1
00:00:03,080 --> 00:00:08,280
Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

2
00:00:09,240 --> 00:00:12,600
Speaker 1: The American Bar Association is calling for the Supreme Court

3
00:00:12,640 --> 00:00:16,240
Speaker 1: to adopt the Judicial Ethics Code as the Court faces

4
00:00:16,360 --> 00:00:21,560
Speaker 1: plummeting public opinion, an unresolved leak investigation, and a wave

5
00:00:21,600 --> 00:00:25,160
Speaker 1: of ethics concerns, none of which the Chief Justice has

6
00:00:25,200 --> 00:00:29,200
Speaker 1: addressed head on. Chief Justice John Roberts has spoken only

7
00:00:29,280 --> 00:00:33,440
Speaker 1: twice publicly in the past year, behind closed door audiences

8
00:00:33,479 --> 00:00:37,400
Speaker 1: of fellow judges, lawyers, and judicial staff at Federal Circuit

9
00:00:37,440 --> 00:00:41,040
Speaker 1: Court conferences. The only reference he made to the public

10
00:00:41,080 --> 00:00:44,440
Speaker 1: disapproval of the Court was to say that Supreme Court

11
00:00:44,520 --> 00:00:50,200
Speaker 1: decisions and controversial cases have always been subject to intense criticism,

12
00:00:50,240 --> 00:00:53,240
Speaker 1: but it's a mistake to call into question the legitimacy

13
00:00:53,280 --> 00:00:58,280
Speaker 1: of the Court. The legitimacy of the Court rests on

14
00:00:58,360 --> 00:01:01,480
Speaker 1: the fact that it satisfies the requirements of the of

15
00:01:01,520 --> 00:01:07,120
Speaker 1: the Statute and that the Constitution needs, as John Marshall

16
00:01:07,160 --> 00:01:09,680
Speaker 1: put it, somebody to say what the law is, and

17
00:01:09,760 --> 00:01:13,640
Speaker 1: that's the role of the Supreme Court. I don't understand

18
00:01:13,680 --> 00:01:18,520
Speaker 1: the connection between opinions that people disagree with and the

19
00:01:18,640 --> 00:01:23,240
Speaker 1: legitimacy of the Court if the Court doesn't retain its

20
00:01:23,319 --> 00:01:27,480
Speaker 1: legitimate function of interpreting the Constitution, I'm not sure who

21
00:01:27,480 --> 00:01:31,959
Speaker 1: would joining me is an expert in constitutional law, David Super,

22
00:01:32,120 --> 00:01:35,720
Speaker 1: a professor at Georgetown Law School. How would you describe

23
00:01:35,800 --> 00:01:42,160
Speaker 1: the Chief Justice's response to the unresolved lead investigation, the

24
00:01:42,280 --> 00:01:46,319
Speaker 1: ethics concerns raised about Justice Thomas, his wife, and the

25
00:01:46,400 --> 00:01:49,680
Speaker 1: low public approval of the court. I think the Chief

26
00:01:49,760 --> 00:01:52,640
Speaker 1: Justice is trying to keep all of these things in

27
00:01:52,800 --> 00:01:58,640
Speaker 1: house with the Court and avoid public scrutiny and criticism.

28
00:01:58,960 --> 00:02:03,720
Speaker 1: Is strategy seems to be focused largely on public perception

29
00:02:04,040 --> 00:02:07,840
Speaker 1: rather than on getting at the underlying problems. Roberts has said,

30
00:02:07,880 --> 00:02:11,760
Speaker 1: timing again that the Court isn't political. It exists separate

31
00:02:11,800 --> 00:02:15,800
Speaker 1: from the political branches. But it seems like the Court

32
00:02:15,840 --> 00:02:20,240
Speaker 1: has become political in the way it makes decisions recently.

33
00:02:21,000 --> 00:02:24,399
Speaker 1: Is that something that he should address. I'm not sure

34
00:02:24,440 --> 00:02:27,960
Speaker 1: that there's much he can do. It is in his

35
00:02:28,080 --> 00:02:33,799
Speaker 1: interest to have the Court regarded as being above politics,

36
00:02:33,800 --> 00:02:36,840
Speaker 1: so he's going to keep saying that. But the fact

37
00:02:37,000 --> 00:02:40,680
Speaker 1: is that at least five of the justices are voting

38
00:02:40,720 --> 00:02:47,799
Speaker 1: pretty consistently along ideological lines and disregarding precedents, indeed disregarding

39
00:02:48,040 --> 00:02:51,320
Speaker 1: some of their own precedent when the implications affect their

40
00:02:51,360 --> 00:02:55,120
Speaker 1: political preferences in different ways. There's nothing that the Chief

41
00:02:55,160 --> 00:02:58,720
Speaker 1: Justice can do to obscure that fact. The most he

42
00:02:58,760 --> 00:03:02,800
Speaker 1: can do is against Some of them are politicized decisions,

43
00:03:02,800 --> 00:03:07,320
Speaker 1: which he has, but his vote doesn't matter. I remember

44
00:03:07,760 --> 00:03:14,200
Speaker 1: back in after former President Trump called judges partisan, Roberts

45
00:03:14,240 --> 00:03:16,280
Speaker 1: did speak out and he said, you know, they're not

46
00:03:16,360 --> 00:03:20,400
Speaker 1: Obama judges or Trump judges, so why wouldn't he do

47
00:03:20,520 --> 00:03:24,120
Speaker 1: something similar now when you know public approval of the

48
00:03:24,160 --> 00:03:28,160
Speaker 1: Court is so low and there are so many issues

49
00:03:28,240 --> 00:03:32,480
Speaker 1: surrounding the Court outside of the decisions that it makes.

50
00:03:32,520 --> 00:03:35,320
Speaker 1: Because he can't do very much about them. The only

51
00:03:35,360 --> 00:03:38,600
Speaker 1: people he's really accountable to are the other eight justices,

52
00:03:39,400 --> 00:03:45,440
Speaker 1: and they're not supportive of his doing the kinds of

53
00:03:45,480 --> 00:03:48,480
Speaker 1: things that would take to resolve these questions. One of

54
00:03:48,560 --> 00:03:53,800
Speaker 1: them either leaked the opinion or likely has staff who

55
00:03:53,840 --> 00:03:57,360
Speaker 1: did and may be aware of that. He certainly isn't

56
00:03:57,400 --> 00:04:05,640
Speaker 1: going to get support for exposing that from the guilty party.

57
00:04:06,120 --> 00:04:10,760
Speaker 1: He did as much of an investigation as he could

58
00:04:11,840 --> 00:04:16,320
Speaker 1: without going outside of the building or ruffling the justices

59
00:04:16,400 --> 00:04:20,480
Speaker 1: feathers on the ethics matter. There have been ethics issues

60
00:04:20,640 --> 00:04:25,120
Speaker 1: raised before about justices, and there is not an effective

61
00:04:25,120 --> 00:04:28,480
Speaker 1: outside means of a drafting it. Unless it rises to

62
00:04:28,560 --> 00:04:32,360
Speaker 1: the level that the other justices are themselves willing to

63
00:04:32,640 --> 00:04:35,960
Speaker 1: take action against one of their own, which is very rare,

64
00:04:36,320 --> 00:04:38,880
Speaker 1: then he doesn't have much leverage there either. Is the

65
00:04:38,920 --> 00:04:42,440
Speaker 1: way he handled the leak investigation sort of symptomatic of

66
00:04:42,520 --> 00:04:47,120
Speaker 1: his approach. He had someone inside the court investigate instead of,

67
00:04:47,120 --> 00:04:50,320
Speaker 1: as you mentioned, outside agency like the FBI, so he

68
00:04:50,360 --> 00:04:53,679
Speaker 1: could control it. And I wonder if he really wanted

69
00:04:53,760 --> 00:04:57,000
Speaker 1: to find out who leaked the draft opinion, or if

70
00:04:57,360 --> 00:05:00,800
Speaker 1: in fact he did find out and just hasn't told us.

71
00:05:01,040 --> 00:05:05,159
Speaker 1: I would be surprised if his bad faith rose to

72
00:05:05,279 --> 00:05:08,800
Speaker 1: that level. I think he wanted to find out, but

73
00:05:08,880 --> 00:05:15,919
Speaker 1: not so badly as to anger other justices. So, for example,

74
00:05:15,960 --> 00:05:19,919
Speaker 1: it appears the investigation only looked at them, not justices,

75
00:05:20,080 --> 00:05:24,440
Speaker 1: and to look at justices would create a lot of

76
00:05:24,680 --> 00:05:29,200
Speaker 1: unpleasantness and discomfort within the nine, and he was unwilling

77
00:05:29,240 --> 00:05:32,280
Speaker 1: to do that. If, as many people are speculated, the

78
00:05:32,400 --> 00:05:35,359
Speaker 1: leak was by a justice, then this isn't going to

79
00:05:35,400 --> 00:05:38,240
Speaker 1: find it because he was only looking at people who

80
00:05:38,279 --> 00:05:41,920
Speaker 1: worked justices. I think he found a staff member who

81
00:05:42,000 --> 00:05:44,560
Speaker 1: leaked it. He probably would have released that. But my

82
00:05:44,760 --> 00:05:48,160
Speaker 1: suspicion from this is that the leak was a justice,

83
00:05:48,440 --> 00:05:52,400
Speaker 1: and he's not prepared to deal with the blowback that

84
00:05:52,440 --> 00:05:54,839
Speaker 1: he would get from exposing such a justice if he

85
00:05:54,880 --> 00:05:57,599
Speaker 1: knows who it was. Some of the justices seem to

86
00:05:57,640 --> 00:06:01,640
Speaker 1: be having a sort of debate in public by responding

87
00:06:01,720 --> 00:06:05,320
Speaker 1: to what others have said in their public appearances. So

88
00:06:05,440 --> 00:06:08,080
Speaker 1: Robert said, the mere disagreement with the ruling is not

89
00:06:08,160 --> 00:06:11,440
Speaker 1: a basis for questioning the legitimacy of the court, and

90
00:06:11,480 --> 00:06:14,760
Speaker 1: then two weeks later, Justice Kagan seemed to be replying

91
00:06:14,800 --> 00:06:17,400
Speaker 1: to him, almost saying that Americans are bound to lose

92
00:06:17,440 --> 00:06:20,000
Speaker 1: confidence in a court that looks like an extension of

93
00:06:20,000 --> 00:06:23,359
Speaker 1: the political process. Does it seem as if there's some

94
00:06:24,120 --> 00:06:27,560
Speaker 1: some problem among the justices. Well, I agree with both

95
00:06:27,600 --> 00:06:32,039
Speaker 1: of those statements, so it's not necessarily a debate. There

96
00:06:32,040 --> 00:06:35,840
Speaker 1: are many decisions of the Court recently and otherwise that

97
00:06:35,960 --> 00:06:40,240
Speaker 1: I disagree with, but whose legitimacy I accept. My job

98
00:06:40,360 --> 00:06:43,800
Speaker 1: is teaching law students such decisions. So I think the

99
00:06:43,880 --> 00:06:47,719
Speaker 1: Chief Justice is right, but I think what Justice Kagan

100
00:06:47,839 --> 00:06:50,680
Speaker 1: is saying is that the problems here are much broader

101
00:06:50,680 --> 00:06:53,839
Speaker 1: than Justice agreeing with the opinions. They rise to the

102
00:06:53,960 --> 00:06:57,919
Speaker 1: level of believing with the opinions are politicized. And I

103
00:06:57,960 --> 00:07:00,599
Speaker 1: think she's right about that as well. There was this

104
00:07:00,760 --> 00:07:05,880
Speaker 1: unprecedented delay in issuing the first opinion of the term,

105
00:07:05,920 --> 00:07:10,240
Speaker 1: and Justice Kavanaugh blamed it recently on the mix of cases.

106
00:07:10,320 --> 00:07:14,080
Speaker 1: If the Justice has heard in October and November, do

107
00:07:14,120 --> 00:07:18,000
Speaker 1: you think it's more than just that. I think it

108
00:07:18,160 --> 00:07:22,320
Speaker 1: is probably more or less what Justice Kavanaugh said. Now,

109
00:07:22,760 --> 00:07:26,400
Speaker 1: how that mix effects what the Court does is another matter.

110
00:07:26,760 --> 00:07:29,960
Speaker 1: Tradition on the Court is that they don't issue opinions

111
00:07:30,160 --> 00:07:33,920
Speaker 1: until any justices who want to write the sending opinions

112
00:07:33,920 --> 00:07:39,120
Speaker 1: had finished with the solids six three supermajority of conservatives.

113
00:07:39,280 --> 00:07:42,800
Speaker 1: They won't have any trouble getting to a majority on

114
00:07:43,000 --> 00:07:47,360
Speaker 1: politically charged cases, but they may have felt that they

115
00:07:47,360 --> 00:07:50,520
Speaker 1: needed to wait for the centers to finish, or there

116
00:07:50,520 --> 00:07:53,600
Speaker 1: may have been a back and forth. Typically, once a

117
00:07:54,120 --> 00:07:57,920
Speaker 1: descent has been circulated, the justices and the majority want

118
00:07:58,000 --> 00:08:01,160
Speaker 1: to change the majority to respond to the defense and

119
00:08:01,240 --> 00:08:04,040
Speaker 1: the the centers often than want to further change their

120
00:08:04,360 --> 00:08:08,320
Speaker 1: descent to respond to the new points in the majority opinion,

121
00:08:08,360 --> 00:08:11,720
Speaker 1: and that process could have taken quite a while. That

122
00:08:11,720 --> 00:08:15,440
Speaker 1: wouldn't be surprising or a polarized court. After the leak,

123
00:08:15,800 --> 00:08:19,440
Speaker 1: Justice Clarence Thomas said something to the effect that the

124
00:08:19,480 --> 00:08:23,120
Speaker 1: trust has gone and you're looking over your shoulder. But

125
00:08:23,200 --> 00:08:26,120
Speaker 1: does it seem as if it's such a different court

126
00:08:26,280 --> 00:08:29,080
Speaker 1: then the court was, you know a few years ago

127
00:08:29,200 --> 00:08:32,520
Speaker 1: when Justice Scalia was on the court. It's not the same.

128
00:08:32,920 --> 00:08:38,120
Speaker 1: It's not the same because they're no longer any meaningful

129
00:08:38,160 --> 00:08:42,160
Speaker 1: swing votes. In a certain sense. The Chief Justice is

130
00:08:42,200 --> 00:08:45,880
Speaker 1: to swing vote, but he swings between a six three

131
00:08:45,920 --> 00:08:49,600
Speaker 1: and five four conservative majority doesn't change the outcome. Once

132
00:08:49,640 --> 00:08:52,920
Speaker 1: in a great while, one of the other justices will

133
00:08:52,960 --> 00:08:56,640
Speaker 1: part company with their colleagues, and if two of them do,

134
00:08:56,920 --> 00:08:59,720
Speaker 1: then you may have a different results, but that almost

135
00:08:59,720 --> 00:09:05,720
Speaker 1: never happens. I think oral argument therefore feels less lively

136
00:09:06,440 --> 00:09:09,600
Speaker 1: because there are fewer doubts about how the cases are

137
00:09:09,600 --> 00:09:13,280
Speaker 1: going to come out with the super majority. In New

138
00:09:13,320 --> 00:09:17,520
Speaker 1: England School of Law, event Roberts said, the Framers established

139
00:09:17,520 --> 00:09:19,440
Speaker 1: a court in a way that we would not care

140
00:09:19,559 --> 00:09:23,959
Speaker 1: about that criticism. Explaining his approach to dealing with criticism

141
00:09:23,960 --> 00:09:26,160
Speaker 1: of the court, which is not to deal with it.

142
00:09:26,200 --> 00:09:29,000
Speaker 1: I guess do you agree with his interpretation of the

143
00:09:29,040 --> 00:09:32,840
Speaker 1: Framer's intent. I think his approach is too simplistic. The

144
00:09:32,920 --> 00:09:38,800
Speaker 1: Framers did not intend for justices to entrench themselves on

145
00:09:38,920 --> 00:09:43,520
Speaker 1: the Court for long periods and take politified actions to

146
00:09:43,760 --> 00:09:47,119
Speaker 1: reverse the results of election. The first two chief Justices

147
00:09:47,200 --> 00:09:49,840
Speaker 1: serve for only a few years each. Most of the

148
00:09:50,000 --> 00:09:54,800
Speaker 1: justices from the original area it served very brief terms.

149
00:09:55,080 --> 00:09:58,240
Speaker 1: Chief Justice Marshall departed from that, serving for a very

150
00:09:58,280 --> 00:10:01,400
Speaker 1: long time. But if you can judge at original intent

151
00:10:01,600 --> 00:10:04,760
Speaker 1: by what the early justices did, they saw it as

152
00:10:04,840 --> 00:10:08,800
Speaker 1: a temporary role, not one where they could be thrown

153
00:10:08,880 --> 00:10:12,720
Speaker 1: out by the public if their decisions were unpopular, but

154
00:10:12,840 --> 00:10:16,520
Speaker 1: also not one where the justice is appointed long long

155
00:10:16,559 --> 00:10:20,520
Speaker 1: ago would continue to hand down decisions. So this is

156
00:10:20,720 --> 00:10:24,120
Speaker 1: a very different court from the founders. And the notion

157
00:10:24,200 --> 00:10:28,199
Speaker 1: that the Court would be impervious to election results and

158
00:10:28,320 --> 00:10:32,960
Speaker 1: indeed would strike down laws passed by majorities voted in

159
00:10:33,080 --> 00:10:37,160
Speaker 1: by the public is certainly not an original concept. Indeed,

160
00:10:37,480 --> 00:10:40,440
Speaker 1: the ideas of the Supreme Court could strike down laws

161
00:10:40,480 --> 00:10:43,880
Speaker 1: Congress passed at all was not part of the original

162
00:10:44,320 --> 00:10:47,560
Speaker 1: document in the Constitution. It was added later in Marbury

163
00:10:47,679 --> 00:10:51,480
Speaker 1: versus Madison by Chief Justice Marshal. Should the Supreme Court

164
00:10:51,600 --> 00:10:55,760
Speaker 1: justices have a judicial ethics code? All other federal judges

165
00:10:56,320 --> 00:10:59,680
Speaker 1: follow one? And why should judges with the most power

166
00:10:59,800 --> 00:11:03,440
Speaker 1: to affect the country and the law the exempt. It

167
00:11:03,559 --> 00:11:08,080
Speaker 1: seems counterintuitive, And I know the American Bar Association passed

168
00:11:08,080 --> 00:11:11,800
Speaker 1: a resolution urging the High Court to adopt ethics rules.

169
00:11:11,920 --> 00:11:16,200
Speaker 1: Why do they resist? They resist because they can. No

170
00:11:16,280 --> 00:11:18,480
Speaker 1: one is in a position to impose it on them.

171
00:11:19,000 --> 00:11:21,840
Speaker 1: But there really is no defense for them doing that.

172
00:11:23,000 --> 00:11:25,679
Speaker 1: I suppose the argument would be that if there's an

173
00:11:25,679 --> 00:11:30,760
Speaker 1: ethics code, um, then people could use ethics allegations to

174
00:11:30,800 --> 00:11:33,839
Speaker 1: try to influence what judges too. But that's true in

175
00:11:33,920 --> 00:11:39,400
Speaker 1: any court, and there are methods for punishing that faith accusations,

176
00:11:39,440 --> 00:11:43,240
Speaker 1: whether against judges or anybody else. Uh. There really is

177
00:11:43,280 --> 00:11:47,240
Speaker 1: no justification for not having an ethics code. Uh. And

178
00:11:48,200 --> 00:11:54,199
Speaker 1: when justices have done things that call their impartiality, and

179
00:11:54,280 --> 00:11:59,240
Speaker 1: the question yet justice for working closely with the Johnson

180
00:11:59,280 --> 00:12:02,320
Speaker 1: administration shin at the same time he was deciding cases

181
00:12:02,800 --> 00:12:09,720
Speaker 1: that involved that administration or Justice Lea, the personally close

182
00:12:09,840 --> 00:12:16,640
Speaker 1: to uh sitting vice president or the matters being raised. Now,

183
00:12:17,080 --> 00:12:20,840
Speaker 1: there is a strong interest in the court to have

184
00:12:21,440 --> 00:12:25,439
Speaker 1: these matters. There's also a wrong clear lines, but there's

185
00:12:25,480 --> 00:12:28,959
Speaker 1: not a strong interest in individual justices for that. Could

186
00:12:28,960 --> 00:12:32,440
Speaker 1: Congress force a code, a judicial code, on the justices

187
00:12:32,559 --> 00:12:35,200
Speaker 1: or it's just totally up to them. I think there's

188
00:12:35,240 --> 00:12:38,640
Speaker 1: an argument Congress could do that. There are some state

189
00:12:38,840 --> 00:12:45,400
Speaker 1: constitutions that give the High Court absolute control over the judiciary.

190
00:12:46,240 --> 00:12:49,839
Speaker 1: That's not as clear in Article three in the Federal Constitution.

191
00:12:50,480 --> 00:12:53,640
Speaker 1: So I think it is entirely possible that Congress could

192
00:12:53,640 --> 00:12:58,680
Speaker 1: do that. Congress may limit the court's jurisdiction, and if

193
00:12:58,720 --> 00:13:01,679
Speaker 1: it can do that, it say that the Court does

194
00:13:01,720 --> 00:13:05,520
Speaker 1: not have jurisdiction to hear any case in which a

195
00:13:05,720 --> 00:13:08,880
Speaker 1: justice has the conflict of interest but has failed to

196
00:13:08,920 --> 00:13:11,880
Speaker 1: refuse him or herself. I mean, does the Chief Justice

197
00:13:11,920 --> 00:13:15,960
Speaker 1: have any power beyond what any other justice has. He

198
00:13:16,080 --> 00:13:18,960
Speaker 1: does have some powers that I'm not sure whether they help.

199
00:13:19,040 --> 00:13:22,120
Speaker 1: He can, for example, in any decision where he's in

200
00:13:22,160 --> 00:13:24,800
Speaker 1: the majority, he can write the opinion if he wants

201
00:13:24,880 --> 00:13:30,560
Speaker 1: to um. And he could write more moderate, more precedent

202
00:13:30,760 --> 00:13:35,160
Speaker 1: honoring opinions on some of these cases if he's in

203
00:13:35,200 --> 00:13:37,640
Speaker 1: the majority. But that's not going to deal with the

204
00:13:37,640 --> 00:13:41,360
Speaker 1: fundamental concerned people have that the outcome are the winners

205
00:13:41,400 --> 00:13:45,600
Speaker 1: in these cases are ordained by politics. There have been,

206
00:13:45,640 --> 00:13:50,040
Speaker 1: you know, a lot of suggestions of about ways to

207
00:13:50,120 --> 00:13:53,960
Speaker 1: change the court, to pack the court, to add term limits.

208
00:13:54,240 --> 00:13:56,840
Speaker 1: What's your take on whether or not something should be

209
00:13:56,880 --> 00:13:59,719
Speaker 1: done to change the court in that way. I think

210
00:13:59,760 --> 00:14:02,560
Speaker 1: the should be done to change the court. I absolutely

211
00:14:02,559 --> 00:14:06,560
Speaker 1: think that, but I don't like the proposals that are

212
00:14:06,760 --> 00:14:10,440
Speaker 1: currently popular. I've actually written an article on what I

213
00:14:10,480 --> 00:14:13,160
Speaker 1: think should be done. I think the proper approach is

214
00:14:13,200 --> 00:14:15,680
Speaker 1: to adopt the one that New York State has, which

215
00:14:15,760 --> 00:14:21,000
Speaker 1: is a nonpartisan commission picking a set of candidates for

216
00:14:21,080 --> 00:14:28,720
Speaker 1: each position, and if the President chooses one of those candidates,

217
00:14:28,840 --> 00:14:31,440
Speaker 1: then they can go through the Senate without a filibuster.

218
00:14:31,560 --> 00:14:34,360
Speaker 1: The President would be free to nominate someone else, but

219
00:14:34,520 --> 00:14:37,680
Speaker 1: that person would not have protection against the filibuster. That

220
00:14:37,760 --> 00:14:41,320
Speaker 1: would get us more moderate Democrats and more moderate Republicans,

221
00:14:41,480 --> 00:14:44,080
Speaker 1: and we'd go back to having genuine swing votes on

222
00:14:44,120 --> 00:14:48,400
Speaker 1: the Court. Thanks David. That's Professor David super of Georgetown

223
00:14:48,440 --> 00:14:52,960
Speaker 1: Law School. In the wake of the shooting down of

224
00:14:53,000 --> 00:14:56,400
Speaker 1: a Chinese spy balloon over the coast of South Carolina

225
00:14:56,560 --> 00:14:59,960
Speaker 1: and three other objects. Lawmakers are beginning to look towards

226
00:15:00,040 --> 00:15:03,320
Speaker 1: how these kinds of surveillance efforts should be handled between

227
00:15:03,360 --> 00:15:06,560
Speaker 1: the US and China, including through the data collection of

228
00:15:06,640 --> 00:15:10,400
Speaker 1: companies like TikTok. The chairman of the House Oversight Committee,

229
00:15:10,440 --> 00:15:15,160
Speaker 1: Republican Representative James Coomer, said Congress shouldn't rule out further

230
00:15:15,240 --> 00:15:19,240
Speaker 1: restrictions on these companies, particularly on how data is gathered.

231
00:15:19,760 --> 00:15:23,800
Speaker 1: It's a concern for high level people in the government

232
00:15:23,840 --> 00:15:28,200
Speaker 1: because with that data byte dance can can tell where

233
00:15:28,240 --> 00:15:30,360
Speaker 1: you are. If you're using TikTok, they know where your

234
00:15:30,400 --> 00:15:33,720
Speaker 1: location is, so that would be a concern. And TikTok

235
00:15:33,880 --> 00:15:37,400
Speaker 1: is facing a growing number of class action lawsuits that

236
00:15:37,480 --> 00:15:41,200
Speaker 1: it's in app browser illegally tracks users clicks and key

237
00:15:41,240 --> 00:15:44,960
Speaker 1: strokes in violation of a federal wire tap law, a

238
00:15:45,040 --> 00:15:49,440
Speaker 1: claim that will test novel privacy litigation issues. The suits

239
00:15:49,480 --> 00:15:53,360
Speaker 1: say that TikTok could become privy to private information such

240
00:15:53,400 --> 00:15:57,560
Speaker 1: as a user's credit card accounts, mental health, or sexual preferences.

241
00:15:57,880 --> 00:16:01,160
Speaker 1: Joining me is privacy and class action attorney David Straight,

242
00:16:01,480 --> 00:16:04,200
Speaker 1: a partner to cello and love it. There are nearly

243
00:16:04,280 --> 00:16:08,840
Speaker 1: one dozen proposed class actions across five states that have

244
00:16:08,920 --> 00:16:13,680
Speaker 1: been filed against TikTok since November. Can you explain the

245
00:16:13,720 --> 00:16:17,440
Speaker 1: basis of these actions, you know, the causes of action? Yes,

246
00:16:17,560 --> 00:16:22,680
Speaker 1: Briefly speaking, all of these complaints allege that TikTok is

247
00:16:22,760 --> 00:16:28,640
Speaker 1: injecting script as a JavaScript code into the websites that

248
00:16:28,680 --> 00:16:32,960
Speaker 1: are being visited through the TikTok app. And this script

249
00:16:33,120 --> 00:16:37,080
Speaker 1: allows for session replay. So this is not you know,

250
00:16:37,160 --> 00:16:42,360
Speaker 1: the traditional sort of tracking across the Internet where the

251
00:16:42,480 --> 00:16:45,680
Speaker 1: actual website, you know, the u r L with the

252
00:16:45,720 --> 00:16:49,040
Speaker 1: IP address and maybe the file path would be recorded

253
00:16:49,040 --> 00:16:52,680
Speaker 1: by a third party. The session replay code allows the

254
00:16:52,720 --> 00:16:57,480
Speaker 1: recipients of the information two observe right down to the

255
00:16:57,560 --> 00:17:01,080
Speaker 1: key stroke of what's going on on those sites. So,

256
00:17:01,720 --> 00:17:07,600
Speaker 1: these cases all alleged that TikTok is violating numerous laws,

257
00:17:07,640 --> 00:17:12,960
Speaker 1: including the wiretop Law, which forbid the interception of communications

258
00:17:13,000 --> 00:17:17,439
Speaker 1: over the wires in flight, meaning real time contemporary communications

259
00:17:17,680 --> 00:17:20,760
Speaker 1: without the consent of at least one party to the

260
00:17:20,760 --> 00:17:25,520
Speaker 1: communication or cord order. What kind of information is TikTok

261
00:17:25,600 --> 00:17:29,040
Speaker 1: allegedly mining? Do we know? Well, when you say mining,

262
00:17:29,600 --> 00:17:34,679
Speaker 1: it's unclear what use TikTok is making of the data. Typically,

263
00:17:35,000 --> 00:17:38,639
Speaker 1: when a third party monitors Internet use, the data is

264
00:17:38,680 --> 00:17:42,480
Speaker 1: not simply stored in the file. Typically inferences are made

265
00:17:42,760 --> 00:17:46,439
Speaker 1: right so profiles are created and inferences are made based

266
00:17:46,480 --> 00:17:49,480
Speaker 1: on one's activity, where one visits from, where, who you are,

267
00:17:49,920 --> 00:17:52,720
Speaker 1: what sort of activity has done so well, I don't

268
00:17:52,800 --> 00:17:57,280
Speaker 1: know what precisely TikTok is using with the data. We

269
00:17:57,359 --> 00:17:59,600
Speaker 1: do have a sense of what data is being gathered

270
00:17:59,640 --> 00:18:02,600
Speaker 1: through the app when users click on links that bring

271
00:18:02,640 --> 00:18:05,640
Speaker 1: them to first party websites, and what would that be.

272
00:18:05,880 --> 00:18:09,560
Speaker 1: So the session replay the script allows more than just

273
00:18:09,600 --> 00:18:12,160
Speaker 1: the gathering of the r L. So it would be

274
00:18:12,240 --> 00:18:14,520
Speaker 1: for example, forms that are filled out. It could be

275
00:18:15,080 --> 00:18:19,200
Speaker 1: navigating the website from page to page, deeper and deeper down,

276
00:18:19,359 --> 00:18:22,000
Speaker 1: maybe choices that are made on the website, information that's

277
00:18:22,040 --> 00:18:25,760
Speaker 1: provided into various places on the website, into forms, etcetera.

278
00:18:25,800 --> 00:18:29,199
Speaker 1: It can be fairly profound what information can be gathered. So,

279
00:18:29,280 --> 00:18:31,960
Speaker 1: for example, if a person is filling out a health form,

280
00:18:32,160 --> 00:18:37,600
Speaker 1: all that personal information is entered. Now are these claims

281
00:18:37,640 --> 00:18:42,600
Speaker 1: by the plaintiffs novel claims or are they claims that

282
00:18:42,680 --> 00:18:46,280
Speaker 1: have been tried before in a kind of a different way.

283
00:18:46,960 --> 00:18:49,880
Speaker 1: So session replay is fairly new. You know. There were

284
00:18:49,960 --> 00:18:54,680
Speaker 1: some interesting articles published as early as on this topic,

285
00:18:55,040 --> 00:18:58,359
Speaker 1: so it's not a new technology this year. It's been

286
00:18:58,400 --> 00:19:02,359
Speaker 1: around for a while. But the claims are based on older,

287
00:19:02,440 --> 00:19:06,200
Speaker 1: tried and true plan. The Wiretap Act, originally passed by

288
00:19:06,240 --> 00:19:09,280
Speaker 1: Congress in nineteen sixty eight, applied the telephone calls, that's

289
00:19:09,280 --> 00:19:13,280
Speaker 1: the traditional nineteen sixties and nineteen seventies style, you know,

290
00:19:13,320 --> 00:19:16,359
Speaker 1: bugging of a phone and see these. But then in

291
00:19:16,480 --> 00:19:20,000
Speaker 1: the early nineteen eighties it was understood that increasing number

292
00:19:20,040 --> 00:19:23,000
Speaker 1: of communications were happening by a computer and then and

293
00:19:23,400 --> 00:19:26,320
Speaker 1: through this submerging technology which became known as the Internet.

294
00:19:26,560 --> 00:19:31,200
Speaker 1: So in the Wiretap Act was updated to include computer communications.

295
00:19:31,480 --> 00:19:35,760
Speaker 1: It was the Electronic Communications Privacy Act which then updated

296
00:19:35,760 --> 00:19:38,640
Speaker 1: and incorporated the old wire Tap Act. So we're going

297
00:19:38,680 --> 00:19:42,600
Speaker 1: back now decades. It's understood that the interception of communications,

298
00:19:42,600 --> 00:19:46,560
Speaker 1: even over computers, can be a wire tap violation. So

299
00:19:46,680 --> 00:19:51,760
Speaker 1: in these cases we have Wiretap Act claims, and those

300
00:19:51,760 --> 00:19:54,840
Speaker 1: are long ago held to apply to the Internet communications

301
00:19:54,840 --> 00:19:59,439
Speaker 1: by design in the statute, and certainly the interception of

302
00:19:59,680 --> 00:20:03,679
Speaker 1: a r L even just a link to a website,

303
00:20:04,119 --> 00:20:06,600
Speaker 1: assuming it's not just the I P address you give

304
00:20:06,600 --> 00:20:12,199
Speaker 1: you hypothetical www dot cnn dot com. Well, that may

305
00:20:12,280 --> 00:20:15,359
Speaker 1: or may not be the content of the communication that

306
00:20:15,400 --> 00:20:19,240
Speaker 1: would give rise to a wiretap claim. But certainly deeper

307
00:20:19,280 --> 00:20:22,440
Speaker 1: into the website, when you're talking about articles that are

308
00:20:22,640 --> 00:20:26,000
Speaker 1: viewed on CNN dot com, certainly search queries and other

309
00:20:26,040 --> 00:20:29,359
Speaker 1: activities on the website, absolutely those would be content of

310
00:20:29,359 --> 00:20:33,879
Speaker 1: the communication and therefore implicating a possible wire tap claim here,

311
00:20:34,600 --> 00:20:38,800
Speaker 1: because we have session replay technology, we're talking not just

312
00:20:38,920 --> 00:20:42,000
Speaker 1: about the U r L visited, the clicking on the

313
00:20:42,040 --> 00:20:44,520
Speaker 1: link and then visiting the website, you know, through the

314
00:20:45,000 --> 00:20:48,240
Speaker 1: TikTok after you know the browser, but we're talking about

315
00:20:48,280 --> 00:20:52,119
Speaker 1: activities on the website that would then allegedly be captured

316
00:20:52,160 --> 00:20:55,480
Speaker 1: by the session of replay technology. So in that sense,

317
00:20:55,640 --> 00:20:58,560
Speaker 1: it's not a new novel claim, but it is the

318
00:20:58,640 --> 00:21:03,359
Speaker 1: extension of the existing, well accepted application of the Wire's

319
00:21:03,359 --> 00:21:06,840
Speaker 1: Appact to the interception of communications on the Internet. Do

320
00:21:07,119 --> 00:21:11,360
Speaker 1: users of these kinds of apps have an expectation of privacy? Yes,

321
00:21:11,440 --> 00:21:15,000
Speaker 1: absolutely that that is a given. So there's no question

322
00:21:15,520 --> 00:21:20,359
Speaker 1: that there's a reasonable expectation of privacy and one's Internet browsing. Certainly,

323
00:21:20,359 --> 00:21:22,920
Speaker 1: the aggregation of the browsing the ninth Circuit in particular

324
00:21:22,960 --> 00:21:25,800
Speaker 1: has been out front and so finding not too many

325
00:21:25,880 --> 00:21:29,840
Speaker 1: courts at this point would disagree. Certainly, multiple studies have

326
00:21:29,920 --> 00:21:34,520
Speaker 1: confirmed that although you may be sharing your Internet browsing

327
00:21:34,520 --> 00:21:38,879
Speaker 1: with a particular website that particular visit, the aggregation of

328
00:21:38,920 --> 00:21:42,359
Speaker 1: your web browsing across multiple sites. Absolutely there's an expectation

329
00:21:42,400 --> 00:21:45,600
Speaker 1: of privacy there. Even if we're talking about you know,

330
00:21:45,600 --> 00:21:48,840
Speaker 1: what's traditionally thought of as non sensitive website that you

331
00:21:48,920 --> 00:21:53,160
Speaker 1: go to, you know, Walmart dot com to buy a towel. There,

332
00:21:53,160 --> 00:21:54,720
Speaker 1: maybe some people and they say, well, is that really

333
00:21:54,760 --> 00:21:57,320
Speaker 1: a private issue? Well it is, in fact, Congress said,

334
00:21:57,359 --> 00:22:01,080
Speaker 1: so that's why the Wire's at Act exists. That private communications,

335
00:22:01,119 --> 00:22:04,600
Speaker 1: there's absolutely reasonable expectation of privacy, and that's why the

336
00:22:04,600 --> 00:22:07,680
Speaker 1: original wire Tap Act was passed. Once we start talking

337
00:22:07,680 --> 00:22:10,880
Speaker 1: about the aggregation and of your web browsing, no question,

338
00:22:11,400 --> 00:22:14,119
Speaker 1: that's generally accept that there would be a reasonable expectation

339
00:22:14,160 --> 00:22:17,879
Speaker 1: of privacy. Now, your question, specifically, does that expectation of

340
00:22:17,960 --> 00:22:22,960
Speaker 1: privacy continue within the TikTok app? Specific to TikTok i

341
00:22:22,960 --> 00:22:25,800
Speaker 1: would say yes. Certainly these cases that are being filed

342
00:22:25,840 --> 00:22:29,760
Speaker 1: would say yes. But that reasonable expectation is not a

343
00:22:29,800 --> 00:22:33,000
Speaker 1: precondition to the application of the Wiretap Act. All that's

344
00:22:33,080 --> 00:22:37,080
Speaker 1: necessary is that there be the interception of a communication

345
00:22:37,160 --> 00:22:40,280
Speaker 1: across the wires in flight, and communication includes the content

346
00:22:40,520 --> 00:22:44,479
Speaker 1: of the communication without consent, full stop. That's the claim.

347
00:22:44,880 --> 00:22:47,520
Speaker 1: So that's why these claims under the wire Tap Act

348
00:22:47,920 --> 00:22:50,440
Speaker 1: are so powerful, because we don't need to ask the

349
00:22:50,520 --> 00:22:53,840
Speaker 1: question of whether a reasonable person has an expectation of

350
00:22:53,840 --> 00:22:57,080
Speaker 1: privacy or whether an individual plaintiffs might have an expectation

351
00:22:57,080 --> 00:22:59,879
Speaker 1: of privacy. The wire Tap Act doesn't care. It's simply

352
00:23:00,000 --> 00:23:04,880
Speaker 1: says the interception was unbowful. A TikTok spokesperson said, would

353
00:23:04,880 --> 00:23:08,879
Speaker 1: you not collect keystroke or text inputs through this JavaScript code?

354
00:23:09,160 --> 00:23:13,679
Speaker 1: It's only used for debugging, trouble suiting and performance monitoring.

355
00:23:14,200 --> 00:23:16,960
Speaker 1: Is there a clear way for them to prove that?

356
00:23:17,320 --> 00:23:20,800
Speaker 1: There will be two ways that they can pursue that defense.

357
00:23:21,040 --> 00:23:23,440
Speaker 1: First of all, I'm not quite sure whether that's a

358
00:23:23,480 --> 00:23:26,760
Speaker 1: complete defense to what's being ledged. Even if what they're

359
00:23:26,760 --> 00:23:29,200
Speaker 1: saying is true to the letter of their defense, I'm

360
00:23:29,200 --> 00:23:31,560
Speaker 1: not sure that would be a complete defense anyway. We

361
00:23:31,600 --> 00:23:33,960
Speaker 1: would have to look at the terms of service and

362
00:23:34,000 --> 00:23:37,320
Speaker 1: the privacy policy and other governing documents and see whether

363
00:23:37,560 --> 00:23:41,080
Speaker 1: that defense would work, whether that limited gathering or limited

364
00:23:41,160 --> 00:23:44,280
Speaker 1: use of gathering would be permissible, because I don't know

365
00:23:44,359 --> 00:23:46,399
Speaker 1: the details there. But there are two places where that

366
00:23:46,400 --> 00:23:48,159
Speaker 1: defense could be raised. One could be at the at

367
00:23:48,200 --> 00:23:52,199
Speaker 1: the motions dismiss phase. For the non lawyers listening, the

368
00:23:52,240 --> 00:23:55,080
Speaker 1: motion to dismiss phase is testing the legal sufficiency of

369
00:23:55,080 --> 00:23:59,160
Speaker 1: the outations, where the court will have to assess if

370
00:23:59,320 --> 00:24:03,560
Speaker 1: it's true what's being alleged. Is the allegation legally sufficient

371
00:24:03,600 --> 00:24:07,359
Speaker 1: to raise this claim? It's not usually appropriate at the

372
00:24:07,440 --> 00:24:09,360
Speaker 1: stage for the defended to say it, but I don't

373
00:24:09,359 --> 00:24:12,479
Speaker 1: do that. Sometimes there can be some allegations that are

374
00:24:12,480 --> 00:24:16,000
Speaker 1: so atlantish or so obviously wrong they can be defended

375
00:24:16,000 --> 00:24:19,240
Speaker 1: at the motion to this misspace, but usually not. Typically

376
00:24:19,480 --> 00:24:22,479
Speaker 1: a defense of what I didn't do it um is

377
00:24:22,520 --> 00:24:25,840
Speaker 1: done later in the case, after discovery, after defendants have

378
00:24:25,880 --> 00:24:28,240
Speaker 1: an opportunity to see if they're telling the truth. So

379
00:24:28,440 --> 00:24:31,679
Speaker 1: the evaluation at the first stage is what is the

380
00:24:31,720 --> 00:24:34,840
Speaker 1: basis of the information? Is it just information and belief?

381
00:24:34,960 --> 00:24:37,639
Speaker 1: Is it through testing? What is the credibility at a

382
00:24:37,720 --> 00:24:41,080
Speaker 1: very basic level, and then the case proceeds to discovery.

383
00:24:41,200 --> 00:24:44,720
Speaker 1: Then there's a second opportunity that the defendant will have. Here,

384
00:24:44,720 --> 00:24:48,720
Speaker 1: it's multiple defendants will have the opportunity after discovery to say, hey,

385
00:24:48,760 --> 00:24:51,400
Speaker 1: you haven't proven your case that no reasonable jury could

386
00:24:51,440 --> 00:24:54,760
Speaker 1: believe your version of the facts. That would be a

387
00:24:55,040 --> 00:24:58,639
Speaker 1: motion for summary judgment after the parties have had an

388
00:24:58,680 --> 00:25:03,600
Speaker 1: opportunity to test the claims. One of the law firms

389
00:25:03,640 --> 00:25:09,239
Speaker 1: involved here wants to consolidate nine of the cases and

390
00:25:09,320 --> 00:25:13,200
Speaker 1: to multi district litigation. Does it seem like there is

391
00:25:13,280 --> 00:25:20,520
Speaker 1: so much similarity in the allegations that they should be consolidated. Well,

392
00:25:20,560 --> 00:25:25,080
Speaker 1: the judicial panel and multi district litigation will ultimately make

393
00:25:25,160 --> 00:25:29,440
Speaker 1: that decision. And the focus is typically on efficiencies and discovery,

394
00:25:29,760 --> 00:25:31,840
Speaker 1: and you know there's I think some people who aren't

395
00:25:31,880 --> 00:25:35,280
Speaker 1: in the industry may not understand that. Technically speaking, if

396
00:25:35,280 --> 00:25:37,880
Speaker 1: a case goes to trial, the case of them become

397
00:25:37,960 --> 00:25:40,480
Speaker 1: just aggregated sent back to their home district. That's a

398
00:25:40,560 --> 00:25:46,240
Speaker 1: very rare situation. But the focus on the grouping of

399
00:25:46,240 --> 00:25:49,520
Speaker 1: the cases together and then transferring them to a common

400
00:25:49,560 --> 00:25:54,240
Speaker 1: court that is actually done for efficiency in discovery. So

401
00:25:54,400 --> 00:25:58,000
Speaker 1: that's the same executive, for example, only testifies once, so

402
00:25:58,040 --> 00:26:00,640
Speaker 1: the documents can be produced in an efficient manner among

403
00:26:00,680 --> 00:26:03,040
Speaker 1: the cases. In fact, even if the jp m L

404
00:26:03,160 --> 00:26:07,520
Speaker 1: the Judicial Panel on Multi district Litigation, even if they

405
00:26:07,600 --> 00:26:10,960
Speaker 1: were to decide the cases are related enough to consider

406
00:26:11,000 --> 00:26:14,320
Speaker 1: them together and transfers them all to a single court,

407
00:26:14,800 --> 00:26:18,119
Speaker 1: that does not necessarily mean they have to be consolidated

408
00:26:18,160 --> 00:26:21,040
Speaker 1: into a single case. There are many cases where they're

409
00:26:21,040 --> 00:26:24,600
Speaker 1: simply related and that they are coordinated, and that's a

410
00:26:24,640 --> 00:26:27,600
Speaker 1: decision that the transferre court will have to make whether

411
00:26:27,640 --> 00:26:32,439
Speaker 1: they should be consolidated or simply coordinated. And TikTok is

412
00:26:32,600 --> 00:26:36,240
Speaker 1: arguing that the lawsuit should be included in an already

413
00:26:36,320 --> 00:26:41,840
Speaker 1: settled multidistrict litigation action in Illinois. I mean, is that

414
00:26:41,920 --> 00:26:48,719
Speaker 1: a wild kind of argument. It's unusual. Certainly, it's not

415
00:26:49,280 --> 00:26:53,960
Speaker 1: a normal thing for a settlement agreement to settle claims

416
00:26:54,080 --> 00:26:58,080
Speaker 1: for past behavior and future behavior, so to the extent

417
00:26:58,200 --> 00:27:02,960
Speaker 1: that any of these cases overlap with the settled case.

418
00:27:03,400 --> 00:27:06,240
Speaker 1: For actions that were done prior to the day of

419
00:27:06,280 --> 00:27:08,960
Speaker 1: the settlement, or prior to the data of the pulmonary approval,

420
00:27:09,040 --> 00:27:11,760
Speaker 1: even prior to the data the final approval, then the

421
00:27:11,840 --> 00:27:16,840
Speaker 1: question will be whether the settlement substantively covers the actions

422
00:27:16,880 --> 00:27:20,200
Speaker 1: that are challenged in these cases. But to the extent

423
00:27:20,280 --> 00:27:24,480
Speaker 1: that the offending activity or alleged to the offending activity

424
00:27:24,880 --> 00:27:28,600
Speaker 1: occurred after one of those dates, that's a little more unusual.

425
00:27:28,760 --> 00:27:31,520
Speaker 1: The idea that a settlement can say we put a

426
00:27:31,560 --> 00:27:35,520
Speaker 1: force field around the defendant for even future behavior is very,

427
00:27:35,640 --> 00:27:38,920
Speaker 1: very unusual and is not likely to be looked at

428
00:27:39,000 --> 00:27:43,080
Speaker 1: kindly by too many courts. Are the Planti's going to

429
00:27:43,119 --> 00:27:46,520
Speaker 1: have troubles here once they do? You mentioned the discovery phase.

430
00:27:46,600 --> 00:27:49,200
Speaker 1: Once they do reach the discovery phase, are they going

431
00:27:49,240 --> 00:27:53,399
Speaker 1: to have trouble getting discovery from TikTok, which is based

432
00:27:53,520 --> 00:27:58,520
Speaker 1: in China. Whenever there's a case where evidence is located

433
00:27:58,600 --> 00:28:01,720
Speaker 1: outside of the borders of the United States, naturally there

434
00:28:01,760 --> 00:28:05,280
Speaker 1: are challenges, and the challenges are are multifacets. First of all,

435
00:28:05,359 --> 00:28:09,520
Speaker 1: would be documents. That's the easiest question, because documents can

436
00:28:09,520 --> 00:28:12,879
Speaker 1: easily be transferred. Then you have the question of what

437
00:28:13,119 --> 00:28:17,400
Speaker 1: if what about depositions. Some countries are less amenable two

438
00:28:17,400 --> 00:28:21,160
Speaker 1: depositions of individuals, because that's that's more of an American thing.

439
00:28:21,400 --> 00:28:25,000
Speaker 1: Many countries allowed depositions, but not the same extent that

440
00:28:24,680 --> 00:28:27,959
Speaker 1: that the United States does. To get that type of

441
00:28:28,119 --> 00:28:32,200
Speaker 1: evidence located abroad, there are conventions that can be used.

442
00:28:32,200 --> 00:28:35,360
Speaker 1: The Hay Convention is the most common to get access

443
00:28:35,400 --> 00:28:39,120
Speaker 1: to that evidence. But we're talking about China, it's a

444
00:28:39,160 --> 00:28:43,160
Speaker 1: different issue. The complication that one always faces whenever evidence

445
00:28:43,240 --> 00:28:46,600
Speaker 1: is located outside the United States is even more complex

446
00:28:46,600 --> 00:28:49,480
Speaker 1: when you're talking about China specifically. And one thing that

447
00:28:49,560 --> 00:28:51,400
Speaker 1: we also have to remember is that these documents may

448
00:28:51,480 --> 00:28:53,800
Speaker 1: or may not be evidence, may or may not be

449
00:28:53,840 --> 00:28:56,920
Speaker 1: taken at deposition in the language other than English. I'm

450
00:28:56,920 --> 00:29:00,080
Speaker 1: not familiar with the language of business. That TikTok it.

451
00:29:00,680 --> 00:29:04,200
Speaker 1: That's always an issue whenever you have international litigation. You

452
00:29:04,280 --> 00:29:08,200
Speaker 1: have these you know, nearly a dozen proposed class actions.

453
00:29:09,040 --> 00:29:13,120
Speaker 1: Are you expecting to see more similar class actions or

454
00:29:13,560 --> 00:29:16,080
Speaker 1: arrest it until some of these cases get a little

455
00:29:16,120 --> 00:29:20,360
Speaker 1: farther along, I don't know whether others will be filed.

456
00:29:20,360 --> 00:29:23,960
Speaker 1: Typically at this phase, given that we're now a couple

457
00:29:23,960 --> 00:29:26,440
Speaker 1: of months into the process, you would expect to see

458
00:29:26,440 --> 00:29:28,440
Speaker 1: the pace fall off, and we have seen the pace

459
00:29:28,520 --> 00:29:32,440
Speaker 1: fall off. That does not preclude other people from filing UM,

460
00:29:32,600 --> 00:29:35,520
Speaker 1: but at this phase UM, if new claims are brought.

461
00:29:35,680 --> 00:29:39,280
Speaker 1: Typically you would see them include additional allegations or additional

462
00:29:39,360 --> 00:29:42,280
Speaker 1: claims that weren't brought before. There may be some firms

463
00:29:42,320 --> 00:29:46,920
Speaker 1: doing additional investigations, and those would likely be the basis

464
00:29:46,960 --> 00:29:51,280
Speaker 1: for new claims being filed. But just because the the

465
00:29:51,360 --> 00:29:55,160
Speaker 1: panel is now looking at the motion for centralization does

466
00:29:55,200 --> 00:29:58,040
Speaker 1: not preclude new cases from being brought. You might see more.

467
00:29:58,440 --> 00:30:02,400
Speaker 1: You know, we've heard a lot from regulators, government officials

468
00:30:02,400 --> 00:30:09,240
Speaker 1: concern about TikTok and China's access to the US user data.

469
00:30:09,600 --> 00:30:14,400
Speaker 1: Do you expect to see more state enforcement against the app? Well,

470
00:30:14,480 --> 00:30:18,920
Speaker 1: certainly the fact that this is TikTok, leave aside the

471
00:30:18,960 --> 00:30:22,880
Speaker 1: technology that's allegedly being used, the session replay technology, leaving

472
00:30:22,880 --> 00:30:26,080
Speaker 1: that aside, leaving aside the wiretap claims. In particular, we're

473
00:30:26,080 --> 00:30:29,680
Speaker 1: talking about a defendant that is right now very much

474
00:30:29,760 --> 00:30:34,360
Speaker 1: in the site of Congress, state legislatures, regulators at the

475
00:30:34,360 --> 00:30:38,000
Speaker 1: federal level and state level. It's a fairly well known

476
00:30:38,080 --> 00:30:41,840
Speaker 1: defendant this year, um and given also what's happened recently

477
00:30:42,400 --> 00:30:44,800
Speaker 1: and it's still going on with spy balloons and other

478
00:30:44,920 --> 00:30:49,360
Speaker 1: unidentified objects, and there's a bit of heightened tension, specifically

479
00:30:49,480 --> 00:30:53,880
Speaker 1: with Chinese spying or legisfying. There's no way to separate

480
00:30:53,960 --> 00:30:59,440
Speaker 1: out the Chinese space of TikTok from these stories. It's impossible,

481
00:30:59,760 --> 00:31:02,920
Speaker 1: So that will absolutely be a factor how it plays out.

482
00:31:02,920 --> 00:31:05,960
Speaker 1: I have no way of knowing, but the analysis of

483
00:31:06,000 --> 00:31:10,800
Speaker 1: these cases cannot be divorced from the current geopolitical situation. Now,

484
00:31:10,840 --> 00:31:14,080
Speaker 1: will states also get involved? I think it would be

485
00:31:14,120 --> 00:31:17,960
Speaker 1: impossible that every state would stay out, whether it be

486
00:31:18,120 --> 00:31:22,480
Speaker 1: through legislative action or regulatory action. I just can't imagine

487
00:31:22,520 --> 00:31:25,080
Speaker 1: that for the next year no state gets involved in

488
00:31:25,080 --> 00:31:28,040
Speaker 1: trying to regulate TikTok. Oh. I think you're right. You know,

489
00:31:28,160 --> 00:31:30,640
Speaker 1: those state attorney generals love to get involved, and this

490
00:31:30,680 --> 00:31:33,240
Speaker 1: is an important case to watch. You know that it's

491
00:31:33,360 --> 00:31:36,240
Speaker 1: rare for a series of class actions like this to

492
00:31:36,320 --> 00:31:40,360
Speaker 1: be touching on so many issues, keep a lot of

493
00:31:40,400 --> 00:31:43,760
Speaker 1: people interesstood, even people who are traditionally not involved in

494
00:31:43,800 --> 00:31:47,280
Speaker 1: the class action space or not typically involved in data

495
00:31:47,320 --> 00:31:51,600
Speaker 1: privacy space, just because of the national security issues. And

496
00:31:51,640 --> 00:31:55,760
Speaker 1: also let's not forget something like half of all TikTok

497
00:31:55,880 --> 00:31:59,400
Speaker 1: users are under eighteen. That absolutely is going to be

498
00:31:59,760 --> 00:32:02,640
Speaker 1: a elevant issue here. There's so many issues that played

499
00:32:02,720 --> 00:32:05,080
Speaker 1: I think this will remain in in the president and

500
00:32:05,120 --> 00:32:08,680
Speaker 1: the headlines for the duration of the case. Thanks David.

501
00:32:08,960 --> 00:32:12,440
Speaker 1: That's David Straight, a partner to Cello Levitt. And that's

502
00:32:12,480 --> 00:32:15,120
Speaker 1: it for this edition of The Bloomberg Law Show. Remember

503
00:32:15,160 --> 00:32:17,200
Speaker 1: you can always get the latest legal news on our

504
00:32:17,240 --> 00:32:21,360
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

505
00:32:21,600 --> 00:32:26,600
Speaker 1: and at www dot bloomberg dot com, slash podcast, Slash Law,

506
00:32:27,040 --> 00:32:29,640
Speaker 1: and remember to tune into The Bloomberg Law Show every

507
00:32:29,680 --> 00:32:33,120
Speaker 1: week night at ten pm Wall Street Time. I'm June

508
00:32:33,120 --> 00:32:35,320
Speaker 1: Grosso and you're listening to Bloomberg