January 17, 2025 • 25 mins
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.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Attorney Bob Sewell (00:04):
Is that even legal?
It's a question we askourselves on a daily basis.
We ask it about our neighbors,we ask it about our elected
officials, we ask it about ourfamily and sometimes we ask it
to ourselves.
The law is complex and itimpacts everyone all the time,
and that's why we are here.
I'm attorney Bob Sewell andthis is season five of the
(00:26):
Worldwide Podcast that exploresthat 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 privacyissues.
She practices globally, she hasinterests of multinationals on
(00:49):
her mind all the time and shehas interests of local people
who are struggling with privacyissues.
Now, kay, welcome to the showagain.
K Royal (01:02):
Thank you for having me back.
I appreciate it.
Attorney Bob Sewell (01:04):
Thank you for having me back.
I appreciate it.
Last time we had you on, wewere talking about privacy
(01:31):
issues and I was freaking outbecause when I'm going downtown
and I've got tacos on my mindand suddenly I'm getting
advertisements for tacos and Ican't handle this.
It's freaking me out.
But recently there has beensome TikTok drama, okay, and
it's flaring up in the Congressand it's not something I know a
tremendous amount about, whichis why I want you on to talk to
you about it.
I want to tell you about myproblem with TikTok, though.
My problem with TikTok is, yes,I tried it out and I was like
(01:54):
addicted in, like the first hourof 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 fallingdown and the physical comedy.
I love all that stuff.
And the next thing, you know,and it knows me so fast.
(02:17):
Yes, yes that during lunchtime Iwant to see comedy and, it
knows, at the nighttime I wantto see MMA and whatever else is
you know, floating around mybrain and it really freaked me
out how fast it knew me.
K Royal (02:40):
Well, that's one of the problems with TikTok is that
quite often that's what theusers say is TikTok knows me
better than I know myself.
Attorney Bob Sewell (02:50):
Yeah, and I just, and I just said I can't
deal with this and I turned itoff.
I mean, I'm not, I'm not joking, it's like this is.
This is not good for me and Ileft it.
Yeah.
K Royal (03:02):
But well, there's actually the basis of a lot of
complaint that a lot ofgovernment and states actually
have against TikTok is howaddictive it is for teenagers
and for young adults, and thereare laws that are restricting
social media to only a certainnumber of hours a day, whether
it's TikTok or other socialmedia, because of the
(03:23):
devastating mental implicationsit's having, especially on
teenagers.
If you remember being ateenager going through school
and how brutal that was, imagineit being online across the web.
So that's one of the thingsabout TikTok.
But, to be honest, I used tosay that I'm not going to knock
something until I try it.
That's why I don't talk badabout golf.
(03:44):
I've never tried it.
So I'm not going to knocksomething until I try it.
That's why I don't talk badabout golf.
I've never tried it, so I'm notgoing to knock it.
But there are some things youdon't have to try yourself to
know they're bad.
For example, I'll never trycocaine.
I know it's bad, I'm not goingto do it.
So TikTok to me is like thatKnowing what I do about privacy
and how companies handle data,I'm not going to try TikTok Now.
(04:12):
I love my social media.
I'm probably the most activepersonal social media you'll
ever find in the privacycommunity.
I love social media.
Matter of fact, I had to getoff Twitter though you know I
don't even go on X anymore.
That's just not a thing butwith TikTok, is it a problem?
Yes, it is.
Now there's a lot of evidencethat the government has found
about the activities of TikTok,because it is owned by a company
(04:34):
based out of China.
I think technically they'rebased out of the Cayman Islands,
but the people who own itactually live in China.
This algorithm you talk about,how it knows you better and you
know yourself, is a very, verypowerful algorithm.
Tiktok actually, at some pointback in 2017, I think, bought
(05:01):
the app Musically.
It was a pretty popular app.
People enjoyed it, but theyfound that the algorithm that
Musically had was far inferiorto the algorithm that they had
developed for other platformsToto, which I think was a news
platform.
Duyen, which I think was avideo platform.
(05:23):
Different things.
They had honed this algorithmover years, so they essentially
threw out Musically's backgroundand replaced it with their
algorithm, and TikTok has beenthe fastest growing social media
in 2020, 2021, 2022, 2023.
It's everywhere.
Now here's the thing somethinglike 30 countries around the
(05:45):
world have banned TikTok atvarious levels.
Most of them ban it for usewith government employees.
So public public interestcompanies, government employees
they've banned it for all thefederal employees.
They've even advised that theseemployees need to remove it
from their personal devices aswell, not just their work
(06:07):
devices.
So the US isn't the onlycountry that has a problem with
TikTok.
Now, one of the things that Iheard about TikTok years ago and
I believe it because it camefrom someone that used to work
with one of those multi-letteralphabet agencies that does
research is when you click on alink in TikTok, it does not open
(06:31):
in a separate browser.
It looks like it does, but itactually opens the browser in
TikTok and everything you dofrom that point forward.
Even if you go away from yourphone and come back and open up
that browser you had open,they're logging your keystrokes,
so your username and yourpasswords and everything for any
(06:54):
account that you access throughthat browser.
I believe it.
Like I said, I believe theperson who gave me the
information and so to me thatjust right there said no, any
(07:18):
company that is going to designtheir software to do that cannot
be trusted.
Now add to the fact that thecompany is owned out of China
and that the government in Chinahas ByteDance, the parent
company of TikTok and theiralgorithm, listed as one of
their special export controlsthat they have control over.
That makes it even moredangerous.
Attorney Bob Sewell (07:33):
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 toXYZ and a business application
after after playing around withTikTok, I got a lot of privacy
(07:56):
issues from my clients.
I'm protecting.
K Royal (07:59):
Yeah, our whole lives are on these things.
Attorney Bob Sewell (08:03):
I don't do that for my clients.
I protect my clients' data, butif I was that type of guy, that
would be a problem.
What's Congress?
Why is Congress freaking out?
What are they freaking outabout?
K Royal (08:19):
Here's the thing They've been freaking out for a
long time.
Let's be honest, I believe theyhad started doing
investigations back in, like the2018, 2019, but, believe it or
not, and most people aren'ttying this back during the
presidential campaigns in 2020,there was a rally for the
(08:40):
sitting president that wasembarrassingly low attended had
told all of their fans andlisteners not to show up at the
rally.
Well, that really irritated thesitting president at the time
(09:02):
and so he started actions to banTikTok, and I mean we're
talking significant actions Now.
These actions were laterinvestigated.
There were investigations goingon for years and years and
years.
Tiktok met with people of thecommission on what is it were
later investigated.
There were investigations goingon for years and years and
years.
Tiktok met with people of thecommission on what is it the
commission on the foreigninvestments in US, different
(09:22):
things like this.
He wrote presidential ordersthat outlawed TikTok.
Those were later overturned,believe it or not, by the Biden
administration several yearslater.
So the arguments have been goingon for years.
The investigations they've beenmeeting weekly if not.
I mean monthly if not weekly.
There have been hundreds andhundreds of pages expanded.
(09:43):
There was like a 200-pageinvestigation where ByteDance
was agreeing to certainprotections.
They called it Project Texas,you can look it up.
They were agreeing to put incertain protections to protect
the data of Americans.
They called it Project Texas.
You can look it up.
They were agreeing to put incertain protections to protect
the data of Americans.
They were going to store thedata in a US company.
The foreign company would haveno access to it whatsoever.
(10:08):
So this has been going on forquite some time and it's telling
that the Senator Cantwell, whois the one that sponsored this
bill, is also the one sponsoringthe current proposed Federal
Privacy Act.
So one of the problems is thatthe US doesn't have a federal
privacy law.
We have sectoral laws in HIPAAfor health care, in FERPA for
(10:32):
education, in theGramm-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 goingto do it.
So there is one on the tablenow.
So the same Senator Cantwellthat sponsored that co-sponsored
it, also sponsored theseactions against TikTok this year
(10:52):
, but it wasn't going through.
It went through on an aid toforeign, 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 signedit into law.
It was interesting.
I was recording with my SiriusPrivacy last week with my
(11:16):
European co host and we weretalking about it and I went to
look it up and Biden signed itas we were recording the podcast
.
I'm like I don't even know ifBiden is going to sign this.
I mean, really, is he going todo this?
And then, bam, he signed itwhile we were actually recording
the podcast.
So it went through on a foreignaid bill.
It did not go through on thebill that was proposed for
(11:38):
TikTok itself, but if you readthrough the bill, there's also
laws against uranium, petroleumand products like that that are
also related to Chineseinterference.
So it's a really interestingbill when you go and read it.
But here's the thing.
So it's really interesting Billwhen you go and read it.
But here's the thing, thereason why everyone's up in arms
, and I'm going to be honest, Idon't think Congress did it
(12:00):
right.
They want to force ByteDance todivest itself of TikTok.
Now they're probably talkingabout TikTok Inc.
Which is incorporated inCalifornia.
They mean the platform.
So they want to force them todo it by January 25th or January
19th 2025.
It's nine months away.
They have a 90-day grace period.
(12:22):
How are they possibly going todo this?
They have to do it to aqualified buyer that has no
foreign influence or anythinglike that, or foreign control.
Beijing government has toapprove the bite dance sale.
If they're going to buy this,the Chinese government has to
approve it.
Do we really think that's goingto happen?
Attorney Bob Sewell (12:45):
No, no, no, but.
But I also wonder if theproblem with certainly I think
there's a.
Let me just back up.
There's obviously a problem ifChina's getting my data, and
especially if I'm a governmentworker or I'm a, if I'm a
(13:08):
defense contractor, and ifthey're going out.
And you know, and TikTok is oneof the smartest apps you've ever
used- and it's like it'sreading your mind, it's tracking
your eyes, it's seeing whatyou're looking at on the screen
and it's seeing how long you'refocusing on those things.
(13:30):
So it is one of the smartestapps that you've ever used.
So there's a problem on onelevel if China has it and who is
a geopolitical foe, and there'sanother problem if it's a
California company that justwants to mine me for profit.
K Royal (13:53):
Right, which we don't have any of those at all either.
Attorney Bob Sewell (13:56):
Yeah, we got those all over the place,
right, but?
Then, again, I don't know ifI'm completely comfortable with
the TikTok code, the code andwhat it's doing, and how is it
solved by?
How is the problem solved?
By just transferring the codeto a third party?
K Royal (14:17):
Exactly, exactly.
Attorney Bob Sewell (14:19):
That's what I'm concerned about.
K Royal (14:21):
That's what I'm worried about.
What do you think?
Not only that, but well, it's aproblem.
I mean, they're still going tohave the code.
And do we really believe thatthat code, in no way, form or
matter, is going to be sharedwith any type of subsidiaries or
people who are going to be ableto get the information anyway?
We can't control yeah, we can'tcontrol the flow of information
(14:44):
.
It's not like something visiblethat you can see that is going
outside the US.
It's not like mailing a letter.
This isn't Now.
They can monitor channels andthings like this, but I
guarantee you criminals aren'tnecessarily going to follow the
law.
So you can make it illegal forthem to do it, but that's the
very definition of a criminalRight.
They break the law.
(15:05):
So I don't see it's going tohappen.
Not to mention theconstitutional arguments, which
is what everyone's talking aboutBanning TikTok in the US or
saying it's a violation of theFirst Amendment, freedom of
speech.
Well, if it's dangerous to theUS, if it poses a significant
security concern, theyabsolutely can ban it.
(15:26):
They ban products all the timebecause they present a
significant safety risk topeople.
So this isn't much differentthan that.
I mean, there's the wholeconstitutional First Amendment
thing.
But really does that outweighthe national security?
So that in itself I'm going tolet the constitutional scholars
(15:47):
go figure out, and I am not oneof those but I think that one is
halfway defensible.
Congress says they have allkinds of investigations that
they've done that they have notdisclosed publicly.
That would support the factthat it is truly a national
security concern.
Think about it.
If you're a federal contractorand your kid has it on TikTok,
(16:09):
that's almost the same thing asyou having it.
It's in the house, it'slistening to you, it knows you
want tacos, it knows where tofind you.
But the forcing, the selling ofthe company, now, true, that's
kind of what the Committee onForeign Investments in the US is
kind of supposed to do, is makesure that we don't.
(16:30):
But I don't know that, sinceit's not a monopoly, that we
actually have the right to forcea company to sell.
Attorney Bob Sewell (16:41):
Let me ask you this If I am in huge favor
of owning TikTok not owningexcuse me using TikTok should I
be concerned?
K Royal (16:54):
No, I can't let it go.
Attorney Bob Sewell (16:59):
Yes, First of all, K, if I'm not doing a
TikTok dance once a day, my lifeis lost.
Right, I mean no, but people,they've developed their
businesses around TikTok.
K Royal (17:20):
Even lawyers.
Billions of dollars.
That's one of the things TikTokis arguing is there are
billions of dollars coming intoour economy by small businesses
in the US that are using TikToknot even just small businesses
big businesses that are using itto promote their business and
get visibility in front ofpeople.
Business and get visibility infront of people.
(17:43):
There was an issue aboutrecording artists pulling their
music from TikTok to being usedbecause they pay incredibly,
incredibly low percentages.
And then Taylor Swift came backon and said yes, they can use
my music, and it was the weekbefore she released her new
album.
So of course, other artistsfollowed there.
They have music from decadespast that have essentially been
favorites from those of us thatcome from the 70s and the 80s.
(18:06):
I'm not going to age myselftremendously.
I'm 85 and I look damn good formy age.
You're not 85.
That's my story and I'msticking to it.
But there's these old songsthat we love and now they are
revitalized on TikTok.
People are using them for theirmemes and their background.
(18:29):
The recording artists aregetting a lot more money now,
even though it's an incrediblysmall percentage, but because
their older music is nowfeatured on TikTok as well, so
it's a huge boon to economy andto people.
And there's people who maketheir living off being
influencers.
Their dogs make thousands andthousands of dollars on TikTok.
(18:51):
I follow a couple of.
I don't use TikTok, I use thefeed to Facebook, but there are
dogs and cats who've made tensand thousands, or not hundreds
of thousands, of dollars.
So is it going to really impactthe economy?
Yes, it will.
It absolutely will.
The American people as a wholewill rebel against this, but
(19:12):
they've already appealed it.
They've already filed theirlawsuit in the DC Court of
Appeals.
Now for people who may not know, any constitutional issue can
go straight to a federal courtof appeals.
That's where it goes Now.
The DC Court of Appeals is thehighest court for DC.
They just have the one level,their superior court, in the
(19:33):
Court of Appeals.
So they've already appealed itto the DC Court of Appeals.
Once that decision is made, thenit could be appealed to the US
Supreme Court, because that'sthe only court that sits over
the federal courts of appeals.
The US Supreme Court getsthousands and thousands of
requests, like six or seven or8,000 requests to review court
(19:55):
cases a year, and they only takeabout 150 to 200.
They only take about 150 to 200.
Now, for all of those, if therewere a petition for 8,000 and
they only took 7,750 out, that'sthat final decision.
For that 7,750 cases it's notgoing to go with.
Whatever the lower courtdecision was, it stands, supreme
(20:16):
Court's not going to take it.
So that's a final decision initself.
So this sale is not going to gothrough anyway because they're
going to keep appealing it andthen they got to appeal it to
the US Supreme Court.
They're not going to force thesale while it's waiting in court
for a hearing.
Attorney Bob Sewell (20:31):
Let me ask you.
We've talked about thechallenges in the law.
We've talked about the privacyconcerns with TikTok.
We've talked about the privacyconcerns with TikTok.
There's no way getting you knowI cannot use the links, right.
Right, that would protect me.
Behave yourself.
You know, I could behave myselfon TikTok and that would
protect me.
(20:51):
I could limit the amount of useif I or I could not use it,
obviously, but I'm going to haveprivacy issues by using any
social media and especiallyTikTok.
Yes, so let's talk about themagic.
It's magic wand time.
Okay, kay, yes, okay, I love it.
(21:11):
You're going to tell thosecongressional dudes and dudettes
exactly how to fix this problem.
Okay, you know, wave the magicwand on what are you going to
tell?
What should have?
Congress have passed.
K Royal (21:31):
Oh my goodness, this is absolutely crazy.
I think the banning is a lotbetter than anything else, but I
think what needs to come firstis a federal privacy law.
We can't get Congress to passone because they don't
understand the implications ofdata use.
(21:52):
People hear privacy and theythink they know what it means.
They don't understand thatbehind the scenes, that's the
tracking data, that's themassive amounts of tracking and
cookies and consents andsecondary uses of data and
further uses of data and sharingdata in other places.
The only way to control that isto pass a law to stop it.
(22:12):
So the first step is a federalprivacy law, and it needs to be
one that has teeth.
You can't pass a weak law andexpect it to have any impact.
We now have 18 states that havepassed an omnibus privacy law,
california being the first one,followed swiftly by Connecticut
(22:34):
and Colorado and Virginia andUtah, who all went into effect
already.
You've got Oregon that justwent into effect this year.
You've got others packed upbehind it.
I didn't expect to see statespass omnibus privacy laws, and
omnibus simply means it appliesto all data.
(22:54):
So, where we said earlier,hipaa applies to health data,
ferpa applies to education data.
These state laws apply to alldata, not health data and
education all data.
California is the only one thatset up a privacy agency, so I
faintly think there needs to bea very, very strong federal
privacy law.
It needs to create an agencywith the power to oversee
(23:18):
privacy.
The FTC is doing a darn goodjob on what it was authorized to
do, but it wasn't authorized tooversee privacy.
That kind of comes from a sideeffect of deceptive and unfair
trade practices, so they need topass a very strong privacy law.
It's not going to pass becauseCalifornia has a right to sue
(23:42):
people or sue companies if theyhave a breach.
How many breaches do we have?
Tons and tons and tons ofbreaches and you can't punish
the companies because you can'tsue for a breach unless you've
been harmed.
And how do you prove that thisharm is the one?
This breach is the one thatcaused the harm, not those other
50,000 breaches I've been in?
So it's hard to do it.
(24:04):
So California gave a right tosue companies if they have a
breach and you don't have toprove harm.
And that's what's holding up afederal law is the right to sue
for a privacy breach, as well aspreemption of state laws.
The state laws don't want to bepreempted.
They passed what they passed.
We now have 18 states withstate laws.
The state laws don't want to bepreempted.
(24:25):
They passed what they passed.
We now have 18 states withprivacy laws.
Not all of them are in effectyet, but they've been passed.
There's still more passing thisyear.
We've already had four passedthis year.
I was completely flabbergastedwith that.
So that's my advice to CongressGet off your butts and pass a
strong privacy law.
Then you can start addressingmedia companies.
Attorney Bob Sewell (24:44):
I love it.
K, thanks for coming on theshow.
K Royal (24:48):
My pleasure.
Thank you so much for having meback.
I really appreciate it.
Always a pleasure to chat.
Attorney Bob Sewell (24:54):
Thanks for listening to the podcast Is that
Even Legal is now listened to ahundred countries and available
on virtually all podcastplatforms.
Leave us a review, send us someshow ideas and do so at
producer at even legalcom.
Don't forget, as smart as wesound and as lovable as we are,
(25:15):
we are not your lawyers and weare not giving you legal advice.
But if you need some legaladvice, get some.
There are some great lawyersout there and we are always
ready to help.
See you next time.
Is that even legal?
It's a question we askourselves on a daily basis.
We ask it about our neighbors,we ask it about our elected
officials, we ask it about ourfamily and sometimes we ask it
to ourselves.
The law is complex and itimpacts everyone all the time,
and that's why we are here.
I'm attorney Bob Sewell andthis is season five of the
(00:26):
Worldwide Podcast that exploresthat 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 privacyissues.
She practices globally, she hasinterests of multinationals on
(00:49):
her mind all the time and shehas interests of local people
who are struggling with privacyissues.
Now, kay, welcome to the showagain.
K Royal (01:02):
Thank you for having me back.
I appreciate it.
Attorney Bob Sewell (01:04):
Thank you for having me back.
I appreciate it.
Last time we had you on, wewere talking about privacy
(01:31):
issues and I was freaking outbecause when I'm going downtown
and I've got tacos on my mindand suddenly I'm getting
advertisements for tacos and Ican't handle this.
It's freaking me out.
But recently there has beensome TikTok drama, okay, and
it's flaring up in the Congressand it's not something I know a
tremendous amount about, whichis why I want you on to talk to
you about it.
I want to tell you about myproblem with TikTok, though.
My problem with TikTok is, yes,I tried it out and I was like
(01:54):
addicted in, like the first hourof 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 fallingdown and the physical comedy.
I love all that stuff.
And the next thing, you know,and it knows me so fast.
(02:17):
Yes, yes that during lunchtime Iwant to see comedy and, it
knows, at the nighttime I wantto see MMA and whatever else is
you know, floating around mybrain and it really freaked me
out how fast it knew me.
K Royal (02:40):
Well, that's one of the problems with TikTok is that
quite often that's what theusers say is TikTok knows me
better than I know myself.
Attorney Bob Sewell (02:50):
Yeah, and I just, and I just said I can't
deal with this and I turned itoff.
I mean, I'm not, I'm not joking, it's like this is.
This is not good for me and Ileft it.
Yeah.
K Royal (03:02):
But well, there's actually the basis of a lot of
complaint that a lot ofgovernment and states actually
have against TikTok is howaddictive it is for teenagers
and for young adults, and thereare laws that are restricting
social media to only a certainnumber of hours a day, whether
it's TikTok or other socialmedia, because of the
(03:23):
devastating mental implicationsit's having, especially on
teenagers.
If you remember being ateenager going through school
and how brutal that was, imagineit being online across the web.
So that's one of the thingsabout TikTok.
But, to be honest, I used tosay that I'm not going to knock
something until I try it.
That's why I don't talk badabout golf.
(03:44):
I've never tried it.
So I'm not going to knocksomething until I try it.
That's why I don't talk badabout golf.
I've never tried it, so I'm notgoing to knock it.
But there are some things youdon't have to try yourself to
know they're bad.
For example, I'll never trycocaine.
I know it's bad, I'm not goingto do it.
So TikTok to me is like thatKnowing what I do about privacy
and how companies handle data,I'm not going to try TikTok Now.
(04:12):
I love my social media.
I'm probably the most activepersonal social media you'll
ever find in the privacycommunity.
I love social media.
Matter of fact, I had to getoff Twitter though you know I
don't even go on X anymore.
That's just not a thing butwith TikTok, is it a problem?
Yes, it is.
Now there's a lot of evidencethat the government has found
about the activities of TikTok,because it is owned by a company
(04:34):
based out of China.
I think technically they'rebased out of the Cayman Islands,
but the people who own itactually live in China.
This algorithm you talk about,how it knows you better and you
know yourself, is a very, verypowerful algorithm.
Tiktok actually, at some pointback in 2017, I think, bought
(05:01):
the app Musically.
It was a pretty popular app.
People enjoyed it, but theyfound that the algorithm that
Musically had was far inferiorto the algorithm that they had
developed for other platformsToto, which I think was a news
platform.
Duyen, which I think was avideo platform.
(05:23):
Different things.
They had honed this algorithmover years, so they essentially
threw out Musically's backgroundand replaced it with their
algorithm, and TikTok has beenthe fastest growing social media
in 2020, 2021, 2022, 2023.
It's everywhere.
Now here's the thing somethinglike 30 countries around the
(05:45):
world have banned TikTok atvarious levels.
Most of them ban it for usewith government employees.
So public public interestcompanies, government employees
they've banned it for all thefederal employees.
They've even advised that theseemployees need to remove it
from their personal devices aswell, not just their work
(06:07):
devices.
So the US isn't the onlycountry that has a problem with
TikTok.
Now, one of the things that Iheard about TikTok years ago and
I believe it because it camefrom someone that used to work
with one of those multi-letteralphabet agencies that does
research is when you click on alink in TikTok, it does not open
(06:31):
in a separate browser.
It looks like it does, but itactually opens the browser in
TikTok and everything you dofrom that point forward.
Even if you go away from yourphone and come back and open up
that browser you had open,they're logging your keystrokes,
so your username and yourpasswords and everything for any
(06:54):
account that you access throughthat browser.
I believe it.
Like I said, I believe theperson who gave me the
information and so to me thatjust right there said no, any
(07:18):
company that is going to designtheir software to do that cannot
be trusted.
Now add to the fact that thecompany is owned out of China
and that the government in Chinahas ByteDance, the parent
company of TikTok and theiralgorithm, listed as one of
their special export controlsthat they have control over.
That makes it even moredangerous.
Attorney Bob Sewell (07:33):
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 toXYZ and a business application
after after playing around withTikTok, I got a lot of privacy
(07:56):
issues from my clients.
I'm protecting.
K Royal (07:59):
Yeah, our whole lives are on these things.
Attorney Bob Sewell (08:03):
I don't do that for my clients.
I protect my clients' data, butif I was that type of guy, that
would be a problem.
What's Congress?
Why is Congress freaking out?
What are they freaking outabout?
K Royal (08:19):
Here's the thing They've been freaking out for a
long time.
Let's be honest, I believe theyhad started doing
investigations back in, like the2018, 2019, but, believe it or
not, and most people aren'ttying this back during the
presidential campaigns in 2020,there was a rally for the
(08:40):
sitting president that wasembarrassingly low attended had
told all of their fans andlisteners not to show up at the
rally.
Well, that really irritated thesitting president at the time
(09:02):
and so he started actions to banTikTok, and I mean we're
talking significant actions Now.
These actions were laterinvestigated.
There were investigations goingon for years and years and
years.
Tiktok met with people of thecommission on what is it were
later investigated.
There were investigations goingon for years and years and
years.
Tiktok met with people of thecommission on what is it the
commission on the foreigninvestments in US, different
(09:22):
things like this.
He wrote presidential ordersthat outlawed TikTok.
Those were later overturned,believe it or not, by the Biden
administration several yearslater.
So the arguments have been goingon for years.
The investigations they've beenmeeting weekly if not.
I mean monthly if not weekly.
There have been hundreds andhundreds of pages expanded.
(09:43):
There was like a 200-pageinvestigation where ByteDance
was agreeing to certainprotections.
They called it Project Texas,you can look it up.
They were agreeing to put incertain protections to protect
the data of Americans.
They called it Project Texas.
You can look it up.
They were agreeing to put incertain protections to protect
the data of Americans.
They were going to store thedata in a US company.
The foreign company would haveno access to it whatsoever.
(10:08):
So this has been going on forquite some time and it's telling
that the Senator Cantwell, whois the one that sponsored this
bill, is also the one sponsoringthe current proposed Federal
Privacy Act.
So one of the problems is thatthe US doesn't have a federal
privacy law.
We have sectoral laws in HIPAAfor health care, in FERPA for
(10:32):
education, in theGramm-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 goingto do it.
So there is one on the tablenow.
So the same Senator Cantwellthat sponsored that co-sponsored
it, also sponsored theseactions against TikTok this year
(10:52):
, but it wasn't going through.
It went through on an aid toforeign, 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 signedit into law.
It was interesting.
I was recording with my SiriusPrivacy last week with my
(11:16):
European co host and we weretalking about it and I went to
look it up and Biden signed itas we were recording the podcast
.
I'm like I don't even know ifBiden is going to sign this.
I mean, really, is he going todo this?
And then, bam, he signed itwhile we were actually recording
the podcast.
So it went through on a foreignaid bill.
It did not go through on thebill that was proposed for
(11:38):
TikTok itself, but if you readthrough the bill, there's also
laws against uranium, petroleumand products like that that are
also related to Chineseinterference.
So it's a really interestingbill when you go and read it.
But here's the thing.
So it's really interesting Billwhen you go and read it.
But here's the thing, thereason why everyone's up in arms
, and I'm going to be honest, Idon't think Congress did it
(12:00):
right.
They want to force ByteDance todivest itself of TikTok.
Now they're probably talkingabout TikTok Inc.
Which is incorporated inCalifornia.
They mean the platform.
So they want to force them todo it by January 25th or January
19th 2025.
It's nine months away.
They have a 90-day grace period.
(12:22):
How are they possibly going todo this?
They have to do it to aqualified buyer that has no
foreign influence or anythinglike that, or foreign control.
Beijing government has toapprove the bite dance sale.
If they're going to buy this,the Chinese government has to
approve it.
Do we really think that's goingto happen?
Attorney Bob Sewell (12:45):
No, no, no, but.
But I also wonder if theproblem with certainly I think
there's a.
Let me just back up.
There's obviously a problem ifChina's getting my data, and
especially if I'm a governmentworker or I'm a, if I'm a
(13:08):
defense contractor, and ifthey're going out.
And you know, and TikTok is oneof the smartest apps you've ever
used- and it's like it'sreading your mind, it's tracking
your eyes, it's seeing whatyou're looking at on the screen
and it's seeing how long you'refocusing on those things.
(13:30):
So it is one of the smartestapps that you've ever used.
So there's a problem on onelevel if China has it and who is
a geopolitical foe, and there'sanother problem if it's a
California company that justwants to mine me for profit.
K Royal (13:53):
Right, which we don't have any of those at all either.
Attorney Bob Sewell (13:56):
Yeah, we got those all over the place,
right, but?
Then, again, I don't know ifI'm completely comfortable with
the TikTok code, the code andwhat it's doing, and how is it
solved by?
How is the problem solved?
By just transferring the codeto a third party?
K Royal (14:17):
Exactly, exactly.
Attorney Bob Sewell (14:19):
That's what I'm concerned about.
K Royal (14:21):
That's what I'm worried about.
What do you think?
Not only that, but well, it's aproblem.
I mean, they're still going tohave the code.
And do we really believe thatthat code, in no way, form or
matter, is going to be sharedwith any type of subsidiaries or
people who are going to be ableto get the information anyway?
We can't control yeah, we can'tcontrol the flow of information
(14:44):
.
It's not like something visiblethat you can see that is going
outside the US.
It's not like mailing a letter.
This isn't Now.
They can monitor channels andthings like this, but I
guarantee you criminals aren'tnecessarily going to follow the
law.
So you can make it illegal forthem to do it, but that's the
very definition of a criminalRight.
They break the law.
(15:05):
So I don't see it's going tohappen.
Not to mention theconstitutional arguments, which
is what everyone's talking aboutBanning TikTok in the US or
saying it's a violation of theFirst Amendment, freedom of
speech.
Well, if it's dangerous to theUS, if it poses a significant
security concern, theyabsolutely can ban it.
(15:26):
They ban products all the timebecause they present a
significant safety risk topeople.
So this isn't much differentthan that.
I mean, there's the wholeconstitutional First Amendment
thing.
But really does that outweighthe national security?
So that in itself I'm going tolet the constitutional scholars
(15:47):
go figure out, and I am not oneof those but I think that one is
halfway defensible.
Congress says they have allkinds of investigations that
they've done that they have notdisclosed publicly.
That would support the factthat it is truly a national
security concern.
Think about it.
If you're a federal contractorand your kid has it on TikTok,
(16:09):
that's almost the same thing asyou having it.
It's in the house, it'slistening to you, it knows you
want tacos, it knows where tofind you.
But the forcing, the selling ofthe company, now, true, that's
kind of what the Committee onForeign Investments in the US is
kind of supposed to do, is makesure that we don't.
(16:30):
But I don't know that, sinceit's not a monopoly, that we
actually have the right to forcea company to sell.
Attorney Bob Sewell (16:41):
Let me ask you this If I am in huge favor
of owning TikTok not owningexcuse me using TikTok should I
be concerned?
K Royal (16:54):
No, I can't let it go.
Attorney Bob Sewell (16:59):
Yes, First of all, K, if I'm not doing a
TikTok dance once a day, my lifeis lost.
Right, I mean no, but people,they've developed their
businesses around TikTok.
K Royal (17:20):
Even lawyers.
Billions of dollars.
That's one of the things TikTokis arguing is there are
billions of dollars coming intoour economy by small businesses
in the US that are using TikToknot even just small businesses
big businesses that are using itto promote their business and
get visibility in front ofpeople.
Business and get visibility infront of people.
(17:43):
There was an issue aboutrecording artists pulling their
music from TikTok to being usedbecause they pay incredibly,
incredibly low percentages.
And then Taylor Swift came backon and said yes, they can use
my music, and it was the weekbefore she released her new
album.
So of course, other artistsfollowed there.
They have music from decadespast that have essentially been
favorites from those of us thatcome from the 70s and the 80s.
(18:06):
I'm not going to age myselftremendously.
I'm 85 and I look damn good formy age.
You're not 85.
That's my story and I'msticking to it.
But there's these old songsthat we love and now they are
revitalized on TikTok.
People are using them for theirmemes and their background.
(18:29):
The recording artists aregetting a lot more money now,
even though it's an incrediblysmall percentage, but because
their older music is nowfeatured on TikTok as well, so
it's a huge boon to economy andto people.
And there's people who maketheir living off being
influencers.
Their dogs make thousands andthousands of dollars on TikTok.
(18:51):
I follow a couple of.
I don't use TikTok, I use thefeed to Facebook, but there are
dogs and cats who've made tensand thousands, or not hundreds
of thousands, of dollars.
So is it going to really impactthe economy?
Yes, it will.
It absolutely will.
The American people as a wholewill rebel against this, but
(19:12):
they've already appealed it.
They've already filed theirlawsuit in the DC Court of
Appeals.
Now for people who may not know, any constitutional issue can
go straight to a federal courtof appeals.
That's where it goes Now.
The DC Court of Appeals is thehighest court for DC.
They just have the one level,their superior court, in the
(19:33):
Court of Appeals.
So they've already appealed itto the DC Court of Appeals.
Once that decision is made, thenit could be appealed to the US
Supreme Court, because that'sthe only court that sits over
the federal courts of appeals.
The US Supreme Court getsthousands and thousands of
requests, like six or seven or8,000 requests to review court
(19:55):
cases a year, and they only takeabout 150 to 200.
They only take about 150 to 200.
Now, for all of those, if therewere a petition for 8,000 and
they only took 7,750 out, that'sthat final decision.
For that 7,750 cases it's notgoing to go with.
Whatever the lower courtdecision was, it stands, supreme
(20:16):
Court's not going to take it.
So that's a final decision initself.
So this sale is not going to gothrough anyway because they're
going to keep appealing it andthen they got to appeal it to
the US Supreme Court.
They're not going to force thesale while it's waiting in court
for a hearing.
Attorney Bob Sewell (20:31):
Let me ask you.
We've talked about thechallenges in the law.
We've talked about the privacyconcerns with TikTok.
We've talked about the privacyconcerns with TikTok.
There's no way getting you knowI cannot use the links, right.
Right, that would protect me.
Behave yourself.
You know, I could behave myselfon TikTok and that would
protect me.
(20:51):
I could limit the amount of useif I or I could not use it,
obviously, but I'm going to haveprivacy issues by using any
social media and especiallyTikTok.
Yes, so let's talk about themagic.
It's magic wand time.
Okay, kay, yes, okay, I love it.
(21:11):
You're going to tell thosecongressional dudes and dudettes
exactly how to fix this problem.
Okay, you know, wave the magicwand on what are you going to
tell?
What should have?
Congress have passed.
K Royal (21:31):
Oh my goodness, this is absolutely crazy.
I think the banning is a lotbetter than anything else, but I
think what needs to come firstis a federal privacy law.
We can't get Congress to passone because they don't
understand the implications ofdata use.
(21:52):
People hear privacy and theythink they know what it means.
They don't understand thatbehind the scenes, that's the
tracking data, that's themassive amounts of tracking and
cookies and consents andsecondary uses of data and
further uses of data and sharingdata in other places.
The only way to control that isto pass a law to stop it.
(22:12):
So the first step is a federalprivacy law, and it needs to be
one that has teeth.
You can't pass a weak law andexpect it to have any impact.
We now have 18 states that havepassed an omnibus privacy law,
california being the first one,followed swiftly by Connecticut
(22:34):
and Colorado and Virginia andUtah, who all went into effect
already.
You've got Oregon that justwent into effect this year.
You've got others packed upbehind it.
I didn't expect to see statespass omnibus privacy laws, and
omnibus simply means it appliesto all data.
(22:54):
So, where we said earlier,hipaa applies to health data,
ferpa applies to education data.
These state laws apply to alldata, not health data and
education all data.
California is the only one thatset up a privacy agency, so I
faintly think there needs to bea very, very strong federal
privacy law.
It needs to create an agencywith the power to oversee
(23:18):
privacy.
The FTC is doing a darn goodjob on what it was authorized to
do, but it wasn't authorized tooversee privacy.
That kind of comes from a sideeffect of deceptive and unfair
trade practices, so they need topass a very strong privacy law.
It's not going to pass becauseCalifornia has a right to sue
(23:42):
people or sue companies if theyhave a breach.
How many breaches do we have?
Tons and tons and tons ofbreaches and you can't punish
the companies because you can'tsue for a breach unless you've
been harmed.
And how do you prove that thisharm is the one?
This breach is the one thatcaused the harm, not those other
50,000 breaches I've been in?
So it's hard to do it.
(24:04):
So California gave a right tosue companies if they have a
breach and you don't have toprove harm.
And that's what's holding up afederal law is the right to sue
for a privacy breach, as well aspreemption of state laws.
The state laws don't want to bepreempted.
They passed what they passed.
We now have 18 states withstate laws.
The state laws don't want to bepreempted.
(24:25):
They passed what they passed.
We now have 18 states withprivacy laws.
Not all of them are in effectyet, but they've been passed.
There's still more passing thisyear.
We've already had four passedthis year.
I was completely flabbergastedwith that.
So that's my advice to CongressGet off your butts and pass a
strong privacy law.
Then you can start addressingmedia companies.
Attorney Bob Sewell (24:44):
I love it.
K, thanks for coming on theshow.
K Royal (24:48):
My pleasure.
Thank you so much for having meback.
I really appreciate it.
Always a pleasure to chat.
Attorney Bob Sewell (24:54):
Thanks for listening to the podcast Is that
Even Legal is now listened to ahundred countries and available
on virtually all podcastplatforms.
Leave us a review, send us someshow ideas and do so at
producer at even legalcom.
Don't forget, as smart as wesound and as lovable as we are,
(25:15):
we are not your lawyers and weare not giving you legal advice.
But if you need some legaladvice, get some.
There are some great lawyersout there and we are always
ready to help.
See you next time.
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