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TikTok faces class action lawsuit over data privacy

A group of parents are suing the social media app TikTok, claiming it is illegally collecting and sharing identification information and sending it to China.

Under the same premise, President Donald Trump last week signed a ban on both TikTok and the WeChat app citing the same concerns. In his executive order, the companies have until Sept. 15 to sell to U.S. companies or face permanent banishment from the U.S.

There are three takeaways from these actions: One is that there will be a lot of parents happy to see TikTok gone; two, there will be a lot of unhappy TikTok users who can no longer access the app;  and three, if a U.S. company buys the app, it gains millions of young, tech-savvy users.

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Dozens of minors allege, through their parents, that TikTok, a video-sharing app, collects information on their facial characteristics, their locations and their close contacts, sending all of it to Chinese servers. More than 20 lawsuits in California have merged to form the class action. The plaintiffs are expecting to ask the judge to turn it into a nationwide class action, potentially affecting tens of millions of users.

Andrew Lustigman, an attorney with the New York/New Jersey Olshan Law Firm, which specializes in social media law, offered some insight into the case.

Andrew Lustigman

“The lawsuits allege a variety of theories, primarily claims that the app failed to provide sufficient notice of its actual data collection and sharing practices, some of which are echoed in the comments of the President,” he said. “In particular, at least one group of claimants allege that the app saves and distributes internally videos that were not uploaded by the user, who presumably thought that by deleting the videos they would not be shared.”

Additionally, Lustigman said, there are claims on behalf of Illinois residents who say the app failed to comply with the unique Illinois Biometric Identification Act, “which requires consent before collecting, among other things, voice prints. A proposed Illinois subclass has been sought. The law creates a significant exposure, as each violation is at least $1,000. Facebook recently settled a class action under the Illinois privacy law for $650 million, which was approved last month.”

TikTok is fighting to have the privacy lawsuit dismissed, NPR reported. “But if it survives, the suit could cost the company hundreds of millions of dollars. Microsoft said Sunday it has discussed with President Trump its plan to acquire TikTok’s U.S. operations, just as the White House threatens to blacklist the hugely popular Chinese-owned app.”

A panel of federal judges ruled that the case will be heard in the U.S. District Court for the Northern District of Illinois.

TikTok denies the allegations by both the parents and the president, but it is under intense pressure to avoid a drawn-out legal battle.

“The Trump administration considers TikTok a national security threat because its parent company, ByteDance, is based in China,” according to NPR.

A Microsoft deal for TikTok could be worth billions of dollars.

“Microsoft fully appreciates the importance of addressing the President’s concerns,” the company said on its blog. “It is committed to acquiring TikTok subject to a complete security review and providing proper economic benefits to the United States, including the United States Treasury.”

Any company acquiring TikTok – including MicroSoft, which already owns Xbox, LinkedIn and Skype — would also get a massive user base of tech-savvy teens and 20-somethings.

It is not clear whether such a deal would meet Trump’s goal of clamping down on ByteDance, which he says could turn over personal information on U.S. citizens to the Chinese Communist Party. This potentially allows China, according to Trump, “to track the locations of federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage,” CNN reported.

“Shortly after issuing the order regarding TikTok, the president issued a similar order for WeChat, a group chat app owned by Tencent, a Chinese based company,” according to CNN.

Lawsuits against social media are not new

Numerous lawsuits have been filed against social media companies for years, but most involved an aggrieved user, including the president, who sued Twitter recently after it put fact-checkers on two of his tweets.

Most suits filed by these users fail, according to The Verge, a company that reviews tech hardware, products and trends.

Social media sites can legally ban users for nearly any reason, it states. “They can ban users for off-color jokes. They can ban users for being white supremacists. They can ban users for totally arbitrary and inscrutable reasons. If you sue over a Twitter or Facebook ban, you will almost certainly lose. Despite this, people keep filing lawsuits claiming they’ve been censored on social media.”

In May, an appeals court in Washington, D.C. rejected a complaint by Laura Loomer, a conservative activist who was banned from Twitter for anti-Muslim tweets and later chained herself to the company’s headquarters to protest.

“Loomer argued that Facebook, Google, Twitter, and Apple had all colluded to suppress conservative content, violating Loomer’s First Amendment rights in the process. The court disagreed and threw out the suit,” The Verge reported.

While numerous anti-bias lawsuits have been filed against social network giants, Google, Twitter and Facebook, courts across the country have repeatedly defended them as having the right to ban users at will.

Conservative activist and blogger Charles C. Johnson accused Twitter of violating his free speech rights when it banned him in 2015. A California court granted Twitter’s request in 2018 to dismiss the complaint. The rights at stake were Twitter’s, not Johnson’s, the ruling stated.

“It is well established that the constitutional right to free speech includes the right not to speak,” the ruling stated. Twitter’s rules “clearly state that users may not post threatening tweets, and that (Twitter) may unilaterally, for any reason, terminate a user’s account. The rules reflect (Twitter’s) exercise of free speech.”

Facebook removed the Federal Agency of News (FAN) in 2016 for its alleged ties to the Russian Internet Research Agency “troll farm.” FAN sued Facebook for First Amendment violations and breach of contract. Judge Lucy Koh dismissed the suit in 2019. FAN believed a section of the law protecting social media companies giving them the right to ban anyone, had an exception for political speech. It does not.

In 2017, according to The Chicago Tribune, the families of victims of terror attacks in Paris, Brussels and Israel blame social media companies including Facebook and Twitter for facilitating terrorist communications. “In a string of lawsuits filed in New York, they say they want Twitter and Facebook to pay damages for failing to stop violent extremists from using their platforms to recruit followers, intimidate enemies and raise money.”

Similar lawsuits across the country have been rejected by the courts on grounds that the companies are protected by the Communications Decency Act, which bars social-networking companies from being sued for things their customers say.