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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Nia: Hey, Aughie.
Aughie: Good morning Nia. How are you?
Nia: I'm good, except I have a quick question for you. Weird Quick question.
Aughie: Okay.
Nia: In Montana, Montana said there shall be no TikTok, which I don't know how they thought they could just keep the borders of Montana free of TikTok. But that is neither here nor there. But my question for you is, so a judge has stayed that law, meaning that law cannot go into effect. It was supposed to go into effect I think January 1st, probably. The laws usually go into effect on some first of some month that it's easy to remember, June or January or whatever. I think this was supposed to go in effect January 1st. What I want to know is, does the stay on that law mean that nothing goes into effect until the court case works its way through the court system? The State of Montana can do nothing? It cannot punish, it cannot stop people from downloading TikTok, it can't stop people from using TikTok.
Aughie: That is correct.
Nia: It has to work its way through the legal system?
Aughie: That's right.
Nia: Does that mean all the way through to the Supreme's? Like is that all the way through the legal system?
Aughie: Well, potentially. Because as we've discussed previously in our first summer of Scotis, if a law or court ruling is not heard by the Supreme Court, then the law or court ruling stands. I mean, if it got appealed the whole way to the Supreme Court.
Nia: The Supreme Court was like I cannot get bothered by TikTok.
Aughie: Yes.
Nia: Then that judge's order would stop and Montana would then be able to go ahead with its law or depending on what the court case found.
Aughie: Eventually all the state does is temporarily suspend the enforcement of the law. That's what the state does. The government can't do anything, and nobody can be prosecuted for violating the law. But eventually there will be a trial, a hearing if you will, as to whether or not the law violates the Constitution. What Montana is claiming is it has state police power to decide what social media platforms can be used by its citizens.
Nia: Yeah, and I think it's claiming consumer protection against the Chinese government because TikTok is based in Beijing.
Aughie: Beijing. They're concerned that the user information provided to TikTok could be accessed, utilized, by the Chinese government.
Nia: Because Chinese law allows that.
Aughie: Chinese law definitely allows that.
Nia: Well, let's just say if we're recognizing laws of the United States, we're also recognizing laws of other countries. Chinese law allows for their government to ask any company at any time for information from its sources and it has to give them up.
Aughie: Yes.
Nia: The United States doesn't have that law.
Aughie: That's correct.
Nia: We have subpoenas, but you can only subpoena specific information. You can't just say, I want all the user information from everybody from Moldova on Facebook. Like Facebook would say, I'm sorry, I can't hear you over the ridiculousness of your request and then there would be a lawsuit. You don't get to do that in China.
Aughie: That's right.
Nia: Which is why Montana's wigging out about TikTok.
Aughie: That's correct.
Nia: But TikTok creators on the other side are saying hello free speech like, you're limiting my ability to make money off of TikTok, to be expressive off of TikTok. Businesses use TikTok a lot to advertise, you're removing all of that from me unfairly. That's where the case is going to go eventually. But the stay just means that people in Montana can feel free to use TikTok currently until a court settles this question.
Aughie: That is correct. That's all the stay is. It's like when an injunction is issued against the government, basically enjoining them from doing something they intended to do, whether it be with a law or the enforcement of a regulation, etc. All it does is pause. It just pauses things until there is a final ruling in the substance of the case.
Nia: Sometimes that's just cooling off period, where, let's everybody calm down and sometimes it's a matter of I need you not to do this thing because my business depends on it or my whatever depends on it.
Aughie: Well, in some cases with stays, the court that issues the stay might send out a very clear message that more than likely one party will win. Yes.
Nia: That's what this stay did. This stay was like Montana does not have a leg to stand on as it's currently argued.
Aughie: That's right. But I mean, if Montana feels strongly about this, they will seek a hearing to the constitutionality of its law, but the judge who issued the stay, I read his ruling he made it very clear that as far as he was concerned, if this goes to trial, Montana is going to lose.
Nia: Which is not surprising when we consider how ubiquitous social media is and if nothing else, how unenforceable this would be. Like seriously, how would you enforce people downloading TikTok and they were saying they weren't going to enforce it against users, they were going to enforce it against providers. Any company that provides you the opportunity to download it, but I present to you, could serve the dark web where you can get anything. If you would like Tiger livers, you can get those on the dark web. You can get anything on the dark web.
Aughie: We don't even have to go to the dark web.
Nia: Use a VPN.
Aughie: Well, just think about all the electronic devices that currently allow you, to download the TikTok app. That's going to be part of the difficulty in enforcing it.
Nia: Is that they want to sue those devices, they wanted to sue the device makers. That's going to be a lawsuit after lawsuit, from Montana. Now that being said, Montana saying that they couldn't have it, that people can't have it on their state owned devices is something they can do. The state is allowed to do that.
Aughie: Yes, the state government as an employer can go ahead and do that. We know this because.
Nia: We live in Virginia.
Aughie: And we already have a similar ban.
Nia: That's a legitimate ban in the sense that the state owns that property and it can say with our property, you cannot do the following thing.
Aughie: Yes.
Nia: It does not say that you can't have that on your private device or your other devices, you just can't have it on the state device. Montana can do that and get away with it, it's just that Montana said nobody anywhere in the state of Montana can have TikTok which was probably doomed to failure, I would think.
Aughie: That falls into the category of being overbroad.
Nia: A little bit of overreach there.
Aughie: Yeah.
Nia: Thanks Aughie.
Aughie: Thank you.