Montana’s Governor’s Changes To TikTok Ban Bill Would Ban All Social Media Entirely
We've already talked about Montana's extraordinarily unconstitutional ban TikTok" bill that raises a huge number of constitutional issues. Lots of individuals and organizations pointed this out to governor Greg Gianforte (who came to office as a former tech exec of an internet company, and was supposed to be someone who understand the internet).
Gianforte has now sent back to the legislature what's known as an amendatory veto" that basically is alternative draft language that he would approve if the legislature amends the original bill. In theory, the likely reasoning behind the alternative language was the recognition that the original bill, which called out TikTok by name (including spelling it wrong in the title) would be immediately deemed unconstitutional as a bill of attainder targeting a single company for punishment.
In theory... that's an improvement. In reality, as pointed out by 1st Amendment lawyer Ari Cohn, Gianforte's draft language would accidentally ban all social media in the state of Montana, because of bad drafting. As Ari points out, the new draft targets any social media application" that allows for the collection of personal information or data" and allows for the personal information or data to be provided to a foreign adversary or a person or entity located within a country designated as a foreign adversary."
Now, some might think that sounds reasonable, but the details here matter. And the details reveal that EVERY social media network collects such information and provides it to people located in countries designated as a foreign adversary. And that's because personal information" is a very broad term, as is provided."
Surely," you might think, that just covers the data platforms amass by monitoring and tracking us, right?"
Perhaps not. The bill doesn't define the term, so who knows what it means in their heads. But we have an idea of what it means out in the real (online) world, by way of the regulations implementing the Children's Online Privacy Protection Act (COPPA). Those regulations include in the definition of personal information" things like:
- First and last name
- Online contact information
- A screen or user name where it functions in the same manner as online contact information
In other words, the types of information that accompany virtually every piece of content posted on social media. If a platform allows that kind of information to be provided to any foreign adversary or a person or entity located within a foreign adversary, it is banned from Montana.
Do you know who might be persons located within a country designated as a foreign adversary? Users. Users who are provided the kinds of personal information" that are inherent in the very concept of social media.
So, effectively, the bill would ban any social media company that allows any user in China, Russia, Iran, or Cuba to see content from a Montana user (and this is a generous reading, nothing in the bill seems to require that the data/information shared be from a Montana resident). On top of it, each time a user from one of those countries accesses content, platforms would be subject to a $10,000 fine.
Do you know which platforms allow people in those countries to access content posted in the United States? All of them.
Congratulations, Montana Governor Greg Gianforte. You just managed to accidentally ban all social media for Montanans. Good work.
Drafting legislation is hard. But, these kinds of mistakes are avoidable if you're actually willing to talk to experts first - something that Montana law makers appear to have avoided entirely throughout this process.