Supreme Court Criticisms; Does TikTok Wiretap Users?

addressed head on. Chief Justice John Roberts has spoken only twice publicly in the past year, behind closed door audiences of fellow judges, lawyers, and judicial staff at Federal Circuit Court conferences. The only reference he made to the public disapproval of the Court was to say that Supreme Court decisions and controversial cases have always been subject to intense criticism, but it's a mistake to call into question the legitimacy

of the Court. The legitimacy of the Court rests on the fact that it satisfies the requirements of the of the Statute and that the Constitution needs, as John Marshall put it, somebody to say what the law is, and

that's the role of the Supreme Court. I don't understand the connection between opinions that people disagree with and the legitimacy of the Court if the Court doesn't retain its legitimate function of interpreting the Constitution, I'm not sure who would joining me is an expert in constitutional law, David Super,

a professor at Georgetown Law School. How would you describe the Chief Justice's response to the unresolved lead investigation, the ethics concerns raised about Justice Thomas, his wife, and the low public approval of the court. I think the Chief Justice is trying to keep all of these things in house with the Court and avoid public scrutiny and criticism. Is strategy seems to be focused largely on public perception rather than on getting at the underlying problems. Roberts has said,

timing again that the Court isn't political. It exists separate from the political branches. But it seems like the Court has become political in the way it makes decisions recently. Is that something that he should address. I'm not sure that there's much he can do. It is in his interest to have the Court regarded as being above politics,

so he's going to keep saying that. But the fact is that at least five of the justices are voting pretty consistently along ideological lines and disregarding precedents, indeed disregarding some of their own precedent when the implications affect their political preferences in different ways. There's nothing that the Chief Justice can do to obscure that fact. The most he can do is against Some of them are politicized decisions,

which he has, but his vote doesn't matter. I remember back in after former President Trump called judges partisan, Roberts did speak out and he said, you know, they're not Obama judges or Trump judges, so why wouldn't he do something similar now when you know public approval of the Court is so low and there are so many issues surrounding the Court outside of the decisions that it makes.

Because he can't do very much about them. The only people he's really accountable to are the other eight justices, and they're not supportive of his doing the kinds of things that would take to resolve these questions. One of them either leaked the opinion or likely has staff who did and may be aware of that. He certainly isn't going to get support for exposing that from the guilty party.

He did as much of an investigation as he could without going outside of the building or ruffling the justices feathers on the ethics matter. There have been ethics issues raised before about justices, and there is not an effective outside means of a drafting it. Unless it rises to the level that the other justices are themselves willing to take action against one of their own, which is very rare,

then he doesn't have much leverage there either. Is the way he handled the leak investigation sort of symptomatic of his approach. He had someone inside the court investigate instead of, as you mentioned, outside agency like the FBI, so he could control it. And I wonder if he really wanted to find out who leaked the draft opinion, or if in fact he did find out and just hasn't told us. I would be surprised if his bad faith rose to that level. I think he wanted to find out, but

not so badly as to anger other justices. So, for example, it appears the investigation only looked at them, not justices, and to look at justices would create a lot of unpleasantness and discomfort within the nine, and he was unwilling to do that. If, as many people are speculated, the leak was by a justice, then this isn't going to find it because he was only looking at people who worked justices. I think he found a staff member who

leaked it. He probably would have released that. But my suspicion from this is that the leak was a justice, and he's not prepared to deal with the blowback that he would get from exposing such a justice if he knows who it was. Some of the justices seem to be having a sort of debate in public by responding

to what others have said in their public appearances. So Robert said, the mere disagreement with the ruling is not a basis for questioning the legitimacy of the court, and then two weeks later, Justice Kagan seemed to be replying to him, almost saying that Americans are bound to lose confidence in a court that looks like an extension of the political process. Does it seem as if there's some some problem among the justices. Well, I agree with both

of those statements, so it's not necessarily a debate. There are many decisions of the Court recently and otherwise that I disagree with, but whose legitimacy I accept. My job is teaching law students such decisions. So I think the Chief Justice is right, but I think what Justice Kagan is saying is that the problems here are much broader than Justice agreeing with the opinions. They rise to the level of believing with the opinions are politicized. And I

think she's right about that as well. There was this unprecedented delay in issuing the first opinion of the term, and Justice Kavanaugh blamed it recently on the mix of cases. If the Justice has heard in October and November, do you think it's more than just that. I think it is probably more or less what Justice Kavanaugh said. Now, how that mix effects what the Court does is another matter.

Tradition on the Court is that they don't issue opinions until any justices who want to write the sending opinions had finished with the solids six three supermajority of conservatives. They won't have any trouble getting to a majority on politically charged cases, but they may have felt that they needed to wait for the centers to finish, or there

may have been a back and forth. Typically, once a descent has been circulated, the justices and the majority want to change the majority to respond to the defense and the the centers often than want to further change their descent to respond to the new points in the majority opinion, and that process could have taken quite a while. That wouldn't be surprising or a polarized court. After the leak, Justice Clarence Thomas said something to the effect that the

trust has gone and you're looking over your shoulder. But does it seem as if it's such a different court then the court was, you know a few years ago when Justice Scalia was on the court. It's not the same. It's not the same because they're no longer any meaningful swing votes. In a certain sense. The Chief Justice is to swing vote, but he swings between a six three

and five four conservative majority doesn't change the outcome. Once in a great while, one of the other justices will part company with their colleagues, and if two of them do, then you may have a different results, but that almost never happens. I think oral argument therefore feels less lively because there are fewer doubts about how the cases are

going to come out with the super majority. In New England School of Law, event Roberts said, the Framers established a court in a way that we would not care about that criticism. Explaining his approach to dealing with criticism of the court, which is not to deal with it. I guess do you agree with his interpretation of the

Framer's intent. I think his approach is too simplistic. The Framers did not intend for justices to entrench themselves on the Court for long periods and take politified actions to reverse the results of election. The first two chief Justices serve for only a few years each. Most of the justices from the original area it served very brief terms. Chief Justice Marshall departed from that, serving for a very

long time. But if you can judge at original intent by what the early justices did, they saw it as a temporary role, not one where they could be thrown out by the public if their decisions were unpopular, but also not one where the justice is appointed long long ago would continue to hand down decisions. So this is a very different court from the founders. And the notion that the Court would be impervious to election results and indeed would strike down laws passed by majorities voted in

by the public is certainly not an original concept. Indeed, the ideas of the Supreme Court could strike down laws Congress passed at all was not part of the original document in the Constitution. It was added later in Marbury versus Madison by Chief Justice Marshal. Should the Supreme Court justices have a judicial ethics code? All other federal judges follow one? And why should judges with the most power

to affect the country and the law the exempt. It seems counterintuitive, And I know the American Bar Association passed a resolution urging the High Court to adopt ethics rules. Why do they resist? They resist because they can. No one is in a position to impose it on them. But there really is no defense for them doing that. I suppose the argument would be that if there's an ethics code, um, then people could use ethics allegations to

try to influence what judges too. But that's true in any court, and there are methods for punishing that faith accusations, whether against judges or anybody else. Uh. There really is no justification for not having an ethics code. Uh. And when justices have done things that call their impartiality, and the question yet justice for working closely with the Johnson administration shin at the same time he was deciding cases that involved that administration or Justice Lea, the personally close

to uh sitting vice president or the matters being raised. Now, there is a strong interest in the court to have these matters. There's also a wrong clear lines, but there's not a strong interest in individual justices for that. Could Congress force a code, a judicial code, on the justices or it's just totally up to them. I think there's an argument Congress could do that. There are some state constitutions that give the High Court absolute control over the judiciary.

That's not as clear in Article three in the Federal Constitution. So I think it is entirely possible that Congress could do that. Congress may limit the court's jurisdiction, and if it can do that, it say that the Court does not have jurisdiction to hear any case in which a justice has the conflict of interest but has failed to refuse him or herself. I mean, does the Chief Justice have any power beyond what any other justice has. He does have some powers that I'm not sure whether they help.

He can, for example, in any decision where he's in the majority, he can write the opinion if he wants to um. And he could write more moderate, more precedent honoring opinions on some of these cases if he's in the majority. But that's not going to deal with the fundamental concerned people have that the outcome are the winners in these cases are ordained by politics. There have been, you know, a lot of suggestions of about ways to change the court, to pack the court, to add term limits.

What's your take on whether or not something should be done to change the court in that way. I think the should be done to change the court. I absolutely think that, but I don't like the proposals that are currently popular. I've actually written an article on what I

think should be done. I think the proper approach is to adopt the one that New York State has, which is a nonpartisan commission picking a set of candidates for each position, and if the President chooses one of those candidates, then they can go through the Senate without a filibuster. The President would be free to nominate someone else, but

that person would not have protection against the filibuster. That would get us more moderate Democrats and more moderate Republicans, and we'd go back to having genuine swing votes on the Court. Thanks David. That's Professor David super of Georgetown Law School. In the wake of the shooting down of a Chinese spy balloon over the coast of South Carolina

and three other objects. Lawmakers are beginning to look towards how these kinds of surveillance efforts should be handled between the US and China, including through the data collection of companies like TikTok. The chairman of the House Oversight Committee, Republican Representative James Coomer, said Congress shouldn't rule out further restrictions on these companies, particularly on how data is gathered.

It's a concern for high level people in the government because with that data byte dance can can tell where you are. If you're using TikTok, they know where your location is, so that would be a concern. And TikTok is facing a growing number of class action lawsuits that it's in app browser illegally tracks users clicks and key strokes in violation of a federal wire tap law, a

claim that will test novel privacy litigation issues. The suits say that TikTok could become privy to private information such as a user's credit card accounts, mental health, or sexual preferences. Joining me is privacy and class action attorney David Straight, a partner to cello and love it. There are nearly one dozen proposed class actions across five states that have been filed against TikTok since November. Can you explain the

basis of these actions, you know, the causes of action? Yes, Briefly speaking, all of these complaints allege that TikTok is injecting script as a JavaScript code into the websites that are being visited through the TikTok app. And this script allows for session replay. So this is not you know, the traditional sort of tracking across the Internet where the actual website, you know, the u r L with the IP address and maybe the file path would be recorded

by a third party. The session replay code allows the recipients of the information two observe right down to the key stroke of what's going on on those sites. So, these cases all alleged that TikTok is violating numerous laws, including the wiretop Law, which forbid the interception of communications over the wires in flight, meaning real time contemporary communications without the consent of at least one party to the communication or cord order. What kind of information is TikTok

allegedly mining? Do we know? Well, when you say mining, it's unclear what use TikTok is making of the data. Typically, when a third party monitors Internet use, the data is not simply stored in the file. Typically inferences are made right so profiles are created and inferences are made based on one's activity, where one visits from, where, who you are, what sort of activity has done so well, I don't

know what precisely TikTok is using with the data. We do have a sense of what data is being gathered through the app when users click on links that bring them to first party websites, and what would that be. So the session replay the script allows more than just the gathering of the r L. So it would be

for example, forms that are filled out. It could be navigating the website from page to page, deeper and deeper down, maybe choices that are made on the website, information that's provided into various places on the website, into forms, etcetera. It can be fairly profound what information can be gathered. So, for example, if a person is filling out a health form,

all that personal information is entered. Now are these claims by the plaintiffs novel claims or are they claims that have been tried before in a kind of a different way. So session replay is fairly new. You know. There were some interesting articles published as early as on this topic, so it's not a new technology this year. It's been around for a while. But the claims are based on older,

tried and true plan. The Wiretap Act, originally passed by Congress in nineteen sixty eight, applied the telephone calls, that's the traditional nineteen sixties and nineteen seventies style, you know, bugging of a phone and see these. But then in the early nineteen eighties it was understood that increasing number of communications were happening by a computer and then and through this submerging technology which became known as the Internet.

So in the Wiretap Act was updated to include computer communications. It was the Electronic Communications Privacy Act which then updated and incorporated the old wire Tap Act. So we're going back now decades. It's understood that the interception of communications,

even over computers, can be a wire tap violation. So in these cases we have Wiretap Act claims, and those are long ago held to apply to the Internet communications by design in the statute, and certainly the interception of a r L even just a link to a website, assuming it's not just the I P address you give you hypothetical www dot cnn dot com. Well, that may or may not be the content of the communication that

would give rise to a wiretap claim. But certainly deeper into the website, when you're talking about articles that are viewed on CNN dot com, certainly search queries and other activities on the website, absolutely those would be content of the communication and therefore implicating a possible wire tap claim here, because we have session replay technology, we're talking not just about the U r L visited, the clicking on the link and then visiting the website, you know, through the

TikTok after you know the browser, but we're talking about activities on the website that would then allegedly be captured by the session of replay technology. So in that sense, it's not a new novel claim, but it is the extension of the existing, well accepted application of the Wire's Appact to the interception of communications on the Internet. Do users of these kinds of apps have an expectation of privacy? Yes, absolutely that that is a given. So there's no question

that there's a reasonable expectation of privacy and one's Internet browsing. Certainly, the aggregation of the browsing the ninth Circuit in particular has been out front and so finding not too many courts at this point would disagree. Certainly, multiple studies have confirmed that although you may be sharing your Internet browsing with a particular website that particular visit, the aggregation of your web browsing across multiple sites. Absolutely there's an expectation

of privacy there. Even if we're talking about you know, what's traditionally thought of as non sensitive website that you go to, you know, Walmart dot com to buy a towel. There, maybe some people and they say, well, is that really a private issue? Well it is, in fact, Congress said, so that's why the Wire's at Act exists. That private communications, there's absolutely reasonable expectation of privacy, and that's why the

original wire Tap Act was passed. Once we start talking about the aggregation and of your web browsing, no question, that's generally accept that there would be a reasonable expectation of privacy. Now, your question, specifically, does that expectation of privacy continue within the TikTok app? Specific to TikTok i would say yes. Certainly these cases that are being filed would say yes. But that reasonable expectation is not a

precondition to the application of the Wiretap Act. All that's necessary is that there be the interception of a communication across the wires in flight, and communication includes the content of the communication without consent, full stop. That's the claim. So that's why these claims under the wire Tap Act are so powerful, because we don't need to ask the question of whether a reasonable person has an expectation of privacy or whether an individual plaintiffs might have an expectation

of privacy. The wire Tap Act doesn't care. It's simply says the interception was unbowful. A TikTok spokesperson said, would you not collect keystroke or text inputs through this JavaScript code? It's only used for debugging, trouble suiting and performance monitoring. Is there a clear way for them to prove that? There will be two ways that they can pursue that defense. First of all, I'm not quite sure whether that's a

complete defense to what's being ledged. Even if what they're saying is true to the letter of their defense, I'm not sure that would be a complete defense anyway. We would have to look at the terms of service and the privacy policy and other governing documents and see whether that defense would work, whether that limited gathering or limited use of gathering would be permissible, because I don't know the details there. But there are two places where that

defense could be raised. One could be at the at the motions dismiss phase. For the non lawyers listening, the motion to dismiss phase is testing the legal sufficiency of the outations, where the court will have to assess if it's true what's being alleged. Is the allegation legally sufficient to raise this claim? It's not usually appropriate at the stage for the defended to say it, but I don't

do that. Sometimes there can be some allegations that are so atlantish or so obviously wrong they can be defended at the motion to this misspace, but usually not. Typically a defense of what I didn't do it um is done later in the case, after discovery, after defendants have an opportunity to see if they're telling the truth. So the evaluation at the first stage is what is the basis of the information? Is it just information and belief?

Is it through testing? What is the credibility at a very basic level, and then the case proceeds to discovery. Then there's a second opportunity that the defendant will have. Here, it's multiple defendants will have the opportunity after discovery to say, hey, you haven't proven your case that no reasonable jury could believe your version of the facts. That would be a motion for summary judgment after the parties have had an

opportunity to test the claims. One of the law firms involved here wants to consolidate nine of the cases and to multi district litigation. Does it seem like there is so much similarity in the allegations that they should be consolidated. Well, the judicial panel and multi district litigation will ultimately make that decision. And the focus is typically on efficiencies and discovery, and you know there's I think some people who aren't

in the industry may not understand that. Technically speaking, if a case goes to trial, the case of them become just aggregated sent back to their home district. That's a very rare situation. But the focus on the grouping of the cases together and then transferring them to a common court that is actually done for efficiency in discovery. So that's the same executive, for example, only testifies once, so the documents can be produced in an efficient manner among

the cases. In fact, even if the jp m L the Judicial Panel on Multi district Litigation, even if they were to decide the cases are related enough to consider them together and transfers them all to a single court, that does not necessarily mean they have to be consolidated into a single case. There are many cases where they're simply related and that they are coordinated, and that's a decision that the transferre court will have to make whether

they should be consolidated or simply coordinated. And TikTok is arguing that the lawsuit should be included in an already settled multidistrict litigation action in Illinois. I mean, is that a wild kind of argument. It's unusual. Certainly, it's not a normal thing for a settlement agreement to settle claims for past behavior and future behavior, so to the extent that any of these cases overlap with the settled case.

For actions that were done prior to the day of the settlement, or prior to the data of the pulmonary approval, even prior to the data the final approval, then the question will be whether the settlement substantively covers the actions that are challenged in these cases. But to the extent that the offending activity or alleged to the offending activity occurred after one of those dates, that's a little more unusual.

The idea that a settlement can say we put a force field around the defendant for even future behavior is very, very unusual and is not likely to be looked at kindly by too many courts. Are the Planti's going to have troubles here once they do? You mentioned the discovery phase. Once they do reach the discovery phase, are they going to have trouble getting discovery from TikTok, which is based

in China. Whenever there's a case where evidence is located outside of the borders of the United States, naturally there are challenges, and the challenges are are multifacets. First of all, would be documents. That's the easiest question, because documents can easily be transferred. Then you have the question of what if what about depositions. Some countries are less amenable two depositions of individuals, because that's that's more of an American thing.

Many countries allowed depositions, but not the same extent that that the United States does. To get that type of evidence located abroad, there are conventions that can be used. The Hay Convention is the most common to get access to that evidence. But we're talking about China, it's a different issue. The complication that one always faces whenever evidence is located outside the United States is even more complex

when you're talking about China specifically. And one thing that we also have to remember is that these documents may or may not be evidence, may or may not be taken at deposition in the language other than English. I'm not familiar with the language of business. That TikTok it. That's always an issue whenever you have international litigation. You have these you know, nearly a dozen proposed class actions.

Are you expecting to see more similar class actions or arrest it until some of these cases get a little farther along, I don't know whether others will be filed. Typically at this phase, given that we're now a couple of months into the process, you would expect to see the pace fall off, and we have seen the pace fall off. That does not preclude other people from filing UM, but at this phase UM, if new claims are brought. Typically you would see them include additional allegations or additional

claims that weren't brought before. There may be some firms doing additional investigations, and those would likely be the basis for new claims being filed. But just because the the panel is now looking at the motion for centralization does not preclude new cases from being brought. You might see more. You know, we've heard a lot from regulators, government officials concern about TikTok and China's access to the US user data.

Do you expect to see more state enforcement against the app? Well, certainly the fact that this is TikTok, leave aside the technology that's allegedly being used, the session replay technology, leaving that aside, leaving aside the wiretap claims. In particular, we're talking about a defendant that is right now very much in the site of Congress, state legislatures, regulators at the

federal level and state level. It's a fairly well known defendant this year, um and given also what's happened recently and it's still going on with spy balloons and other unidentified objects, and there's a bit of heightened tension, specifically with Chinese spying or legisfying. There's no way to separate out the Chinese space of TikTok from these stories. It's impossible, So that will absolutely be a factor how it plays out. I have no way of knowing, but the analysis of

these cases cannot be divorced from the current geopolitical situation. Now, will states also get involved? I think it would be impossible that every state would stay out, whether it be through legislative action or regulatory action. I just can't imagine that for the next year no state gets involved in trying to regulate TikTok. Oh. I think you're right. You know, those state attorney generals love to get involved, and this

is an important case to watch. You know that it's rare for a series of class actions like this to be touching on so many issues, keep a lot of people interesstood, even people who are traditionally not involved in the class action space or not typically involved in data privacy space, just because of the national security issues. And also let's not forget something like half of all TikTok users are under eighteen. That absolutely is going to be

a elevant issue here. There's so many issues that played I think this will remain in in the president and the headlines for the duration of the case. Thanks David. That's David Straight, a partner to Cello Levitt. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our

Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg