This ban "violates the Constitution of the United States in many ways," says the company, including the First Amendment that guarantees "freedom of expression," argues the document consulted by AFP.

Many U.S. lawmakers believe that the platform of short and entertaining videos, frequented by 150 million Americans, allows Beijing to spy on and manipulate users. The company has always denied these accusations.

But the Montana legislature passed in mid-April a text that orders mobile application stores (Apple and Google) to stop distributing TikTok from January 1, 2024, while Congress and the White House are considering similar bills.

"TikTok exercises its editorial judgment, a constitutionally protected right, to disseminate and promote content created by third parties," the company's lawyers say.

They also argue that the U.S. state does not have the legal power to ban the app on national security grounds, a matter that falls under federal jurisdiction.

The complaint also refers to a principle of fairness. "Instead of regulating social networks in general, the law bans TikTok, and only TikTok for punitive reasons... based on speculative concerns about data security and content moderation," the lawyers argue.

Democratic representatives had already pointed out during the debates that many criticisms made to TikTok, on data privacy, misinformation or the harmful effects on the health of the youngest (addiction, depression) also concern other social networks, such as Instagram.

'Anti-China sentiment'

As soon as the governor of this northwestern US state, Greg Gianforte, signed the law into law last Wednesday, many voices were raised to accuse Montana of censorship or to point out that the text would be difficult to enforce, technically and legally.

A sign against the TikTok ban during a protest in Washington on March 22, 2023 © Brendan Smialowski / AFP/Archives

"With this ban, Governor Gianforte and the Montana legislature are trampling on the freedom of expression of hundreds of thousands of residents who use this app to express themselves, find information and promote their small businesses, in the name of anti-Chinese sentiment," Keegan Medrano, an official with the local branch of the powerful civil rights group ACLU, said Wednesday.

Five TikTok users have filed an appeal in federal court in Montana seeking the invalidation of the law.

Under the First Amendment of the US Constitution, "TikTok has the right to distribute information and users have the right to receive information and also to distribute it," Lyrissa Lidsky, a law professor at the University of Florida, told AFP.

The text is therefore "likely to be considered unconstitutional," she detailed.

"Freedom"

The law would be struck down if TikTok were to be bought by a U.S. company (or from a country not an enemy of the United States), and the White House has urged TikTok to seek this type of solution if it wants to be able to stay in the country.

The fate of TikTok in the United States has been debated for several years. Donald Trump had already tried, in vain, to ban the application.

But more recent trade and political tensions with China are fueling animosity toward the Chinese government among elected officials and the public. The February flyby of a Chinese balloon supposedly spy, especially over Montana, did not help matters.

TikTok is already banned on the phones of employees of many organizations, from the European Commission to federal agencies in the United States. India banned the service completely in 2020.

NGOs and elected Democrats repeat, however, that users will only have to use VPNs (virtual private network), which allow access to the Internet from another location, to circumvent the law.

And they won't be penalized, because the law only provides for fines for app stores.

"The irony is that Montana is the anti-government and regulatory capital. All that matters is freedom — except when it comes to TikTok apparently," Carl Tobias, a law professor at the University of Richmond, said Monday.

© 2023 AFP