Montana’s TikTok Ban Won’t Work
Montana is on its way to becoming the first state to ban TikTok, which, according to one computer-security expert, is a little like saying it’s the first state to allow humans to flap their arms and fly around in the clouds without an airplane. The move is notable, but that doesn’t make it feasible.
“Why is a law saying that you can fly stupid? Because you can’t fly,” Bruce Schneier, a fellow and lecturer at Harvard’s Kennedy School, explained to me. “Why can’t you fly? Because you’re not built for flying.” Just like the human body is not designed to keep itself airborne, Schneier told me, the American internet is not constructed in such a way that a ban like the one passed in Montana last Friday could be realistically implemented.
And yet that bill is just one signature, or five days, away from becoming law. The legislation targets app stores and TikTok itself, rather than individuals, imposing a $10,000 daily fine for each time a user “accesses tiktok, is offered the ability to access tiktok, or is offered the ability to download tiktok.” The fate of the proposal, which would take effect in January 2024, now lies with Montana’s Republican governor, Greg Gianforte, who can veto it, sign it, or do nothing—and if he does nothing, it eventually becomes law automatically. A representative for Gianforte did not respond to an email request for comment on what he plans to do.
But it may not matter. Experts I talked with viewed the law as more bluster than substance—a nonsense bill, if you will, best understood as a show of grievance rather than serious, practical legislation. Some doubted that we will actually ever see a world in which driving from Wyoming to Montana means watching TikTok and all its dancing teens suddenly evaporate from one’s app store. But that doesn’t mean the bill’s attempted implementation won’t have real-world consequences, and it certainly marks an escalation in the ongoing political fight over the app’s future.
[Read: TikTok is too popular to ban]
In a statement, TikTok challenged the legislation’s validity. “The bill’s champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bill’s constitutionality will be decided by the courts,” Brooke Oberwetter, a TikTok spokesperson, said in a statement. Google and Apple, which own the biggest mobile-app stores, did not respond to requests for comment, but, according to The New York Times, a trade group funded by the companies has said that they lack the ability to block downloads in a single state.
“I rarely see a bill that is this technically stupid,” Tarah Wheeler, the CEO of the cybersecurity firm Red Queen Dynamics and a senior fellow at the Council on Foreign Relations, told me. The internet does not recognize the state of Montana, Wheeler explained, making it impossible to geofence in any meaningful, legally enforceable way. Everyone has an IP address that ties their internet connection to a given location, but these are imprecise, and easily thwarted by a VPN—not the kind of thing that definitively proves a digital act took place at a given physical location. The address is also determined by your internet-service provider, not the company behind your phone’s app store, and can change dynamically for a variety of reasons. (My editor is in New York, and when he checked the location associated with his IP address this morning, it showed up in Virginia.)
There are ways for your location to be pegged to your digital identity. Many data sources on your phone—GPS signals, Wi-Fi and Bluetooth networks, and the pinging of nearby cell towers—can be used to estimate your whereabouts, sometimes with startling precision. Different shows and movies are offered by streaming platforms such as Netflix depending on which country you’re in (an instance where the general locations offered by IP addresses are precise enough), and gambling sites will lock you out if you manually enter a zip code where their services are illegal. But none of these examples demonstrate how an app store could prevent users in a given state from accessing one specific app.
Either the legislators passing the bill simply didn’t understand the technology, Wheeler argued, or they broke an old military adage: “Don’t give an order you know can’t be followed.” To actually implement something like this effectively—feel free to enjoy the irony here—America would need to have an internet structured and governed more like China’s, with a mass-surveillance infrastructure built in.
Even if there were a way to build a perfect digital fence around the state of Montana and keep TikTok out of it, legislators may still lack the authority to do what they’re aiming for here. This bill, should it become law, is likely to be challenged in the courts on constitutional grounds. “I know it’s ridiculous to say that 15-year-olds lip-synching is protected speech, but that’s the Constitution,” James Andrew Lewis, the director of the Strategic Technologies Program at the Center for Strategic and International Studies, told me.
Still, a nonsense bill could have political ramifications if it forces judges to rule on it and set legal precedents in the process. Say the Montana law goes through and is indeed challenged by a lawsuit. If such a lawsuit makes its way to the Supreme Court, it will join a number of cases currently sitting before the bench that, depending on how the justices decide them, “could fundamentally rewrite the internet itself,” Rose Jackson, the director of the Atlantic Council’s Democracy + Tech Initiative, told me.
[Read: The Supreme Court actually understands the internet]
Jackson sees the Montana bill as the continuation of a larger trend, wherein states are trying to fill a void created by inaction at the federal level when it comes to setting standards for “how we govern our technology ecosystem.” Angst is building up, triggering good-faith, bad-faith, and regardless-of-faith-questionable attempts to fill the gap. Discussions of a TikTok ban, both in Montana and nationally, trouble Jackson because of how much they undermine our current conception of an open web. Usually, the U.S. criticizes governments who take this approach to the internet. “It plays into what to this point has been a Chinese interest in reopening debate around a shared, open, interoperable, free, secure internet,” she said.
The anxieties exposed by all this hand-wringing over TikTok, as many have pointed out, are bigger than just one company. The case raises fundamental questions around privacy, data collection, algorithmic transparency, and national security, as well as the government’s role in regulating them. As Jackson noted, those concerned about the data TikTok is collecting on Americans should also be concerned that the Chinese government “could just go buy much of that same information legally from data brokers,” who in turn obtained it from U.S. companies. Privacy advocates have pushed for the country to consider comprehensive legislation rather than target TikTok specifically. Or what one might call a no-nonsense approach.