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Montana federal judge skeptical of state’s TikTok ban during court hearing

A federal district judge expressed doubts about Montana’s “paternalistic” ban on TikTok during a hearing Thursday in the first legal challenge to the only statewide ban on the video app very popular.

TikTok sued Montana in May, claiming the ban violated the First Amendment and was not supported by any evidence of legitimate national security risks. At the trial’s first hearing in Missoula on Thursday, state prosecutors argued the ban was vital to protect citizens from a Chinese app with 150 million users nationwide.

U.S. District Judge Donald W. Molloy, a 77-year-old Montana native appointed by President Bill Clinton in 1996, concluded the hearing after about an hour by saying he would soon offer a preliminary solution on the issue .

But Molloy also argued that the state failed to substantiate its claims that TikTok user data was “stolen” or misused.

“Your argument confuses me,” Molloy said. “You need to protect consumers from having their data stolen. But everyone on TikTok voluntarily gives their personal data. If they want to disclose this information, regardless of the platform, how can you protect it? »

He added: “It’s a kind of paternalistic argument. These people don’t know what they’re doing…so we have to say ‘Ban TikTok’ to prevent citizens from exercising certain freedoms or rights that they have.”

Montana Gov. Greg Gianforte (R) signed a law in May banning downloading the app starting next year, although experts question whether the ban is technically enforceable.

Montana can ban TikTok, but it probably can’t enforce it

The US government and nearly 40 states have banned the app from being used on government-owned devices, but Montana’s goes further by banning its use by the general public.

Montana said TikTok, owned by Chinese tech giant ByteDance, posed too high a risk of foreign surveillance and propaganda. Montana Attorney General Austin Knudsen (R) said in a statement at the time that the app was a “spying tool of the Chinese Communist Party that poses a threat to all Montanans.”

Molloy asked Montana lawyers, who were able to review TikTok’s documents as part of a discovery process, whether they found anything in those records to refute TikTok’s argument.

“We didn’t do it,” said state Solicitor General Christian B. Corrigan.

TikTok sued to overturn the ban in May, saying the “extraordinary and unprecedented” measure was based on “nothing more than unfounded speculation.” TikTok argued that the state “cites nothing” to support its claims about access to Chinese data and said the ban “ignores the reality that (TikTok) has not and will not share the US user data.

TikTok’s legal challenge came a week after a group of TikTok creators filed a lawsuit, arguing that the ban violated their right to free speech and would harm their livelihoods. In July, a group of Texas academics also sued their state over a ban on state-issued devices on constitutional grounds.

During Thursday’s hearing, Corrigan argued that the “flat ban” was necessary to protect Montanans until TikTok “ends its ties to China” and that it is ” the only application with a link to a hostile foreign power.”

But Molloy pressed the state to respond to the evidence it had to support its claims, questioning why Montana was alone in banning the app from the public. “Does this seem a little strange to you?” » he asked, comparing the state to someone in a marching band marching in step.

He also disputed Montana lawyers’ argument that the ban was necessary to protect residents’ data privacy, saying it was “totally inconsistent” with statements by Knudsen and state lawmakers that the sole purpose of the ban was to “teach China a lesson.” »

“Everyone on TikTok is voluntarily giving them information that the state is concerned about,” Molloy said. “Have TikTok officials not submitted significant affidavits, under threat of perjury, that they are not doing the very things the state is concerned about?”

As States Ban TikTok on Government Devices, Evidence of Damage Is Thin

Molloy also pressed TikTok’s lawyers on legal and technical issues, including whether the state needed to have evidence for the ban to be valid.

“Is there any prohibition against a lawmaker passing legislation that may have no factual basis but is simply an opinion of law enforcement or another entity? » said Molloy. “Do they actually have to have facts to legislate, or are they free to do whatever they want if it’s consistent with… the Constitution?” »

TikTok’s lawyers have cited previous legal rejections, including regulations targeting violent video games, in arguing that the state must have some evidence on which to base a law regulating free speech.

Molloy, a former Navy lieutenant, is perhaps best known for moving to overturn Fish and Wildlife Service officials who returned wolves in Montana and Idaho to the endangered species list.


Washington

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