On Wednesday, Montana became the first U.S. state to make it illegal for residents to use the Chinese-owned social media platform TikTok in the state. By Friday, the state was already facing its first legal challenge of the ban. Five people who use the app filed a lawsuit. They argue that the law is an unconstitutional violation of free speech rights.

When Montana’s Republican governor Greg Gianforte signed the bill into law, he expected a legal fight would follow. The law also faces a barrage of questions over whether the state can even enforce it. The ban isn’t scheduled to take effect until January 1, 2024.

Some bans prohibiting use of the video-sharing app on government-issued devices already exist. Nearly half the states and the federal government have such prohibitions in place. But the new rules in Montana will have more far-reaching effects.

About 200,000 TikTok users live in Montana. And about 6,000 businesses use the platform for marketing. The ban could create a hardship for those businesses to advertise products and services.

Why is Montana banning TikTok?

Supporters of the law claim that the Chinese government can harvest data from U.S. users. They say China could also use the platform to push pro-Beijing propaganda. China could try to manipulate public opinion.

Those concerns align with arguments made by a bipartisan (made of both Democrats and Republicans) group of lawmakers in the U.S. Senate. The heads of the FBI and CIA concur. All those entities have stated that TikTok could pose a national security threat. Its parent company is Beijing-based ByteDance. It operates under Chinese—not American—law. China’s 2017 national intelligence law compels companies to cooperate with the Chinese government for intelligence work.

What does the legal challenge argue?

Five plaintiffs—all content creators on TikTok from Montana—argue the law is an unconstitutional violation of free speech rights. They also contend the state doesn’t have authority over matters of national security.

“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.

The people suing include one with a swimwear business, one who connects with military veterans, one who shares videos about ranch life, another who shares her outdoor adventures, and one who shares humorous videos.

Emily Flower is a spokeswoman for the Montana Department of Justice. She says the state expected a legal challenge and is “fully prepared to defend the law.”

TikTok representative Brooke Oberwetter declined to comment on the lawsuit. She also declined to say whether the company helped coordinate the legal complaint.

How will the ban work?

The law prohibits downloads of TikTok in the state. It will impose a fine of $10,000 per day on any “entity”—such as an app store—for each time someone accesses TikTok, “is offered the ability” to access it, or downloads the app. Penalties would not apply to individual users. But Apple and Google would be liable for violations. Those companies operate app stores on Apple and Android devices.

The statewide ban would be void if the social media platform is sold to a company that is not based in “any country designated as a foreign adversary” by the federal government.

A spokesperson for Montana Attorney General Austin Knudsen’s office says different companies use different methods for compliance. It’s up to them “to not allow their apps to work in Montana and other states where they are not legal.”

Is the ban enforceable?

Cybersecurity experts say that it will be extremely difficult to enforce the law.

The United States doesn’t have the type of control countries like China have on what citizens access on the web. Additionally, internet service providers are out of the picture. Before the Montana law passed, lawmakers rewrote portions of the bill. It now lets service providers off the hook.

Apple and Google have not spoken out against the law. But a representative for TechNet, a group of businesses operating digital media services, claims app stores don’t have the ability to limit access to apps in different states. That makes it impossible to prevent TikTok from being downloaded in Montana. The group says the responsibility lands on an app to determine where it can operate, not an app store.

Another cybersecurity expert agrees. Oded Vanunu says TikTok can “adjust the setting based on the geographical location or IP addresses” of its users.

When users allow TikTok to collect location information, the app can track a person to at least a square mile from that person’s actual location. Even if the location feature is disabled, TikTok can often still collect approximate location information from the network. That can include region, city, or zip code.

The prudent sees danger and hides himself, but the simple go on and suffer for it. — Proverbs 22:3

(Montana Governor Greg Gianforte signs a law banning TikTok in the state on May 17, 2023, in Helena, Montana. That law made Montana the first state in the United States to completely ban TikTok. Garrett Turner/Montana Governor's Office via AP)