Is That Even Legal?
Is That Even Legal?
Ban TikTok!?!?!?!!? Is That Even Legal?
Can TikTok's data practices be trusted, or are there deeper privacy risks lurking behind its addictive interface? Privacy expert K Royal joins us to dissect the critical question, “Is that even legal?” This episode uncovers the sophisticated algorithms driving TikTok's uncanny content personalization and the significant privacy risks entailed, such as potential keystroke logging and extensive data access. We compare TikTok's practices to other social media giants, exploring why these concerns have led to global governmental crackdowns and what it means for user privacy and data security.
We also tackle the contentious issue of banning TikTok in the United States, balancing national security concerns with First Amendment rights. This debate has vital implications for small businesses, artists, and influencers who depend on the platform. Could a comprehensive federal privacy law offer a better solution than an outright ban? Royal weighs in with her expert insights, underscoring the urgent need for robust legislative action to protect consumer privacy across all media companies. Listen in for an enlightening discussion that highlights the necessity for Congress to prioritize consumer data security in the digital age.
Is that even legal? It's a question we ask ourselves on a daily basis. We ask it about our neighbors, we ask it about our elected officials, we ask it about our family and sometimes we ask it to ourselves. The law is complex and it impacts everyone all the time, and that's why we are here. I'm attorney Bob Sewell and this is season five of the Worldwide Podcast that explores that one burning question. Is that even legal? Let's go. Today on the show is K Royal. K Royal is an attorney. She's an expert in privacy issues. She practices globally, she has interests of multinationals on her mind all the time and she has interests of local people who are struggling with privacy issues. Now, kay, welcome to the show again.
K Royal:Thank you for having me back. I appreciate it.
Attorney Bob Sewell:Thank you for having me back. I appreciate it. Last time we had you on, we were talking about privacy issues and I was freaking out because when I'm going downtown and I've got tacos on my mind and suddenly I'm getting advertisements for tacos and I can't handle this.
Attorney Bob Sewell:It's freaking me out. But recently there has been some TikTok drama, okay, and it's flaring up in the Congress and it's not something I know a tremendous amount about, which is why I want you on to talk to you about it. I want to tell you about my problem with TikTok, though. My problem with TikTok is, yes, I tried it out and I was like addicted in, like the first hour of use. And it's showing me, you know, mma. It's showing monster trucks, all the stuff I like, you know, people getting hurt and falling down and the physical comedy. I love all that stuff. And the next thing, you know, and it knows me so fast.
Attorney Bob Sewell:Yes, yes that during lunchtime I want to see comedy and, it knows, at the nighttime I want to see MMA and whatever else is you know, floating around my brain and it really freaked me out how fast it knew me.
K Royal:Well, that's one of the problems with TikTok is that quite often that's what the users say is TikTok knows me better than I know myself.
Attorney Bob Sewell:Yeah, and I just, and I just said I can't deal with this and I turned it off. I mean, I'm not, I'm not joking, it's like this is. This is not good for me and I left it. Yeah.
K Royal:But well, there's actually the basis of a lot of complaint that a lot of government and states actually have against TikTok is how addictive it is for teenagers and for young adults, and there are laws that are restricting social media to only a certain number of hours a day, whether it's TikTok or other social media, because of the devastating mental implications it's having, especially on teenagers. If you remember being a teenager going through school and how brutal that was, imagine it being online across the web. So that's one of the things about TikTok. But, to be honest, I used to say that I'm not going to knock something until I try it. That's why I don't talk bad about golf. I've never tried it. So I'm not going to knock something until I try it. That's why I don't talk bad about golf. I've never tried it, so I'm not going to knock it. But there are some things you don't have to try yourself to know they're bad. For example, I'll never try cocaine. I know it's bad, I'm not going to do it. So TikTok to me is like that Knowing what I do about privacy and how companies handle data, I'm not going to try TikTok Now. I love my social media. I'm probably the most active personal social media you'll ever find in the privacy community. I love social media. Matter of fact, I had to get off Twitter though you know I don't even go on X anymore. That's just not a thing but with TikTok, is it a problem? Yes, it is.
K Royal:Now there's a lot of evidence that the government has found about the activities of TikTok, because it is owned by a company based out of China. I think technically they're based out of the Cayman Islands, but the people who own it actually live in China. This algorithm you talk about, how it knows you better and you know yourself, is a very, very powerful algorithm. Tiktok actually, at some point back in 2017, I think, bought the app Musically. It was a pretty popular app. People enjoyed it, but they found that the algorithm that Musically had was far inferior to the algorithm that they had developed for other platforms Toto, which I think was a news platform. Duyen, which I think was a video platform. Different things. They had honed this algorithm over years, so they essentially threw out Musically's background and replaced it with their algorithm, and TikTok has been the fastest growing social media in 2020, 2021, 2022, 2023. It's everywhere.
K Royal:Now here's the thing something like 30 countries around the world have banned TikTok at various levels. Most of them ban it for use with government employees. So public public interest companies, government employees they've banned it for all the federal employees. They've even advised that these employees need to remove it from their personal devices as well, not just their work devices. So the US isn't the only country that has a problem with TikTok.
K Royal:Now, one of the things that I heard about TikTok years ago and I believe it because it came from someone that used to work with one of those multi-letter alphabet agencies that does research is when you click on a link in TikTok, it does not open in a separate browser.
K Royal:It looks like it does, but it actually opens the browser in TikTok and everything you do from that point forward. Even if you go away from your phone and come back and open up that browser you had open, they're logging your keystrokes, so your username and your passwords and everything for any account that you access through that browser. I believe it. Like I said, I believe the person who gave me the information and so to me that just right there said no, any company that is going to design their software to do that cannot be trusted. Now add to the fact that the company is owned out of China and that the government in China has ByteDance, the parent company of TikTok and their algorithm, listed as one of their special export controls that they have control over. That makes it even more dangerous.
Attorney Bob Sewell:Yeah, I mean just, we're just from a very creepy perspective. That's. That's scary as hell. I'll be honest. I mean if, if I'm logging on to XYZ and a business application after after playing around with TikTok, I got a lot of privacy issues from my clients. I'm protecting.
K Royal:Yeah, our whole lives are on these things.
Attorney Bob Sewell:I don't do that for my clients. I protect my clients' data, but if I was that type of guy, that would be a problem. What's Congress? Why is Congress freaking out? What are they freaking out about?
K Royal:Here's the thing They've been freaking out for a long time. Let's be honest, I believe they had started doing investigations back in, like the 2018, 2019, but, believe it or not, and most people aren't tying this back during the presidential campaigns in 2020, there was a rally for the sitting president that was embarrassingly low attended had told all of their fans and listeners not to show up at the rally. Well, that really irritated the sitting president at the time and so he started actions to ban TikTok, and I mean we're talking significant actions Now. These actions were later investigated. There were investigations going on for years and years and years. Tiktok met with people of the commission on what is it were later investigated. There were investigations going on for years and years and years. Tiktok met with people of the commission on what is it the commission on the foreign investments in US, different things like this. He wrote presidential orders that outlawed TikTok. Those were later overturned, believe it or not, by the Biden administration several years later.
K Royal:So the arguments have been going on for years. The investigations they've been meeting weekly if not. I mean monthly if not weekly. There have been hundreds and hundreds of pages expanded. There was like a 200-page investigation where ByteDance was agreeing to certain protections. They called it Project Texas, you can look it up. They were agreeing to put in certain protections to protect the data of Americans. They called it Project Texas. You can look it up. They were agreeing to put in certain protections to protect the data of Americans. They were going to store the data in a US company. The foreign company would have no access to it whatsoever.
K Royal:So this has been going on for quite some time and it's telling that the Senator Cantwell, who is the one that sponsored this bill, is also the one sponsoring the current proposed Federal Privacy Act. So one of the problems is that the US doesn't have a federal privacy law. We have sectoral laws in HIPAA for health care, in FERPA for education, in the Gramm-Leach-Bliley for financial but we don't have a federal one. And we've tried so many times. It's ridiculous. Apparently we're just not going to do it. So there is one on the table now. So the same Senator Cantwell that sponsored that co-sponsored it, also sponsored these actions against TikTok this year, but it wasn't going through.
K Royal:It went through on an aid to foreign, a foreign aid bill, supposedly for the Ukraine. It's in there. There's some others in there, but if you actually read the bill or the law. I guess Biden actually signed it into law. It was interesting. I was recording with my Sirius Privacy last week with my European co host and we were talking about it and I went to look it up and Biden signed it as we were recording the podcast. I'm like I don't even know if Biden is going to sign this. I mean, really, is he going to do this? And then, bam, he signed it while we were actually recording the podcast. So it went through on a foreign aid bill. It did not go through on the bill that was proposed for TikTok itself, but if you read through the bill, there's also laws against uranium, petroleum and products like that that are also related to Chinese interference. So it's a really interesting bill when you go and read it. But here's the thing. So it's really interesting Bill when you go and read it. But here's the thing, the reason why everyone's up in arms, and I'm going to be honest, I don't think Congress did it right.
K Royal:They want to force ByteDance to divest itself of TikTok. Now they're probably talking about TikTok Inc. Which is incorporated in California. They mean the platform. So they want to force them to do it by January 25th or January 19th 2025. It's nine months away. They have a 90-day grace period. How are they possibly going to do this? They have to do it to a qualified buyer that has no foreign influence or anything like that, or foreign control. Beijing government has to approve the bite dance sale. If they're going to buy this, the Chinese government has to approve it. Do we really think that's going to happen?
Attorney Bob Sewell:No, no, no, but. But I also wonder if the problem with certainly I think there's a. Let me just back up. There's obviously a problem if China's getting my data, and especially if I'm a government worker or I'm a, if I'm a defense contractor, and if they're going out.
Attorney Bob Sewell:And you know, and TikTok is one of the smartest apps you've ever used- and it's like it's reading your mind, it's tracking your eyes, it's seeing what you're looking at on the screen and it's seeing how long you're focusing on those things. So it is one of the smartest apps that you've ever used. So there's a problem on one level if China has it and who is a geopolitical foe, and there's another problem if it's a California company that just wants to mine me for profit.
K Royal:Right, which we don't have any of those at all either.
Attorney Bob Sewell:Yeah, we got those all over the place, right, but? Then, again, I don't know if I'm completely comfortable with the TikTok code, the code and what it's doing, and how is it solved by? How is the problem solved? By just transferring the code to a third party?
K Royal:Exactly, exactly.
Attorney Bob Sewell:That's what I'm concerned about.
K Royal:That's what I'm worried about. What do you think? Not only that, but well, it's a problem. I mean, they're still going to have the code. And do we really believe that that code, in no way, form or matter, is going to be shared with any type of subsidiaries or people who are going to be able to get the information anyway? We can't control yeah, we can't control the flow of information. It's not like something visible that you can see that is going outside the US. It's not like mailing a letter. This isn't Now. They can monitor channels and things like this, but I guarantee you criminals aren't necessarily going to follow the law. So you can make it illegal for them to do it, but that's the very definition of a criminal Right. They break the law. So I don't see it's going to happen.
K Royal:Not to mention the constitutional arguments, which is what everyone's talking about Banning TikTok in the US or saying it's a violation of the First Amendment, freedom of speech. Well, if it's dangerous to the US, if it poses a significant security concern, they absolutely can ban it. They ban products all the time because they present a significant safety risk to people. So this isn't much different than that. I mean, there's the whole constitutional First Amendment thing. But really does that outweigh the national security? So that in itself I'm going to let the constitutional scholars go figure out, and I am not one of those but I think that one is halfway defensible.
K Royal:Congress says they have all kinds of investigations that they've done that they have not disclosed publicly. That would support the fact that it is truly a national security concern. Think about it. If you're a federal contractor and your kid has it on TikTok, that's almost the same thing as you having it. It's in the house, it's listening to you, it knows you want tacos, it knows where to find you. But the forcing, the selling of the company, now, true, that's kind of what the Committee on Foreign Investments in the US is kind of supposed to do, is make sure that we don't. But I don't know that, since it's not a monopoly, that we actually have the right to force a company to sell.
Attorney Bob Sewell:Let me ask you this If I am in huge favor of owning TikTok not owning excuse me using TikTok should I be concerned?
K Royal:No, I can't let it go.
Attorney Bob Sewell:Yes, First of all, K, if I'm not doing a TikTok dance once a day, my life is lost. Right, I mean no, but people, they've developed their businesses around TikTok.
K Royal:Even lawyers. Billions of dollars. That's one of the things TikTok is arguing is there are billions of dollars coming into our economy by small businesses in the US that are using TikTok not even just small businesses big businesses that are using it to promote their business and get visibility in front of people. Business and get visibility in front of people. There was an issue about recording artists pulling their music from TikTok to being used because they pay incredibly, incredibly low percentages. And then Taylor Swift came back on and said yes, they can use my music, and it was the week before she released her new album. So of course, other artists followed there. They have music from decades past that have essentially been favorites from those of us that come from the 70s and the 80s. I'm not going to age myself tremendously. I'm 85 and I look damn good for my age. You're not 85. That's my story and I'm sticking to it. But there's these old songs that we love and now they are revitalized on TikTok. People are using them for their memes and their background. The recording artists are getting a lot more money now, even though it's an incredibly small percentage, but because their older music is now featured on TikTok as well, so it's a huge boon to economy and to people. And there's people who make their living off being influencers. Their dogs make thousands and thousands of dollars on TikTok. I follow a couple of. I don't use TikTok, I use the feed to Facebook, but there are dogs and cats who've made tens and thousands, or not hundreds of thousands, of dollars. So is it going to really impact the economy? Yes, it will. It absolutely will.
K Royal:The American people as a whole will rebel against this, but they've already appealed it. They've already filed their lawsuit in the DC Court of Appeals. Now for people who may not know, any constitutional issue can go straight to a federal court of appeals. That's where it goes Now. The DC Court of Appeals is the highest court for DC. They just have the one level, their superior court, in the Court of Appeals. So they've already appealed it to the DC Court of Appeals.
K Royal:Once that decision is made, then it could be appealed to the US Supreme Court, because that's the only court that sits over the federal courts of appeals. The US Supreme Court gets thousands and thousands of requests, like six or seven or 8,000 requests to review court cases a year, and they only take about 150 to 200. They only take about 150 to 200. Now, for all of those, if there were a petition for 8,000 and they only took 7,750 out, that's that final decision. For that 7,750 cases it's not going to go with. Whatever the lower court decision was, it stands, supreme Court's not going to take it. So that's a final decision in itself. So this sale is not going to go through anyway because they're going to keep appealing it and then they got to appeal it to the US Supreme Court. They're not going to force the sale while it's waiting in court for a hearing.
Attorney Bob Sewell:Let me ask you. We've talked about the challenges in the law. We've talked about the privacy concerns with TikTok. We've talked about the privacy concerns with TikTok. There's no way getting you know I cannot use the links, right. Right, that would protect me. Behave yourself. You know, I could behave myself on TikTok and that would protect me. I could limit the amount of use if I or I could not use it, obviously, but I'm going to have privacy issues by using any social media and especially TikTok. Yes, so let's talk about the magic. It's magic wand time. Okay, kay, yes, okay, I love it. You're going to tell those congressional dudes and dudettes exactly how to fix this problem. Okay, you know, wave the magic wand on what are you going to tell? What should have? Congress have passed.
K Royal:Oh my goodness, this is absolutely crazy. I think the banning is a lot better than anything else, but I think what needs to come first is a federal privacy law. We can't get Congress to pass one because they don't understand the implications of data use. People hear privacy and they think they know what it means. They don't understand that behind the scenes, that's the tracking data, that's the massive amounts of tracking and cookies and consents and secondary uses of data and further uses of data and sharing data in other places. The only way to control that is to pass a law to stop it. So the first step is a federal privacy law, and it needs to be one that has teeth. You can't pass a weak law and expect it to have any impact. We now have 18 states that have passed an omnibus privacy law, california being the first one, followed swiftly by Connecticut and Colorado and Virginia and Utah, who all went into effect already. You've got Oregon that just went into effect this year. You've got others packed up behind it.
K Royal:I didn't expect to see states pass omnibus privacy laws, and omnibus simply means it applies to all data. So, where we said earlier, hipaa applies to health data, ferpa applies to education data. These state laws apply to all data, not health data and education all data. California is the only one that set up a privacy agency, so I faintly think there needs to be a very, very strong federal privacy law. It needs to create an agency with the power to oversee privacy. The FTC is doing a darn good job on what it was authorized to do, but it wasn't authorized to oversee privacy. That kind of comes from a side effect of deceptive and unfair trade practices, so they need to pass a very strong privacy law. It's not going to pass because California has a right to sue people or sue companies if they have a breach. How many breaches do we have?
K Royal:Tons and tons and tons of breaches and you can't punish the companies because you can't sue for a breach unless you've been harmed. And how do you prove that this harm is the one? This breach is the one that caused the harm, not those other 50,000 breaches I've been in? So it's hard to do it. So California gave a right to sue companies if they have a breach and you don't have to prove harm. And that's what's holding up a federal law is the right to sue for a privacy breach, as well as preemption of state laws. The state laws don't want to be preempted. They passed what they passed. We now have 18 states with state laws. The state laws don't want to be preempted. They passed what they passed. We now have 18 states with privacy laws. Not all of them are in effect yet, but they've been passed. There's still more passing this year. We've already had four passed this year. I was completely flabbergasted with that. So that's my advice to Congress Get off your butts and pass a strong privacy law.
K Royal:Then you can start addressing media companies.
Attorney Bob Sewell:I love it. K, thanks for coming on the show.
K Royal:My pleasure. Thank you so much for having me back. I really appreciate it. Always a pleasure to chat.
Attorney Bob Sewell:Thanks for listening to the podcast Is that Even Legal is now listened to a hundred countries and available on virtually all podcast platforms. Leave us a review, send us some show ideas and do so at producer at even legalcom. Don't forget, as smart as we sound and as lovable as we are, we are not your lawyers and we are not giving you legal advice. But if you need some legal advice, get some. There are some great lawyers out there and we are always ready to help. See you next time.