Plaintiffs Add Claims in TikTok Amended Complaint After Mediation Stalls

After they were unable to resolve their CapCut videoediting app privacy claims against TikTok and ByteDance in mediation (see 2401120043), the plaintiffs topped off their amended complaint with five additional causes of action, said their complaint Thursday (docket 1:23-cv-04953) in U.S. District Court for Northern Illinois in Chicago.

Among the five added claims by plaintiffs Evelia Rodriguez, Erikka Wilson and Wilson’s 14-year-old daughter, A.N., are violation of the Video Privacy Protection Act (VPPA), the Electronic Communications Privacy Act (ECPA) and Stored Communications Act (SCA), plus statutory larceny and conversion for the California subclass.

Plaintiffs allege ByteDance's CapCut videoediting app, launched over three years ago in the U.S., with over 250 million monthly active users, facilitates the unlawful collection “of a wide range of private information from users, including their biometric information.” ByteDance and TikTok “unjustly profit” from the secret harvesting of private and personally identifiable CapCut user data “while plaintiffs suffer harm,” said the complaint.

The VPPA states that a videotape service provider that knowingly discloses personally identifiable information (PII) concerning any consumer “shall be liable to the aggrieved person” for relief, said the amended complaint. TikTok violated the statute by “knowingly disclosing” PII to third parties without informed, written consent, it said. Defendants are “engaged in the business of delivering video content and services” to plaintiffs and the class, it said.

The ECPA prohibits interception of any wire, oral or electronic communications without consent of at least one party to the communication, said the amended complaint. The CapCut platform “is a ‘device or apparatus’ that is used to intercept a wire, oral, or electronic communication because it is an electronic means of acquiring the contents of users’ wire, electronic or oral communications,” it said.

The SCA allows a private right of action vs. anyone who “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system,” noted the complaint.

CapCut users transmit a variety of electronic communications using the CapCut app, including emails, links and draft videos that comprise “electronic communications” under the SCA, it said. Defendants store electronic communications in temporary and backup storage, falling within the provisions of the SCA, it said. CapCut allows users to create spaces and invite others to the spaces to participate in electronic communications in exchanges that are “private and are inaccessible to the general public,” it said. Plaintiff “did not authorize Defendants to share their content and information with certain third parties, including the Chinese Communist Party,” it said.

On statutory larceny under California law, the amended complaint said plaintiffs have a property interest in their personal information and private data. TikTok profits as a result of “these repeated and systemic violations,” it said. On conversion, defendants “unlawfully intercepted, collected, used, and exercised dominion and control” over plaintiffs’ private data, it said.

Remaining claims are violations of the Computer Fraud and Abuse Act, the California Unfair Competition Law, California Comprehensive Data Access and Fraud Act, the right of privacy, intrusion upon seclusion, the California unfair competition and false advertising laws, unjust enrichment and for the Illinois subclass, violation of the Biometric Information Privacy Act.

CapCut, separate from TikTok but also developed by TikTok parent ByteDance, can be used by individuals who never download or use TikTok, said the complaint. The app has a feature that allows users to post videos directly to TikTok, and CapCut videos can also be posted to other social media apps, including YouTube, Instagram and Facebook, said the complaint.

Videos created using CapCut often include close-up views of faces and private acts that, unless publicly shared through affirmative consent of a CapCut user, are “unintended for public consumption,” and “inherently private, personal and sensitive,” said the complaint. “Unbeknownst to users,” the CapCut app “gains access to these private videos” and performs “pre-uploading” of videos, “which sends the content to the platform even before the user clicks on ‘upload’ or ‘post,’” it said. CapCut collects a “broad array of private and personally identifiable data and content from which Defendants unjustly profit,” it said.