TikTok Toe: Tackling Ediscovery for the New Kid on the Social Media Block

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What do lip-synching duets and a legion of stop-motion gummi bears fan-girling about Adele have to do with litigation and investigation? At first glance, not much. However, these worlds collide in TikTok, the latest social media platform that has acquired over 850M monthly active users since its inception in 2016 and has top hashtags with view counts in the trillions

The platform has faced public scrutiny in the U.S. over the last year as a result of some questionable data harvesting measures and entanglement with the Chinese government. As an ediscovery practitioner, what is more intriguing to me is the potential the platform has as a source of electronically stored information (ESI) and digital evidence in the future. From the potential for exploiting deceptive marketing to substantive concerns about user privacy and corporate security to simply serving as an additional means of short-form communication, the cheeky platform may find relevance in litigation sooner than later.

Via BBC

What the heck is TikTok (and why should I care)? 

The latest addition to the global social media ecosystem, TikTok is a short-format video sharing application. The videos themselves are under 15 seconds in length, and often incorporate pop music, filters, and lip-synching. It is a strange cacophony of content (like eating your fingers to Kidz Bop songs strange) that has recently exploded in the United States. 

The app originated in China in 2016 as Douyin. It arrived in the U.S. in 2017 with the name TikTok, but remained under the radar until 2018, when it acquired and consolidated with Musical.ly, a similar Chinese app with a larger U.S. user base. This love child of Douyin and Musical.ly now boasts north of 90M U.S. users. Primarily composed of teens and young adults, TikTok saw a 5.5x increase in adult users between 2017 and 2019, and the trend is on the upswing. With more than 2 billion downloads and users in 155 countries, this video sharing application has gained global dominance in a short period of time. 

To date, most litigation and scrutiny around TikTok has been about the platform itself (as I will soon cover) and not user-generated content, but that is likely to change. For legal practitioners, causes of actions involving TikTok could range from social media marketing liability to large-scale copyright infringement concerns as the platform becomes increasingly commercial (following in the footsteps of Facebook, Instagram, and YouTube). As users and corporate entities alike begin to monetize the platform and convert it into an advertising engine, concerns about individual likeness, song sampling, and unfair advertising practices could all birth regulatory scrutiny or large-scale litigation. 

via guim.co.uk

What risks does TikTok pose?

This increasingly dominant social media platform has already run afoul of U.S. courts, the Department of Defense, and even President Trump as a result of some questionable approaches to data harvesting and sharing. President Trump even issued a highly contested and currently blocked executive order banning the platform from processing transactions for U.S. citizens and from being downloaded in U.S. app stores due to security concerns. A subsequent order also threatened a complete ban of the platform unless its U.S. interests were sold to a U.S. company by November 14. The main concerns related to the type of metadata being harvested and shared with the Chinese government as well as censorship at the behest of China.

To date, the U.S. lawsuits have been quickly settled and U.S. district judge Carl Nichols granted a preliminary injunction against the aspect of the executive order relating to the removal of the platform from the U.S.-based app stores. To address the second order, TikTok penned an agreement with Oracle and Walmart to create a new entity, TikTok Global, with the U.S. entities jointly owning a 20% stake. Questions remain around data security, national security, and international considerations for the platform despite this step. 

Can I use TikToks as evidence? 

Despite these legal actions, the user-created ESI of TikTok has not yet had its day in court. But I would not write it off as a potential source of evidence in litigation or investigations. In particular, the social media platform launched TikTok for Business in June of this year, specifically to facilitate the use of the platform for advertising purposes. U.S. revenue is already tracking to hit half a billion, and this new offering should accelerate the advertising revenue substantially. 

With this doubled-down focus on advertising, the platform has increased potential exposure relating to social media marketing liability, which a number of regulators and laws specifically govern. Social media is a hot button for regulators like the Securities & Exchange Commission (SEC), the National Labor Relations Act, the Federal Trade Commission (FTC), and the Food and Drug Administration (FDA). Data privacy regulations like GDPR, CCPA, and HIPAA all have implications for social media marketing. 

As with other legacy social media, TikTok potentially offers a wealth of general information about litigants. This evidence could come in the form of a plaintiff in a class action claiming grievous injury posting a TikTok video dancing their heart out for the ”Blinding Lights” dance challenge, or for a copyright claim when a particularly epic TikTok is repurposed for advertising without the consent of the user who made it. 

How TikToks render in DISCO Ediscovery

What challenges does TikTok data pose for ediscovery? 

As the social media behemoth continues to grow and mature into a larger component of the digital ecosystem that we live, work, and play in, the risk of legal liability likewise expands. TikTok’s day in court as digital evidence is a question of when not if. As with other visual communication methods, there are a few unique considerations in collecting and integrating TikTok ESI into an ediscovery workflow. 

TikTok, like many next-gen social media platforms and communication applications, is not a doc in any traditional sense. So the workflow and methods used to gain insights must be refined to reflect this structure difference. A few of the ways TikTok differs from a document in the traditional sense include: video and audio content, dynamic user interaction data including likes and comments, and metadata about the user and the posting. 

DISCO, TikTok, and you

With TikTok, the potential for ediscovery and data privacy blowback is substantive and legal practitioners should plan to incorporate solutions for this data source into their ediscovery workflow. It’s paramount to ensure that their legal technology is up to the challenge of rendering the social media content in a manner that is intuitive and easy to review should an ediscovery need arise. 

To address the unique challenges of TikTok — in particular, the intersection of audio, video, and metadata — DISCO can process and provide the native file directly into your database for review. Key metadata fields including file name, path, date created, date modified, and user upload are all captured as well to facilitate search. This allows you to review and produce TikTok content directly within your DISCO Ediscovery review database without needing to use a separate workflow or application.

Via Tenor

I may not get TikTok, but DISCO does

While I may still be a bit perplexed about all the hype around this strange social media powerhouse, DISCO has it all figured out from a review and metadata extraction standpoint. From filters to emojis, dance-offs to lip sync battles with Justin Bieber, this approach captures the original nuance of the data as it was in the TikTok platform. The right, new media-optimized technology solution for ediscovery is increasingly important as you build out an ediscovery technology stack for the future. Thankfully, DISCO has you covered!

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