Loyola University Chicago School of Law, JD 2022
TikTok continues to rise in popularity, though their history of complaints and lawsuits paints a different picture. On February 27, 2019 the Federal Trade Commission (FTC) settled with TikTok for $5.7 million in response to a child privacy complaint. This settlement was the largest civil penalty obtained for a child privacy complaint, prompting TikTok to take corrective action by hiring compliance focused employees. Consumer groups now argue that TikTok has failed to make such changes and continues to “flout the law”. In response to national security concerns, President Trump signed an executive order on August 6, 2020 effectively banning the application in the U.S.
TikTok’s rising popularity
COVID-19 stay-at-home measures caused millions of users to flock to the already trending social networking platform, TikTok (formerly Muiscal.ly). In March 2020, the application reported 11 million downloads and an April 2020 report now claims that TikTok surpassed 2 billion downloads, making TikTok’s first quarter of 2020 the best quarter for any application to date. Among the application’s more than 800 million users are bloggers, artists, chefs, and most notably, minors. In 2019, military recruiters even utilized the application as an effective way to approach Generation Z recruits, until the Department of Defense released a Defense Department Cyber Awareness Message indicating potential national security risks associated with having the application on government devices.
TikTok’s history of complaints and class action lawsuits
On February 27, 2019 the FTC filed a complaint against TikTok alleging a violation of the Children’s Online Privacy Protection Act of 1998 (COPPA). COPPA was enacted by Congress to protect children from the unauthorized collection of their personal information by websites and applications. Further, a violation of COPPA constitutes an “unfair or deceptive act or practice in or affecting commerce” thus violating 15 U.S.C §45(a). TikTok specifically violated COPPA when it failed to obtain parental consent before collecting personal data from children under the age of 13. Personal data includes basic information such as names, emails, phone numbers, and pictures. However, a complaint filed in the Northern District of Illinois by Illinois minors on May 8, 2020 seeks to include biometric data in that definition.
Biometric data goes beyond names and demographics and can constitute fingerprints and facial recognition data. The current complaint alleges a violation of the Illinois Biometric Information Privacy Act (BIPA), claiming that TikTok failed to obtain consent before collecting “face geometry” scans. The complaint alleges that TikTok’s facial recognition technology scans every uploaded video and extracts geometric data pertaining to contours of an individual’s face and then stores a template of each face without informing the user or obtaining the appropriate consent. This complaint came shortly after TikTok settled a class action lawsuit for $1.1 million in response to allegations that user data was being transferred to Chinese servers to track the locations and activities of U.S. residents. On May 19, 2020, a class action lawsuit was subsequently filed in the Northern District of California in response to BIPA violations.
What measures are being taken?
In response to TikTok’s 2019 COPPA violation, they agreed to pay $5.7 million. This settlement is the largest civil penalty to ever be obtained by the FTC for a children’s privacy complaint, indicating that COPPA is to be taken seriously by application developers moving forward. As a part of the settlement, TikTok agreed to obtain parental consent moving forward and to retroactively delete videos of children under 13. In January 2020, TikTok took corrective and preventative action by appointing a veteran attorney from Microsoft, Erich Andersen, to serve as the application’s global general counsel. TikTok also sought to hire an Ethics and Compliance Manager via a job posting on LinkedIn.
Many are asking whether these measures are enough. For example, a May 14, 2020 New York Times article indicates that consumer groups are not pleased with TikTok’s attempts at corrective action. In a complaint to the FTC, consumer groups led by the Center for Digital Democracy and the Campaign for a Commercial Free Childhood claimed that many videos were not effectively taken down and the application’s age verification system posed serious concerns amounting to risks of sexual predation.
What concerns does Trump have?
While there is no doubt that TikTok made a name for itself among American youth, it now appears that the application has permeated into the homes of every American. On August 6, 2020 President Trump signed an executive order effectively banning the application in the U.S., but his method of keeping TikTok off American devices remains unclear to the public. Technology policy and national security experts say that this means the application would likely no longer receive advertising from American companies. TikTok could then be taken off of American app stores making user updates impossible, thus rendering the app nonfunctional on user devices. This ban is said to take effect on September 20th. The order states that the biggest concern to the American people is the potential for the Chinese Communist Party to access personal and proprietary information, including the locations of federal employees. What started out as an FTC concern related to child safety, is now a national security threat leaving Americans waiting to see how such measures will play out.