WEBVTT - Supreme Court Criticisms; Does TikTok Wiretap Users? 0:00:03.080 --> 0:00:08.280 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:09.240 --> 0:00:12.600 The American Bar Association is calling for the Supreme Court 0:00:12.640 --> 0:00:16.240 to adopt the Judicial Ethics Code as the Court faces 0:00:16.360 --> 0:00:21.560 plummeting public opinion, an unresolved leak investigation, and a wave 0:00:21.600 --> 0:00:25.160 of ethics concerns, none of which the Chief Justice has 0:00:25.200 --> 0:00:29.200 addressed head on. Chief Justice John Roberts has spoken only 0:00:29.280 --> 0:00:33.440 twice publicly in the past year, behind closed door audiences 0:00:33.479 --> 0:00:37.400 of fellow judges, lawyers, and judicial staff at Federal Circuit 0:00:37.440 --> 0:00:41.040 Court conferences. The only reference he made to the public 0:00:41.080 --> 0:00:44.440 disapproval of the Court was to say that Supreme Court 0:00:44.520 --> 0:00:50.200 decisions and controversial cases have always been subject to intense criticism, 0:00:50.240 --> 0:00:53.240 but it's a mistake to call into question the legitimacy 0:00:53.280 --> 0:00:58.280 of the Court. The legitimacy of the Court rests on 0:00:58.360 --> 0:01:01.480 the fact that it satisfies the requirements of the of 0:01:01.520 --> 0:01:07.120 the Statute and that the Constitution needs, as John Marshall 0:01:07.160 --> 0:01:09.680 put it, somebody to say what the law is, and 0:01:09.760 --> 0:01:13.640 that's the role of the Supreme Court. I don't understand 0:01:13.680 --> 0:01:18.520 the connection between opinions that people disagree with and the 0:01:18.640 --> 0:01:23.240 legitimacy of the Court if the Court doesn't retain its 0:01:23.319 --> 0:01:27.480 legitimate function of interpreting the Constitution, I'm not sure who 0:01:27.480 --> 0:01:31.959 would joining me is an expert in constitutional law, David Super, 0:01:32.120 --> 0:01:35.720 a professor at Georgetown Law School. How would you describe 0:01:35.800 --> 0:01:42.160 the Chief Justice's response to the unresolved lead investigation, the 0:01:42.280 --> 0:01:46.319 ethics concerns raised about Justice Thomas, his wife, and the 0:01:46.400 --> 0:01:49.680 low public approval of the court. I think the Chief 0:01:49.760 --> 0:01:52.640 Justice is trying to keep all of these things in 0:01:52.800 --> 0:01:58.640 house with the Court and avoid public scrutiny and criticism. 0:01:58.960 --> 0:02:03.720 Is strategy seems to be focused largely on public perception 0:02:04.040 --> 0:02:07.840 rather than on getting at the underlying problems. Roberts has said, 0:02:07.880 --> 0:02:11.760 timing again that the Court isn't political. It exists separate 0:02:11.800 --> 0:02:15.800 from the political branches. But it seems like the Court 0:02:15.840 --> 0:02:20.240 has become political in the way it makes decisions recently. 0:02:21.000 --> 0:02:24.399 Is that something that he should address. I'm not sure 0:02:24.440 --> 0:02:27.960 that there's much he can do. It is in his 0:02:28.080 --> 0:02:33.799 interest to have the Court regarded as being above politics, 0:02:33.800 --> 0:02:36.840 so he's going to keep saying that. But the fact 0:02:37.000 --> 0:02:40.680 is that at least five of the justices are voting 0:02:40.720 --> 0:02:47.799 pretty consistently along ideological lines and disregarding precedents, indeed disregarding 0:02:48.040 --> 0:02:51.320 some of their own precedent when the implications affect their 0:02:51.360 --> 0:02:55.120 political preferences in different ways. There's nothing that the Chief 0:02:55.160 --> 0:02:58.720 Justice can do to obscure that fact. The most he 0:02:58.760 --> 0:03:02.800 can do is against Some of them are politicized decisions, 0:03:02.800 --> 0:03:07.320 which he has, but his vote doesn't matter. I remember 0:03:07.760 --> 0:03:14.200 back in after former President Trump called judges partisan, Roberts 0:03:14.240 --> 0:03:16.280 did speak out and he said, you know, they're not 0:03:16.360 --> 0:03:20.400 Obama judges or Trump judges, so why wouldn't he do 0:03:20.520 --> 0:03:24.120 something similar now when you know public approval of the 0:03:24.160 --> 0:03:28.160 Court is so low and there are so many issues 0:03:28.240 --> 0:03:32.480 surrounding the Court outside of the decisions that it makes. 0:03:32.520 --> 0:03:35.320 Because he can't do very much about them. The only 0:03:35.360 --> 0:03:38.600 people he's really accountable to are the other eight justices, 0:03:39.400 --> 0:03:45.440 and they're not supportive of his doing the kinds of 0:03:45.480 --> 0:03:48.480 things that would take to resolve these questions. One of 0:03:48.560 --> 0:03:53.800 them either leaked the opinion or likely has staff who 0:03:53.840 --> 0:03:57.360 did and may be aware of that. He certainly isn't 0:03:57.400 --> 0:04:05.640 going to get support for exposing that from the guilty party. 0:04:06.120 --> 0:04:10.760 He did as much of an investigation as he could 0:04:11.840 --> 0:04:16.320 without going outside of the building or ruffling the justices 0:04:16.400 --> 0:04:20.480 feathers on the ethics matter. There have been ethics issues 0:04:20.640 --> 0:04:25.120 raised before about justices, and there is not an effective 0:04:25.120 --> 0:04:28.480 outside means of a drafting it. Unless it rises to 0:04:28.560 --> 0:04:32.360 the level that the other justices are themselves willing to 0:04:32.640 --> 0:04:35.960 take action against one of their own, which is very rare, 0:04:36.320 --> 0:04:38.880 then he doesn't have much leverage there either. Is the 0:04:38.920 --> 0:04:42.440 way he handled the leak investigation sort of symptomatic of 0:04:42.520 --> 0:04:47.120 his approach. He had someone inside the court investigate instead of, 0:04:47.120 --> 0:04:50.320 as you mentioned, outside agency like the FBI, so he 0:04:50.360 --> 0:04:53.679 could control it. And I wonder if he really wanted 0:04:53.760 --> 0:04:57.000 to find out who leaked the draft opinion, or if 0:04:57.360 --> 0:05:00.800 in fact he did find out and just hasn't told us. 0:05:01.040 --> 0:05:05.159 I would be surprised if his bad faith rose to 0:05:05.279 --> 0:05:08.800 that level. I think he wanted to find out, but 0:05:08.880 --> 0:05:15.919 not so badly as to anger other justices. So, for example, 0:05:15.960 --> 0:05:19.919 it appears the investigation only looked at them, not justices, 0:05:20.080 --> 0:05:24.440 and to look at justices would create a lot of 0:05:24.680 --> 0:05:29.200 unpleasantness and discomfort within the nine, and he was unwilling 0:05:29.240 --> 0:05:32.280 to do that. If, as many people are speculated, the 0:05:32.400 --> 0:05:35.359 leak was by a justice, then this isn't going to 0:05:35.400 --> 0:05:38.240 find it because he was only looking at people who 0:05:38.279 --> 0:05:41.920 worked justices. I think he found a staff member who 0:05:42.000 --> 0:05:44.560 leaked it. He probably would have released that. But my 0:05:44.760 --> 0:05:48.160 suspicion from this is that the leak was a justice, 0:05:48.440 --> 0:05:52.400 and he's not prepared to deal with the blowback that 0:05:52.440 --> 0:05:54.839 he would get from exposing such a justice if he 0:05:54.880 --> 0:05:57.599 knows who it was. Some of the justices seem to 0:05:57.640 --> 0:06:01.640 be having a sort of debate in public by responding 0:06:01.720 --> 0:06:05.320 to what others have said in their public appearances. So 0:06:05.440 --> 0:06:08.080 Robert said, the mere disagreement with the ruling is not 0:06:08.160 --> 0:06:11.440 a basis for questioning the legitimacy of the court, and 0:06:11.480 --> 0:06:14.760 then two weeks later, Justice Kagan seemed to be replying 0:06:14.800 --> 0:06:17.400 to him, almost saying that Americans are bound to lose 0:06:17.440 --> 0:06:20.000 confidence in a court that looks like an extension of 0:06:20.000 --> 0:06:23.359 the political process. Does it seem as if there's some 0:06:24.120 --> 0:06:27.560 some problem among the justices. Well, I agree with both 0:06:27.600 --> 0:06:32.039 of those statements, so it's not necessarily a debate. There 0:06:32.040 --> 0:06:35.840 are many decisions of the Court recently and otherwise that 0:06:35.960 --> 0:06:40.240 I disagree with, but whose legitimacy I accept. My job 0:06:40.360 --> 0:06:43.800 is teaching law students such decisions. So I think the 0:06:43.880 --> 0:06:47.719 Chief Justice is right, but I think what Justice Kagan 0:06:47.839 --> 0:06:50.680 is saying is that the problems here are much broader 0:06:50.680 --> 0:06:53.839 than Justice agreeing with the opinions. They rise to the 0:06:53.960 --> 0:06:57.919 level of believing with the opinions are politicized. And I 0:06:57.960 --> 0:07:00.599 think she's right about that as well. There was this 0:07:00.760 --> 0:07:05.880 unprecedented delay in issuing the first opinion of the term, 0:07:05.920 --> 0:07:10.240 and Justice Kavanaugh blamed it recently on the mix of cases. 0:07:10.320 --> 0:07:14.080 If the Justice has heard in October and November, do 0:07:14.120 --> 0:07:18.000 you think it's more than just that. I think it 0:07:18.160 --> 0:07:22.320 is probably more or less what Justice Kavanaugh said. Now, 0:07:22.760 --> 0:07:26.400 how that mix effects what the Court does is another matter. 0:07:26.760 --> 0:07:29.960 Tradition on the Court is that they don't issue opinions 0:07:30.160 --> 0:07:33.920 until any justices who want to write the sending opinions 0:07:33.920 --> 0:07:39.120 had finished with the solids six three supermajority of conservatives. 0:07:39.280 --> 0:07:42.800 They won't have any trouble getting to a majority on 0:07:43.000 --> 0:07:47.360 politically charged cases, but they may have felt that they 0:07:47.360 --> 0:07:50.520 needed to wait for the centers to finish, or there 0:07:50.520 --> 0:07:53.600 may have been a back and forth. Typically, once a 0:07:54.120 --> 0:07:57.920 descent has been circulated, the justices and the majority want 0:07:58.000 --> 0:08:01.160 to change the majority to respond to the defense and 0:08:01.240 --> 0:08:04.040 the the centers often than want to further change their 0:08:04.360 --> 0:08:08.320 descent to respond to the new points in the majority opinion, 0:08:08.360 --> 0:08:11.720 and that process could have taken quite a while. That 0:08:11.720 --> 0:08:15.440 wouldn't be surprising or a polarized court. After the leak, 0:08:15.800 --> 0:08:19.440 Justice Clarence Thomas said something to the effect that the 0:08:19.480 --> 0:08:23.120 trust has gone and you're looking over your shoulder. But 0:08:23.200 --> 0:08:26.120 does it seem as if it's such a different court 0:08:26.280 --> 0:08:29.080 then the court was, you know a few years ago 0:08:29.200 --> 0:08:32.520 when Justice Scalia was on the court. It's not the same. 0:08:32.920 --> 0:08:38.120 It's not the same because they're no longer any meaningful 0:08:38.160 --> 0:08:42.160 swing votes. In a certain sense. The Chief Justice is 0:08:42.200 --> 0:08:45.880 to swing vote, but he swings between a six three 0:08:45.920 --> 0:08:49.600 and five four conservative majority doesn't change the outcome. Once 0:08:49.640 --> 0:08:52.920 in a great while, one of the other justices will 0:08:52.960 --> 0:08:56.640 part company with their colleagues, and if two of them do, 0:08:56.920 --> 0:08:59.720 then you may have a different results, but that almost 0:08:59.720 --> 0:09:05.720 never happens. I think oral argument therefore feels less lively 0:09:06.440 --> 0:09:09.600 because there are fewer doubts about how the cases are 0:09:09.600 --> 0:09:13.280 going to come out with the super majority. In New 0:09:13.320 --> 0:09:17.520 England School of Law, event Roberts said, the Framers established 0:09:17.520 --> 0:09:19.440 a court in a way that we would not care 0:09:19.559 --> 0:09:23.959 about that criticism. Explaining his approach to dealing with criticism 0:09:23.960 --> 0:09:26.160 of the court, which is not to deal with it. 0:09:26.200 --> 0:09:29.000 I guess do you agree with his interpretation of the 0:09:29.040 --> 0:09:32.840 Framer's intent. I think his approach is too simplistic. The 0:09:32.920 --> 0:09:38.800 Framers did not intend for justices to entrench themselves on 0:09:38.920 --> 0:09:43.520 the Court for long periods and take politified actions to 0:09:43.760 --> 0:09:47.119 reverse the results of election. The first two chief Justices 0:09:47.200 --> 0:09:49.840 serve for only a few years each. Most of the 0:09:50.000 --> 0:09:54.800 justices from the original area it served very brief terms. 0:09:55.080 --> 0:09:58.240 Chief Justice Marshall departed from that, serving for a very 0:09:58.280 --> 0:10:01.400 long time. But if you can judge at original intent 0:10:01.600 --> 0:10:04.760 by what the early justices did, they saw it as 0:10:04.840 --> 0:10:08.800 a temporary role, not one where they could be thrown 0:10:08.880 --> 0:10:12.720 out by the public if their decisions were unpopular, but 0:10:12.840 --> 0:10:16.520 also not one where the justice is appointed long long 0:10:16.559 --> 0:10:20.520 ago would continue to hand down decisions. So this is 0:10:20.720 --> 0:10:24.120 a very different court from the founders. And the notion 0:10:24.200 --> 0:10:28.199 that the Court would be impervious to election results and 0:10:28.320 --> 0:10:32.960 indeed would strike down laws passed by majorities voted in 0:10:33.080 --> 0:10:37.160 by the public is certainly not an original concept. Indeed, 0:10:37.480 --> 0:10:40.440 the ideas of the Supreme Court could strike down laws 0:10:40.480 --> 0:10:43.880 Congress passed at all was not part of the original 0:10:44.320 --> 0:10:47.560 document in the Constitution. It was added later in Marbury 0:10:47.679 --> 0:10:51.480 versus Madison by Chief Justice Marshal. Should the Supreme Court 0:10:51.600 --> 0:10:55.760 justices have a judicial ethics code? All other federal judges 0:10:56.320 --> 0:10:59.680 follow one? And why should judges with the most power 0:10:59.800 --> 0:11:03.440 to affect the country and the law the exempt. It 0:11:03.559 --> 0:11:08.080 seems counterintuitive, And I know the American Bar Association passed 0:11:08.080 --> 0:11:11.800 a resolution urging the High Court to adopt ethics rules. 0:11:11.920 --> 0:11:16.200 Why do they resist? They resist because they can. No 0:11:16.280 --> 0:11:18.480 one is in a position to impose it on them. 0:11:19.000 --> 0:11:21.840 But there really is no defense for them doing that. 0:11:23.000 --> 0:11:25.679 I suppose the argument would be that if there's an 0:11:25.679 --> 0:11:30.760 ethics code, um, then people could use ethics allegations to 0:11:30.800 --> 0:11:33.839 try to influence what judges too. But that's true in 0:11:33.920 --> 0:11:39.400 any court, and there are methods for punishing that faith accusations, 0:11:39.440 --> 0:11:43.240 whether against judges or anybody else. Uh. There really is 0:11:43.280 --> 0:11:47.240 no justification for not having an ethics code. Uh. And 0:11:48.200 --> 0:11:54.199 when justices have done things that call their impartiality, and 0:11:54.280 --> 0:11:59.240 the question yet justice for working closely with the Johnson 0:11:59.280 --> 0:12:02.320 administration shin at the same time he was deciding cases 0:12:02.800 --> 0:12:09.720 that involved that administration or Justice Lea, the personally close 0:12:09.840 --> 0:12:16.640 to uh sitting vice president or the matters being raised. Now, 0:12:17.080 --> 0:12:20.840 there is a strong interest in the court to have 0:12:21.440 --> 0:12:25.439 these matters. There's also a wrong clear lines, but there's 0:12:25.480 --> 0:12:28.959 not a strong interest in individual justices for that. Could 0:12:28.960 --> 0:12:32.440 Congress force a code, a judicial code, on the justices 0:12:32.559 --> 0:12:35.200 or it's just totally up to them. I think there's 0:12:35.240 --> 0:12:38.640 an argument Congress could do that. There are some state 0:12:38.840 --> 0:12:45.400 constitutions that give the High Court absolute control over the judiciary. 0:12:46.240 --> 0:12:49.839 That's not as clear in Article three in the Federal Constitution. 0:12:50.480 --> 0:12:53.640 So I think it is entirely possible that Congress could 0:12:53.640 --> 0:12:58.680 do that. Congress may limit the court's jurisdiction, and if 0:12:58.720 --> 0:13:01.679 it can do that, it say that the Court does 0:13:01.720 --> 0:13:05.520 not have jurisdiction to hear any case in which a 0:13:05.720 --> 0:13:08.880 justice has the conflict of interest but has failed to 0:13:08.920 --> 0:13:11.880 refuse him or herself. I mean, does the Chief Justice 0:13:11.920 --> 0:13:15.960 have any power beyond what any other justice has. He 0:13:16.080 --> 0:13:18.960 does have some powers that I'm not sure whether they help. 0:13:19.040 --> 0:13:22.120 He can, for example, in any decision where he's in 0:13:22.160 --> 0:13:24.800 the majority, he can write the opinion if he wants 0:13:24.880 --> 0:13:30.560 to um. And he could write more moderate, more precedent 0:13:30.760 --> 0:13:35.160 honoring opinions on some of these cases if he's in 0:13:35.200 --> 0:13:37.640 the majority. But that's not going to deal with the 0:13:37.640 --> 0:13:41.360 fundamental concerned people have that the outcome are the winners 0:13:41.400 --> 0:13:45.600 in these cases are ordained by politics. There have been, 0:13:45.640 --> 0:13:50.040 you know, a lot of suggestions of about ways to 0:13:50.120 --> 0:13:53.960 change the court, to pack the court, to add term limits. 0:13:54.240 --> 0:13:56.840 What's your take on whether or not something should be 0:13:56.880 --> 0:13:59.719 done to change the court in that way. I think 0:13:59.760 --> 0:14:02.560 the should be done to change the court. I absolutely 0:14:02.559 --> 0:14:06.560 think that, but I don't like the proposals that are 0:14:06.760 --> 0:14:10.440 currently popular. I've actually written an article on what I 0:14:10.480 --> 0:14:13.160 think should be done. I think the proper approach is 0:14:13.200 --> 0:14:15.680 to adopt the one that New York State has, which 0:14:15.760 --> 0:14:21.000 is a nonpartisan commission picking a set of candidates for 0:14:21.080 --> 0:14:28.720 each position, and if the President chooses one of those candidates, 0:14:28.840 --> 0:14:31.440 then they can go through the Senate without a filibuster. 0:14:31.560 --> 0:14:34.360 The President would be free to nominate someone else, but 0:14:34.520 --> 0:14:37.680 that person would not have protection against the filibuster. That 0:14:37.760 --> 0:14:41.320 would get us more moderate Democrats and more moderate Republicans, 0:14:41.480 --> 0:14:44.080 and we'd go back to having genuine swing votes on 0:14:44.120 --> 0:14:48.400 the Court. Thanks David. That's Professor David super of Georgetown 0:14:48.440 --> 0:14:52.960 Law School. In the wake of the shooting down of 0:14:53.000 --> 0:14:56.400 a Chinese spy balloon over the coast of South Carolina 0:14:56.560 --> 0:14:59.960 and three other objects. Lawmakers are beginning to look towards 0:15:00.040 --> 0:15:03.320 how these kinds of surveillance efforts should be handled between 0:15:03.360 --> 0:15:06.560 the US and China, including through the data collection of 0:15:06.640 --> 0:15:10.400 companies like TikTok. The chairman of the House Oversight Committee, 0:15:10.440 --> 0:15:15.160 Republican Representative James Coomer, said Congress shouldn't rule out further 0:15:15.240 --> 0:15:19.240 restrictions on these companies, particularly on how data is gathered. 0:15:19.760 --> 0:15:23.800 It's a concern for high level people in the government 0:15:23.840 --> 0:15:28.200 because with that data byte dance can can tell where 0:15:28.240 --> 0:15:30.360 you are. If you're using TikTok, they know where your 0:15:30.400 --> 0:15:33.720 location is, so that would be a concern. And TikTok 0:15:33.880 --> 0:15:37.400 is facing a growing number of class action lawsuits that 0:15:37.480 --> 0:15:41.200 it's in app browser illegally tracks users clicks and key 0:15:41.240 --> 0:15:44.960 strokes in violation of a federal wire tap law, a 0:15:45.040 --> 0:15:49.440 claim that will test novel privacy litigation issues. The suits 0:15:49.480 --> 0:15:53.360 say that TikTok could become privy to private information such 0:15:53.400 --> 0:15:57.560 as a user's credit card accounts, mental health, or sexual preferences. 0:15:57.880 --> 0:16:01.160 Joining me is privacy and class action attorney David Straight, 0:16:01.480 --> 0:16:04.200 a partner to cello and love it. There are nearly 0:16:04.280 --> 0:16:08.840 one dozen proposed class actions across five states that have 0:16:08.920 --> 0:16:13.680 been filed against TikTok since November. Can you explain the 0:16:13.720 --> 0:16:17.440 basis of these actions, you know, the causes of action? Yes, 0:16:17.560 --> 0:16:22.680 Briefly speaking, all of these complaints allege that TikTok is 0:16:22.760 --> 0:16:28.640 injecting script as a JavaScript code into the websites that 0:16:28.680 --> 0:16:32.960 are being visited through the TikTok app. And this script 0:16:33.120 --> 0:16:37.080 allows for session replay. So this is not you know, 0:16:37.160 --> 0:16:42.360 the traditional sort of tracking across the Internet where the 0:16:42.480 --> 0:16:45.680 actual website, you know, the u r L with the 0:16:45.720 --> 0:16:49.040 IP address and maybe the file path would be recorded 0:16:49.040 --> 0:16:52.680 by a third party. The session replay code allows the 0:16:52.720 --> 0:16:57.480 recipients of the information two observe right down to the 0:16:57.560 --> 0:17:01.080 key stroke of what's going on on those sites. So, 0:17:01.720 --> 0:17:07.600 these cases all alleged that TikTok is violating numerous laws, 0:17:07.640 --> 0:17:12.960 including the wiretop Law, which forbid the interception of communications 0:17:13.000 --> 0:17:17.439 over the wires in flight, meaning real time contemporary communications 0:17:17.680 --> 0:17:20.760 without the consent of at least one party to the 0:17:20.760 --> 0:17:25.520 communication or cord order. What kind of information is TikTok 0:17:25.600 --> 0:17:29.040 allegedly mining? Do we know? Well, when you say mining, 0:17:29.600 --> 0:17:34.679 it's unclear what use TikTok is making of the data. Typically, 0:17:35.000 --> 0:17:38.639 when a third party monitors Internet use, the data is 0:17:38.680 --> 0:17:42.480 not simply stored in the file. Typically inferences are made 0:17:42.760 --> 0:17:46.439 right so profiles are created and inferences are made based 0:17:46.480 --> 0:17:49.480 on one's activity, where one visits from, where, who you are, 0:17:49.920 --> 0:17:52.720 what sort of activity has done so well, I don't 0:17:52.800 --> 0:17:57.280 know what precisely TikTok is using with the data. We 0:17:57.359 --> 0:17:59.600 do have a sense of what data is being gathered 0:17:59.640 --> 0:18:02.600 through the app when users click on links that bring 0:18:02.640 --> 0:18:05.640 them to first party websites, and what would that be. 0:18:05.880 --> 0:18:09.560 So the session replay the script allows more than just 0:18:09.600 --> 0:18:12.160 the gathering of the r L. So it would be 0:18:12.240 --> 0:18:14.520 for example, forms that are filled out. It could be 0:18:15.080 --> 0:18:19.200 navigating the website from page to page, deeper and deeper down, 0:18:19.359 --> 0:18:22.000 maybe choices that are made on the website, information that's 0:18:22.040 --> 0:18:25.760 provided into various places on the website, into forms, etcetera. 0:18:25.800 --> 0:18:29.199 It can be fairly profound what information can be gathered. So, 0:18:29.280 --> 0:18:31.960 for example, if a person is filling out a health form, 0:18:32.160 --> 0:18:37.600 all that personal information is entered. Now are these claims 0:18:37.640 --> 0:18:42.600 by the plaintiffs novel claims or are they claims that 0:18:42.680 --> 0:18:46.280 have been tried before in a kind of a different way. 0:18:46.960 --> 0:18:49.880 So session replay is fairly new. You know. There were 0:18:49.960 --> 0:18:54.680 some interesting articles published as early as on this topic, 0:18:55.040 --> 0:18:58.359 so it's not a new technology this year. It's been 0:18:58.400 --> 0:19:02.359 around for a while. But the claims are based on older, 0:19:02.440 --> 0:19:06.200 tried and true plan. The Wiretap Act, originally passed by 0:19:06.240 --> 0:19:09.280 Congress in nineteen sixty eight, applied the telephone calls, that's 0:19:09.280 --> 0:19:13.280 the traditional nineteen sixties and nineteen seventies style, you know, 0:19:13.320 --> 0:19:16.359 bugging of a phone and see these. But then in 0:19:16.480 --> 0:19:20.000 the early nineteen eighties it was understood that increasing number 0:19:20.040 --> 0:19:23.000 of communications were happening by a computer and then and 0:19:23.400 --> 0:19:26.320 through this submerging technology which became known as the Internet. 0:19:26.560 --> 0:19:31.200 So in the Wiretap Act was updated to include computer communications. 0:19:31.480 --> 0:19:35.760 It was the Electronic Communications Privacy Act which then updated 0:19:35.760 --> 0:19:38.640 and incorporated the old wire Tap Act. So we're going 0:19:38.680 --> 0:19:42.600 back now decades. It's understood that the interception of communications, 0:19:42.600 --> 0:19:46.560 even over computers, can be a wire tap violation. So 0:19:46.680 --> 0:19:51.760 in these cases we have Wiretap Act claims, and those 0:19:51.760 --> 0:19:54.840 are long ago held to apply to the Internet communications 0:19:54.840 --> 0:19:59.439 by design in the statute, and certainly the interception of 0:19:59.680 --> 0:20:03.679 a r L even just a link to a website, 0:20:04.119 --> 0:20:06.600 assuming it's not just the I P address you give 0:20:06.600 --> 0:20:12.199 you hypothetical www dot cnn dot com. Well, that may 0:20:12.280 --> 0:20:15.359 or may not be the content of the communication that 0:20:15.400 --> 0:20:19.240 would give rise to a wiretap claim. But certainly deeper 0:20:19.280 --> 0:20:22.440 into the website, when you're talking about articles that are 0:20:22.640 --> 0:20:26.000 viewed on CNN dot com, certainly search queries and other 0:20:26.040 --> 0:20:29.359 activities on the website, absolutely those would be content of 0:20:29.359 --> 0:20:33.879 the communication and therefore implicating a possible wire tap claim here, 0:20:34.600 --> 0:20:38.800 because we have session replay technology, we're talking not just 0:20:38.920 --> 0:20:42.000 about the U r L visited, the clicking on the 0:20:42.040 --> 0:20:44.520 link and then visiting the website, you know, through the 0:20:45.000 --> 0:20:48.240 TikTok after you know the browser, but we're talking about 0:20:48.280 --> 0:20:52.119 activities on the website that would then allegedly be captured 0:20:52.160 --> 0:20:55.480 by the session of replay technology. So in that sense, 0:20:55.640 --> 0:20:58.560 it's not a new novel claim, but it is the 0:20:58.640 --> 0:21:03.359 extension of the existing, well accepted application of the Wire's 0:21:03.359 --> 0:21:06.840 Appact to the interception of communications on the Internet. Do 0:21:07.119 --> 0:21:11.360 users of these kinds of apps have an expectation of privacy? Yes, 0:21:11.440 --> 0:21:15.000 absolutely that that is a given. So there's no question 0:21:15.520 --> 0:21:20.359 that there's a reasonable expectation of privacy and one's Internet browsing. Certainly, 0:21:20.359 --> 0:21:22.920 the aggregation of the browsing the ninth Circuit in particular 0:21:22.960 --> 0:21:25.800 has been out front and so finding not too many 0:21:25.880 --> 0:21:29.840 courts at this point would disagree. Certainly, multiple studies have 0:21:29.920 --> 0:21:34.520 confirmed that although you may be sharing your Internet browsing 0:21:34.520 --> 0:21:38.879 with a particular website that particular visit, the aggregation of 0:21:38.920 --> 0:21:42.359 your web browsing across multiple sites. Absolutely there's an expectation 0:21:42.400 --> 0:21:45.600 of privacy there. Even if we're talking about you know, 0:21:45.600 --> 0:21:48.840 what's traditionally thought of as non sensitive website that you 0:21:48.920 --> 0:21:53.160 go to, you know, Walmart dot com to buy a towel. There, 0:21:53.160 --> 0:21:54.720 maybe some people and they say, well, is that really 0:21:54.760 --> 0:21:57.320 a private issue? Well it is, in fact, Congress said, 0:21:57.359 --> 0:22:01.080 so that's why the Wire's at Act exists. That private communications, 0:22:01.119 --> 0:22:04.600 there's absolutely reasonable expectation of privacy, and that's why the 0:22:04.600 --> 0:22:07.680 original wire Tap Act was passed. Once we start talking 0:22:07.680 --> 0:22:10.880 about the aggregation and of your web browsing, no question, 0:22:11.400 --> 0:22:14.119 that's generally accept that there would be a reasonable expectation 0:22:14.160 --> 0:22:17.879 of privacy. Now, your question, specifically, does that expectation of 0:22:17.960 --> 0:22:22.960 privacy continue within the TikTok app? Specific to TikTok i 0:22:22.960 --> 0:22:25.800 would say yes. Certainly these cases that are being filed 0:22:25.840 --> 0:22:29.760 would say yes. But that reasonable expectation is not a 0:22:29.800 --> 0:22:33.000 precondition to the application of the Wiretap Act. All that's 0:22:33.080 --> 0:22:37.080 necessary is that there be the interception of a communication 0:22:37.160 --> 0:22:40.280 across the wires in flight, and communication includes the content 0:22:40.520 --> 0:22:44.479 of the communication without consent, full stop. That's the claim. 0:22:44.880 --> 0:22:47.520 So that's why these claims under the wire Tap Act 0:22:47.920 --> 0:22:50.440 are so powerful, because we don't need to ask the 0:22:50.520 --> 0:22:53.840 question of whether a reasonable person has an expectation of 0:22:53.840 --> 0:22:57.080 privacy or whether an individual plaintiffs might have an expectation 0:22:57.080 --> 0:22:59.879 of privacy. The wire Tap Act doesn't care. It's simply 0:23:00.000 --> 0:23:04.880 says the interception was unbowful. A TikTok spokesperson said, would 0:23:04.880 --> 0:23:08.879 you not collect keystroke or text inputs through this JavaScript code? 0:23:09.160 --> 0:23:13.679 It's only used for debugging, trouble suiting and performance monitoring. 0:23:14.200 --> 0:23:16.960 Is there a clear way for them to prove that? 0:23:17.320 --> 0:23:20.800 There will be two ways that they can pursue that defense. 0:23:21.040 --> 0:23:23.440 First of all, I'm not quite sure whether that's a 0:23:23.480 --> 0:23:26.760 complete defense to what's being ledged. Even if what they're 0:23:26.760 --> 0:23:29.200 saying is true to the letter of their defense, I'm 0:23:29.200 --> 0:23:31.560 not sure that would be a complete defense anyway. We 0:23:31.600 --> 0:23:33.960 would have to look at the terms of service and 0:23:34.000 --> 0:23:37.320 the privacy policy and other governing documents and see whether 0:23:37.560 --> 0:23:41.080 that defense would work, whether that limited gathering or limited 0:23:41.160 --> 0:23:44.280 use of gathering would be permissible, because I don't know 0:23:44.359 --> 0:23:46.399 the details there. But there are two places where that 0:23:46.400 --> 0:23:48.159 defense could be raised. One could be at the at 0:23:48.200 --> 0:23:52.199 the motions dismiss phase. For the non lawyers listening, the 0:23:52.240 --> 0:23:55.080 motion to dismiss phase is testing the legal sufficiency of 0:23:55.080 --> 0:23:59.160 the outations, where the court will have to assess if 0:23:59.320 --> 0:24:03.560 it's true what's being alleged. Is the allegation legally sufficient 0:24:03.600 --> 0:24:07.359 to raise this claim? It's not usually appropriate at the 0:24:07.440 --> 0:24:09.360 stage for the defended to say it, but I don't 0:24:09.359 --> 0:24:12.479 do that. Sometimes there can be some allegations that are 0:24:12.480 --> 0:24:16.000 so atlantish or so obviously wrong they can be defended 0:24:16.000 --> 0:24:19.240 at the motion to this misspace, but usually not. Typically 0:24:19.480 --> 0:24:22.479 a defense of what I didn't do it um is 0:24:22.520 --> 0:24:25.840 done later in the case, after discovery, after defendants have 0:24:25.880 --> 0:24:28.240 an opportunity to see if they're telling the truth. So 0:24:28.440 --> 0:24:31.679 the evaluation at the first stage is what is the 0:24:31.720 --> 0:24:34.840 basis of the information? Is it just information and belief? 0:24:34.960 --> 0:24:37.639 Is it through testing? What is the credibility at a 0:24:37.720 --> 0:24:41.080 very basic level, and then the case proceeds to discovery. 0:24:41.200 --> 0:24:44.720 Then there's a second opportunity that the defendant will have. Here, 0:24:44.720 --> 0:24:48.720 it's multiple defendants will have the opportunity after discovery to say, hey, 0:24:48.760 --> 0:24:51.400 you haven't proven your case that no reasonable jury could 0:24:51.440 --> 0:24:54.760 believe your version of the facts. That would be a 0:24:55.040 --> 0:24:58.639 motion for summary judgment after the parties have had an 0:24:58.680 --> 0:25:03.600 opportunity to test the claims. One of the law firms 0:25:03.640 --> 0:25:09.239 involved here wants to consolidate nine of the cases and 0:25:09.320 --> 0:25:13.200 to multi district litigation. Does it seem like there is 0:25:13.280 --> 0:25:20.520 so much similarity in the allegations that they should be consolidated. Well, 0:25:20.560 --> 0:25:25.080 the judicial panel and multi district litigation will ultimately make 0:25:25.160 --> 0:25:29.440 that decision. And the focus is typically on efficiencies and discovery, 0:25:29.760 --> 0:25:31.840 and you know there's I think some people who aren't 0:25:31.880 --> 0:25:35.280 in the industry may not understand that. Technically speaking, if 0:25:35.280 --> 0:25:37.880 a case goes to trial, the case of them become 0:25:37.960 --> 0:25:40.480 just aggregated sent back to their home district. That's a 0:25:40.560 --> 0:25:46.240 very rare situation. But the focus on the grouping of 0:25:46.240 --> 0:25:49.520 the cases together and then transferring them to a common 0:25:49.560 --> 0:25:54.240 court that is actually done for efficiency in discovery. So 0:25:54.400 --> 0:25:58.000