Montana’s Governor’s Changes To TikTok Ban Bill Would Ban All Social Media Entirely
from the legislation-is-hard,-culture-wars-are-easy dept
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.
Filed Under: greg gianforte, montana, social media, tiktok ban
Companies: tiktok
Comments on “Montana’s Governor’s Changes To TikTok Ban Bill Would Ban All Social Media Entirely”
Experts?
By definition, Republicans cannot talk to experts, because they already are the experts. Just ask them!
Re:
While I know you were being sarcastic: Mike wasn’t referring to experts in the field assholery (one of the few types of experts who are never worth consulting)
Accidentally?
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Its Been Done Before
This sounds similar to the EU privacy shield agreement. Privacy litigators in Europe have succeeded in preventing the legal transfer of user data to the U.S. Preventing the legal transfer of data from the U.S. to China sounds even more reasonable.
Re:
PAY ATTENTION!
This isn’t “preventing the legal transfer of data from the US to China”. This is “preventing the legal transfer of data we didn’t intend to restrict, from the US to the US or anywhere else.”
Now, write your lines until the end of class: “I will finish reading the article before commenting.”
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Re: Re: Re:
You don’t know what data was intended to be restricted. As with the EU privacy shield agreement, even they don’t know, and it requires court litigation to figure it out. And furthermore, there’s often room under U.S. law for the executive branch to make that determination if it isn’t specified as a matter of policy. They’ll figure it out.
But even if all data needs to be cutoff to foreign adversaries, that’s still awesome. Everyone keeps talking about wanting privacy laws. Now is the time to force big tech companies to choose a jurisdiction.
Re: Re: Re:
Duh. No one knows what data is intended to be restricted. Because dumb people write bad legislation, and write it poorly.
Kind of the whole point of the article.
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Re: Re: Re:2 Re:
And also my point as well. Social media sites weren’t banned across Europe, even after the data sharing agreements were found unconstitutional. It’s very unlikely that social media companies will be prosecuted for selling data to foreign countries until after some details are clarified, thus debunking the article headline.
Re:
Which Internet service did those European laws ban? That right none of them so long as the kept the user data in Europe.
Scotusbait
There are just too many of these histrionic bills written to attribute to lawmakers’ stupidity or derangement.
It’s not random.
GOP lawmakers are flooding the zone with shit laws like this in the hopes of getting a favorable ruling from a Supreme Court now in their pocket.
This is the kind of law that is both overly broad in application and forces courts to make it work. Naturally, it will make its way through the appeals process. The hope is that the U.S. Supreme Court will give it a hearing and uphold it on textual grounds.
Re:
There are doubts that would fly even with this Supreme Court, especially considering that even the conservatives on the court have given favorable rulings in cases where the First Amendment applies, as it does here. The Montana Supreme Court and the Fifth Circuit likely would strike down the revised version for the same reason. Conservatives, much like Trump, think that the Supreme Court is a genie that’ll grant them every wish they throw at it, but we’ve seen that’s not always the case, even with a stacked six-conservative majority. (Trump learned this firsthand when it ruled against stealing the 2020 election for him… after Biden was already inaugurated.)
Interestingly enough, NetChoice (which represents TikTok) sent them a letter a couple of weeks back, asking Gianforte to veto the bill. Unfortunately, the Montana government’s probably still going to get sued if the law, as rewritten, is passed with the revised language. BTW, right-wingers probably won’t like it if the revised bill inadvertently deplatforms them, since Facebook, Twitter, Gab, Truth Social and any platform they regularly use could easily be blocked under the overly broad language.
(NetChoice represents Meta [owner of Facebook and Instagram], Twitter, Snap Inc. [owner of Snapchat] and Google [owner of YouTube], too, and has a team of lawyers that is suing other states over Internet regulations that likely infringe on the First Amendment and possibly other constitutional provisions, so…)
Re: Re:
*Unfortunately for Gianforte and Montana legislators (just to be clear)
Re: alec
Go ahead, google “American Legislative Exchange Council”, we will wait. And I think you may understand why it is that so many states’ legislatures seem to come up with these stupid ideas at about the same time.
Remember, these meetings are not just paid vacations. They are industry-funded lobbying opportunies. Carefully structured, so it may not be necessary to disclose them, but check with your particular state’s laws and do not rely upon my speculation.
I thought we were past the trope of “Montana: We grow ’em big and dumb”. Looks like the Republicans decided to home run that and pull everyone back to their grassroot values.
Definition of Social Media
Is ChatGPT/OpenAI in this category?
I suspect some players would not like that.
Imagine if Bing was blocked.
Kill the internet
Might not be such a bad thing for social media to vanish.
maybe this is a good thing?
as to what ever this dim bulb is trying to get passed. he is writing it himself! and not letting some big corps. do it for him like most others do! so we at least have to give some credit for putting his bigboy pants on all by himself! since most politicians are NOT lawyers and have forgotten what that constitution thingy is! they should at least run there first draft by a real lawyer to see if it even passes the sniff test!
i have noticed that it real easy to tell if a politician wrote a bill themself or if it is a big corps. written bill. when done by big corps. it will have language that is one sided in there favor while stepping on everyone else! when one of these dim bulbs think they can pull up there bigboy pants all by themselves. it will be so full of errors that we think it was written by a fifth grader!
Umm…does the author of this paper realize he quoted a social media lobbyist?
Re:
So what did you find wrong with the particulars in the quote provided?
Feature, Not A Bug
You’re assuming this is a mistake, and while it probably is, you should consider the benefits.
Social media does not by its nature need to transcend borders. Nothing does. There has too long been an assumption that the internet acting as a global medium is a good thing.
The reality is people around the world do not share values or behaviors, and there is no real reason we all need to interact with each other or that the default has to be open door sharing of information.
Social media in the United States has largely been an unmitigated failure which only has only enriched a few early movers who themselves contributed very little, did not think about the technology they were deploying, and sought only financial gain.
Social media can and should be locked down. It’s only a shame this type of legislation isn’t coming from the more intelligent and progressive states like NY and CA.
Societies like the US are highly vulnerable to two level game theory attacks, and without clear agreements between allied entities, we need to change the way we look at communication on the internet. There is a difference between freedom of speech, and freedom of broadcast as well as anonymous speech and anonymous communication between untrusted adversaries.
Most all social media should be shut down or highly regulated. And any foreign interaction heavily monitored and restricted. This is obvious under the U.S. Constitution and it always befuddles me when people think they are freely allowed to communicate internationally without monitoring or restriction. Just because it is easy does not mean we are playing way outside the normal sand box of what’s allowed or should be allowed.
The internet was not designed to prevent this kind of manipulation by bad actors. Since bad actors excuse in the world, the option is either to eliminate the bad actors or change the way the internet functions as we know it.
Wow
Making the average iq jump a few dozen points
Tik Tok Banned
It’s important to note that such a change would be a significant and controversial development as it would restrict freedom of expression and communication, which are essential components of modern society.