven nations, Bloomberg News previously reported.
Twitter reacts to Meta’s E.U. fine. MLex reporter Sam Clark:
Worth looking out for some of Meta’s other appeals against Irish enforcement, e.g. the WhatsApp 225 million euro fine. If it succeeds there – one of its arguments being that due process wasn’t followed – that might spell bad news for the EDPB/DPC in this case.
— Sam Clark (@sgclark92) May 22, 2023
Access Now’s Estelle Masse:
Ordering an immediate deletion of this data would have been a strong signal from data protection authorities to both Meta and all tech companies.
The level of the fine is a great news but the overall decision is bittersweet for data rights.
— Estelle M. (@EstelMP) May 22, 2023
- NTIA head Alan Davidson testifies to the House Energy and Commerce Committee as it considers several broadband and spectrum bills at 10 a.m.
- Microsoft CEO Satya Nadella and OpenAI President and co-founder Greg Brockman speak at the Microsoft Build conference in Seattle beginning at 12 p.m.
- New America holds an event on data interoperability at 12 p.m.
- FTC Commissioner Alvaro Bedoya speaks at the agency’s “Fixing the Food Gap: Antitrust Action and Grassroots Solutions to Check Dollar Stores and Rebuild Local Grocery Stores” event at 1 p.m.
- Stanford’s Cyber Policy Center holds a discussion titled “AI: Reporting on the New Battleground of Disinformation, Election Integrity, and Governance” at 3 p.m.
- Treasury Secretary Janet L. Yellen and Twitter’s Elon Musk speak at the Wall Street Journal’s CEO Council Summit in London beginning at 3 p.m. local time.
- TikTok CEO Shou Zi Chew speaks at Bloomberg News’s Qatar Economic Forum in Doha beginning at 10 a.m. local time.
