TikTok Photo: VCG

 

TikTok filed a federal lawsuit against the US state of Montana on Monday (US time) after the state became the first to pass a bill last week in an attempt to ban the app from operating in the state.

The suit was widely expected because the statewide ban in Montana is essentially targeting a specific Chinese firm for political reasons at the cost of trampling on local residents' right to free speech. The legal challenge indicates that other states, if they follow suit, will face hurdles, experts told the Global Times.

"We are challenging Montana's unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana. We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts," TikTok said in a statement.

The ban violates users' First Amendment rights, the lawsuit claims, and "intrudes upon matters of exclusive federal concern." Lawyers for TikTok argue that the national security threat raised by officials in Montana is not something that state officials can attempt to regulate, since foreign affairs and national security matters are federal issues.

"The state has enacted these extraordinary and unprecedented measures based on nothing more than unfounded speculation," the lawsuit said, referring to the state's concerns that the Chinese government could access Americans' data.

The lawsuit seeks to overturn the Montana ban, which will take effect in January 2024.

The witch-hunting behavior of the US government targeting TikTok and other firms with a Chinese background has become a political norm, which has nothing to do with national security or data security but a cold-war mindset, Chinese officials and experts said.

The Chinese Foreign Ministry on Tuesday blasted the US' unreasonable crackdown on TikTok, urging the US to respect the market economy and fair competition rules, stop its unreasonable crackdown on foreign firms, and provide an open, fair and non-discriminatory environment. 

Montana Governor Greg Gianforte on Wednesday signed a bill, which was passed by the state's legislature last month, to ban TikTok from operating in the state to "protect" residents from alleged intelligence gathering by China.

In response, a spokesperson of TikTok said: "Governor Gianforte has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state."

Just hours after the ban was signed into law, law firm Davis Wright Tremaine filed the lawsuit in Montana's federal trial court on behalf of five TikTok creators who live in the state and use the app.

"The latest complaint filed by TikTok was widely expected," a senior lawyer at Beijing DHH Law Firm, who asked to remain anonymous, told the Global Times.
The Montana bill has a major flaw because it lacks a factual basis for concerns about user data and other aspects, and the ban could severely restrict the free speech of American citizens, directly violating the First Amendment, according to the lawyer.

"I think there are high hopes for TikTok to win the lawsuit against Montana because freedom of speech should be respected in any country, and the basic rights of citizens should not be sacrificed because of ideological differences," Hao Junbo, a lawyer with the HAO Law Firm in Beijing, told the Global Times on Tuesday.

"The legal challenge to the Montana ban is a warning for other states that if they follow suit, they will face multiple hurdles, and Chinese firms will appropriately use the legal system to protect themselves," Hao said.

Even if the Montana law is not overturned, it has no practical meaning in the internet era because "you cannot have control over people about having access to TikTok, which is impossible in operation," Xiang Ligang, a veteran technology expert, told the Global Times on Tuesday.

"It is, from the very beginning, US bullying and hegemony, which is doomed to fail, because it violates normal market operations," Xiang said.
It is not the first time that TikTok has taken authorities in the US to court. 

In August 2020, TikTok sued the US government, accusing the former Trump administration of depriving it of due process when Trump used his emergency economic powers to issue an executive order aiming to block the app from operating in the country.

Earlier that month, Trump issued twin executive orders banning transactions with TikTok and Chinese social media app WeChat within 45 days. A week later, he issued a separate executive order giving ByteDance 90 days to divest its American assets and any data that TikTok had gathered in the US.

The lawsuit ended with a White House defeat after US District Judge Carl Nichols in Washington fully blocked the Trump ban in December 2020, citing that Trump had overstepped his authority. 

Calls to ban TikTok at a nationwide level have not advanced in the US Congress after TikTok CEO Shou Zi Chew was grilled in March by a committee about whether the Chinese government could access user data.