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In just one year, TikTok was sued by the U.S. Government, Attorney Generals (“AG”) for over a dozen States, private citizens, and was just banned from business operations in Canada. Each of these events adds pressure to the January 19, 2025, deadline set by the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which ordered ByteDance, TikTok’s parent company, to either sell TikTok or be banned in the United States.
State AGs File Suit
On October 8, 2024, fourteen AGs sued TikTok, in their respective states, alleging that TikTok violates state laws by falsely claiming its service is safe for children. The lawsuits each focus on the “dark patterns” employed by TikTok to keep young users addicted to the app and scrolling as long as possible. In the New Jersey Complaint, the state alleges that “52% of girls said they use image filters every day, and 80% used a social media platform to change their appearance before the age of thirteen.”
Other features like the infinite scroll, pre-loaded content, and algorithms that facilitate addictive content distribution are all cited as problems with the platform. Push notifications, which the TikTok app sends to the users’ phone inviting them to engage with content on the platform, are also under fire for encouraging children to come back to the app and spend more scrolling through content. Many push notifications abuse age-old manipulation tactics, such as suggesting if the user does not view the live content now, they will miss out on something they cannot see later.
These suits generally allege violations of some kind of unfair trade practice, such as Louisiana’s complaint which alleges ten different counts violating the Louisiana Unfair Trade Practices and Consumer Protection Law.[1]
The Federal Government Sues TikTok
On August 2, 2024, the United States sued TikTok in the Central District of California, alleging TikTok was in violation of the Children’s Online Privacy Protection Act (“COPPA”) and the Children’s Online Privacy Protection Rule (“COPPA Rule”). The suit further alleges a violation of a 2019 Injunction that required TikTok to retain certain records related to compliance with the COPPA Rule.
The U.S. alleges that by allowing children to evade or bypass TikTok’s age gate, TikTok failed to comply with COPPA for accounts in kids’ mode. Additional alleged failures included TikTok’s refusal/inability to: (1) honor parents’ requests to delete their children’s accounts and data: (2) delete children's accounts and information identified by their own system and employees. Documents supporting the U.S. Government’s claims were filed “under seal” meaning that they are not available to the public, which is a rare occurrence. TikTok is yet to answer the complaint.
Private Litigation
Previously mentioned in this blog, the Third Circuit rejected precedent often immunizing social media platforms for dangerous content, [2] allowing TikTok to be found liable for the death of a ten-year-old girl who participated in the “blackout challenge.”
Nylah Anderson, the child that tragically passed away, came upon a post on her personally curated TikTok “for you page,” encouraging users to record themselves in acts of self-asphyxiation.[3] The Court found that “TikTok's FYP algorithm decides on the third-party speech that will be included in or excluded from a compilation—and then organizes and presents the included items on users' FYPs. Accordingly, TikTok's algorithm, which recommended the Blackout Challenge to Nylah on her FYP, was TikTok's own expressive activity, and thus its first-party speech”[4]
The resolution of this case will send shockwaves not only to TikTok, but also any social media platform that uses curated algorithms to suggest content to their users. However, this ruling, while potentially ruinous for TikTok’s business model, is still not the biggest of their issues, as their impending U.S. ban looms on the horizon.
Banned in Canada
On November 6, 2024, Canada ordered TikTok's business in their country to be dissolved, citing national-security risks. TikTok currently operates two offices in Canada, and both offices, if this order survives the incoming legal challenges from TikTok, will be forced to shut down. Canada is not seeking to block the app from Canadian users, simply cautioning their citizens of the risks associated with using the application.
TikTok responded to the dissolution of their Canadian wing, stating that “Shutting down TikTok’s Canadian offices and destroying hundreds of well-paying local jobs is not in anyone's best interest, and today's shutdown order will do just that. We will challenge this order in court.”
The Impending Ban
On April 24, 2024, President Biden signed a bill that would ban TikTok if ByteDance did not sell the platform within nine months to a U.S. based buyer. The bill also provides for a potential three-month extension if the President is satisfied with the progress of the efforts to sell the platform.
In response, on May 7, 2024, TikTok sued the federal government, claiming the ban was unconstitutional. On June 27, an Amicus Brief was filed in support of TikTok. The Electronic Frontier Foundation, Freedom of the Press Foundation, The Cato Institute, and many more organizations joined in TikTok’s effort to fight what they felt was a First Amendment violation. On September 16, 2024, the parties presented oral argument to the United States Court of Appeals, District of Columbia. The case is still pending a decision, but if TikTok loses, the ban will go into effect on January 19, 2025.
TikTok’s Future in The United States
As TikTok faces mounting litigation and regulation from all fronts, it seems more and more likely that very soon, a platform that more than 35% of all Americans use will be banned. For TikTok users, alternatives like Instagram Reels and YouTube shorts will likely replace TikTok. However, for any business owners who leverage TikTok for online traffic, they should look to pivot sooner rather than later.
[1] La. R.S. 51 :1402
[2] 47 U.S.C. § 230
[3] Anderson v. TikTok, Inc., No. 22-3061, 2024 WL 3948248, at *1 (3d Cir. Aug. 27, 2024).
[4] Id.
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