Experts have ‘extreme doubts’ about viability & enforceability of Montana’s TikTok ban

The bill, slated to go into effect in January 2024, prohibits TikTok from operating in the state and requires mobile app stores to make the app unavailable to residents of Montana.

Gianforte tweeted that the decision aims to “protect Montanans’ personal and private data from the Chinese Communist Party.” The allegation that TikTok user data is being accessed by the Chinese government – via parent company ByteDance – is a concern that’s been voiced widely among policymakers, though there is no substantial evidence to support the claim.

If put into effect, the new bill would prevent consumers in Montana from accessing the app, impede TikTok creators’ and influencers’ ability to monetize their content and disrupt brand partnerships.

The decision comes at a time when debates over TikTok are reaching a fever pitch in the US. In March, TikTok CEO Shou Zi Chew appeared before Congress, where he was grilled by lawmakers on data privacy, content moderation and mental health risks to teenage users.

But industry analysts are highly skeptical of the possibility that the ban will be enacted come January.

Legal challenges

“I have extreme doubts about the viability of this ban, both from a legal perspective and an enforcement perspective,” says Mike Allton, a social media industry expert and the head of strategic partnerships at social media management platform Agorapulse.

On the legal side of the equation, Montana is already being slapped with lawsuits over the bill. Creators themselves are leading the charge. On Wednesday evening, a group of five TikTok creators sued to overturn the bill, alleging that it violates their First Amendment rights. “Montana can no more ban its residents from viewing or posting to TikTok than it could ban The Wall Street Journal because of who owns it or the ideas it publishes,” the complaint says.

Allton predicts that larger-scale legal challenges are on their way. “I fully expect an issue such as app access to be contested beyond the state level and to receive both national and global attention,” he says.

He suggests the grounds for legal complaints could also extend beyond the First Amendment. “I expect a solid argument to be waged against an individual state’s right to limit access since it would seem to be in direct violation of [The Constitution’s] Commerce Clause, which puts such authority squarely under Congress.”

Ultimately, in Allton’s view, access to TikTok in the US will only really come into question if Congress cracks down on the app, considering that regulations at the state and local levels are likely to be shot down in court at this point.

The enforcement challenges

Things are similarly murky from an enforcement perspective. Potential technical hurdles are an especially salient consideration. For instance, says Matt Navarra, a leading industry analyst and social media consultant, “Are [regulators] going to be able to persuade Apple and Google to stop it at a device level? Will they approach internet service providers to intervene at all? Or will it just be easily circumvented by use of a VPN or other kinds of typical ways to work around blocks like this? Is it going to affect people that already have the app… will it remove it from their device? There are lots of unanswered questions, but lots of reasons why it’s highly likely that something will scupper Montana’s attempts to ban the app.”

Due to the prevalence of both legal and enforcement challenges, experts are generally doubtful that the Montana bill will go into effect in January – or affect users and creators in any meaningful way. “The likely real impact on creators could be zero,” says Navarra.

What if Montana’s ban does go into effect?

In the unlikely event that the bill is enacted, of course, the calculus is different. “If it does come into play, then, undoubtedly, to some degree, it’s going to impact the ability of creators to monetize their creative talents,” Navarra says.

Others echo the sentiment. “It’s hard to overstate the impact that TikTok has had on the creator economy,” says Jasmine Enberg, a principal analyst at Insider Intelligence’s eMarketer specializing in social media. Though she acknowledges that the app doesn’t see as much influencer marketing investment as platforms like YouTube and Instagram, Enberg says that TikTok has nonetheless “become the top platform for up-and-coming creators to build their audiences, which has historically been difficult to do on rival platforms.”

As a result, Enberg says, “a ban would certainly be a blow to many creators in Montana who rely on TikTok.”

Of course, by extension, brands that partner with Montana-based creators would lose out on audience reach and potential returns.

But like Allton and Navarra, Enberg believes the bill’s viability is dubious. “Montana is a small state, and unless [this bill] goes into effect and is enforceable, it’s not going to have a major impact.”

A migration to Instagram and YouTube?

Rather than a state-level ban going into effect, a more probable threat to TikTok and its network of users and creators is that other states will be inspired to advance similar bills, Enberg says. Another possible outcome: The growing sense of a TikTok time bomb could “cause creators and brands to start migrating to other platforms more quickly.”

Navarra similarly suggests that in the case that Montana’s bill is enacted or that other proposed bans gain significant momentum, many creators who’ve found success on TikTok will simply shift over to comparable products, like YouTube Shorts and Instagram Reels. He jokes that migration of that sort would be “appreciated… by Mark Zuckerberg and the people at Google for getting that additional audience.”

Nonetheless, his overall outlook on the Montana ban’s prospects remains one of skepticism. “For creators, the chances are that this is not going to happen. It’s a lot of political showboating and theatrics rather than a meaningful ban.”

Ultimately, Navarra suggests, the debates about TikTok playing out on the national stage should be “far more important” to creators and users at this stage than any one-off state ban .

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