Montana’s law to ban TikTok is an overreach

Despite security concerns, the idea the state can manipulate a free commercial market with a ban is troubling

Call it Big Sky v. Big Spy. As Montana regulators and TikTok lawyers prepare to square off in court over the state’s banning of the social-media platform on grounds it is a spying mechanism for the Chinese government, there is more at stake than U.S. national security.

The case will test how far government can – and should – go to bend and perhaps break constitutional rights and freedoms to protect people from their own lack of personal responsibility – and in some cases, stupidity. And it raises this question: Which is the bigger threat, foreign spying or domestic overreach?

At the heart of the case is the scope of the new law, which doesn’t simply ban the use of TikTok within state lines, it seeks to prohibit the downloading of the TikTok app, which in effect forces companies such as Apple to stop making the app available to Montana customers. This is unlike a government agency or a company banning the use of the platform by its employees, which is a policy within a specific work force and not a widespread commercial ban.

Whether enforcing the new Montana law is even possible – and whether you believe concerns about TikTok as a spying platform are warranted – the idea that government can assume the power to block such transactions and manipulate a free commercial market is in itself troubling, regardless of the stated higher purpose of protecting democracy and the public good.

Yes, there is ample evidence to suggest TikTok is captive to the Chinese government and does not take users’ privacy as seriously as it should. The platform is also addictive for more than 150 million U.S. users and is, as a result, an enormously powerful platform for good and evil.

If you have kids, you know that to be true. The legal arguments aside, it is sad commentary that government needs to step in – and step on rights and freedoms – because we can’t control our own need for a social-media fix.

In one of the many twists to the Montana case, that’s what TikTok’s lawsuit against the state keys on. In simple terms, the company argues the Montana law violates the U.S. Constitution’s First Amendment rights governing free speech and is, in effect, suppression of expression and even censorship. The suit, filed in federal court, also claims national security is a federal issue and Montana does not have the jurisdiction to enact such as law.

The irony is a bit thick when the company accused of being a cipher for a government known for suppressing free speech is using it as a legal beachhead. It is also ironic that, in TikTok’s own defence against claims it is a spying mechanism, the platform has taken steps that suggest the claims are valid.

The company recently said it fired some China-based employees who were collecting data on U.S. journalists who wrote about company leaks. It also announced a US$1.5-billion data security initiative with U.S. technology giant Oracle, called Project Texas, which will host all data of U.S. subscribers actually in the United States. Why would TikTok go to such lengths – and at such expense – if it were squeaky clean?

But by no means has TikTok cornered the market on irony in this case. In enacting the law, Montana, a Republican stronghold, has reached for a solution typical of the left – anti-business, anti-free-market overregulation. The apparent ideological contradiction reflects just how bizarre the issue has become.

Frankly, some observers are curious as to why the U.S. hasn’t been smarter about turning the enormous popularity of TikTok back on China, using it as a platform to spread disinformation against Beijing. It’s an old trick from the propaganda campaigns of the Second World War – to beat ’em, baffle ’em with BS.

As for personal responsibility, reasonable thinkers might suggest that people who have jobs that deal in sensitive information, or average users who simply don’t want their personal information put at risk, should simply stop subscribing to the platform. Go cold turkey, break the addiction and make court battles such as TikTok v. Montana unnecessary.

What’s left is a blizzard of nonsense postings of water-skiing squirrels, dogs skipping rope and videos chronicling in breathtaking detail what people had for breakfast this morning. If the Chinese government still believes there is strategic value in that content and the personal information of the users behind it, let them have it.

But spy-er beware. There is no encrypted intelligence behind the inanity. The vast majority of TikTok content and users who post it really are that mindless.