In a pair of first-of-their-kind lawsuits against the social media platform, Indiana Attorney General
The litigation, filed Dec. 7, is likely to usher in a “pile-on” effect with other attorneys general bringing similar actions in their states, said Fred Cate, a law professor and vice president of research at Indiana University who specializes in information privacy and security law.
“This won’t be the last time you see an attorney general looking at holding TikTok accountable,” Nebraska Attorney General Doug Peterson (R) told Bloomberg Law.
Peterson co-leads a bipartisan coalition of state attorneys general, including Rokita, who are probing whether TikTok’s marketing to young users contributes to physical and mental health harms, in violation of state consumer protection laws. Peterson said children’s safety online is a common concern for attorneys general that cuts across political parties.
Representatives for Connecticut, New Jersey, and other states involved in the multistate effort declined to comment on whether they’re planning to sue TikTok, too. Rokita’s office decided “the danger was high enough” and they had sufficient evidence to move ahead with filing suit, a spokesperson said.
Indiana’s lawsuits allege that TikTok violates a state consumer protection law that prohibits unfair or deceptive business practices. The suits seek penalties of up to $5,000 per violation and a state court order for TikTok to stop making allegedly misleading claims related to children’s safety and China’s data access.
A TikTok spokesperson declined to comment on the pending litigation but said community safety and security is a top priority.
“We build youth well-being into our policies, limit features by age, empower parents with tools and resources, and continue to invest in new ways to enjoy content based on age-appropriateness or family comfort,” TikTok’s Brooke Oberwetter said in an email.
TikTok is in talks with the White House toward a deal to store data on American users on
Oberwetter said TikTok is “confident” that these negotiations will “fully satisfy all reasonable US national security concerns,” adding that “we have already made significant strides toward implementing those solutions.”
Governors in states including South Dakota and Maryland have banned the app from being used on government-owned devices due to security concerns. Oberwetter said these bans are largely fueled by misinformation about TikTok and that it doesn’t share US data with the Chinese government as governors have claimed.
Indiana is accusing TikTok of deceiving consumers about the security and privacy of their data by downplaying risks of access by the Chinese government.
Indiana’s state court will need to decide whether those disclosures are robust enough, said Amy Keller, the lead data security and consumer privacy litigator at DiCello Levitt.
“Courts are going to have to start holding tech companies accountable because far too often, they’ve been able to point to, you know, a very small disclosure and get away with a lot,” Keller said.
Obtaining evidence that would indicate whether US user data from TikTok is being shared with China also may be difficult, Keller said, because it likely would require involvement from China’s Ministry of Justice and Supreme Court, which could limit or reject a request for information.
The children’s safety-focused aspects of Indiana’s lawsuit criticize how TikTok describes the appropriateness of its app for young users. The suit points to examples of how kids and teens can view sexual content, profanity, and drug references on the app.
“Indiana’s approach is interesting,” said Josh Golin, executive director of children’s advocacy nonprofit Fairplay. “Holding them accountable for false marketing is really important.”
Fairplay and other groups have pressed US regulators at the Federal Trade Commission to examine whether TikTok is collecting children’s information without parental permission, in violation of a federal privacy law. TikTok’s predecessor Musical.ly reached a $5.7 million settlement with the agency in 2019 for not safeguarding the data of app users who were under 13.
Attorneys general for 44 states and territories co-signed a March letter expressing concern that the app lacked adequate parental controls and exposed children to mature and harmful content.
“If you have something touching upon exposure to children, that’s something that’s going to get a lot of attention from attorneys general,” said Ketan Bhirud, a member of law firm Troutman Pepper Hamilton Sanders LLP’s state attorneys general and regulatory investigations practice. Bhirud previously served as deputy general counsel for the US Department of Homeland Security and as general counsel for Nevada’s attorney general.
Indiana University’s Cate said it remains to be seen how a judge would respond to claims against TikTok that could be difficult to prove or resolve in court, especially since the state doesn’t have laws specifically designed to oversee issues like age ratings for kids.
That’s “one of the challenges of using litigation to deal with something that you would normally think of as a public policy issue,” Cate said.
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