TikTok faces 'significant consequences' for failure to cooperate with US states, Tennessee attorney general says

19 September 2023
By Mike Swift

TikTok appears to face significant regulator risk after a group of states told a court the company may have intentionally or willfully destroyed evidence sought by a wide coalition of US states. More than 45 states led by Tennessee’s attorney general say TikTok has failed to cooperate with their probe into how the social media platform tunes user data and algorithms to maximize the time teens and children spend on the platform.

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More than 45 US states led by Tennessee’s attorney general say TikTok has failed to cooperate and may have destroyed evidence in their probe into how the social media platform tunes user data and algorithms to maximize the time teens and children spend on the platform.

In an interview with MLex today, Tennessee Attorney General Jonathan Skrmetti said there could be “significant consequences” if TikTok continues to fail to cooperate with a bipartisan probe where virtually every US state attorney general is either participating in or supporting the regulatory inquiry.

“There's a lot of evidence out there that there's a profound harm on kids as a result of the design of these social media platforms,” Skrmetti said. “And the fact that you have TikTok either not taking this investigation seriously, or otherwise stonewalling it, is not being well received by the attorney general community. But ultimately, it's up to the court to determine what the appropriate consequences are.”

In court filings in recent days, the states asked a Tennessee state court judge in Nashville — for the second time — to compel TikTok to answer the states’ detailed questions, after the states said a corporate witness TikTok designated for a sworn deposition in June couldn’t answer questions about the company’s handling of evidence. That has led the states to conclude TikTok may have destroyed evidence to keep it out of the hands of regulators.

The TikTok senior executive the company designated to respond to the states’ questions, Warren Solow, “was not knowledgeable about or prepared to testify on a number of issues covered by the topics set forth” in the evidence discovery order the states and TikTok agreed to earlier this year, the states said in a filing in a Tennessee state court in Nashville.

TikTok and the states reached that agreement in April after the states initially sought a motion to compel TikTok to answer the states’ questions about how, for example, TikTok determines a user is a teenager or a child, how it uses A/B testing to maximize the amount of engagement it users make with a piece of content, and how it uses hashtags to generate user interest. The states also asked Solow about TikTok's preservation of evidence.

Solow “could not answer basic questions about TikTok's document preservation measures in response” to a detailed Request for Information from the states, leading the states to conclude that TikTok willfully or negligently destroyed or withheld evidence the attorneys general are seeking.

“In sum, Mr. Solow's testimony, while limited in many significant respects, nevertheless shows that TikTok destroyed, or at the very least failed to preserve, secure chat messages, container files, and recalled messages,” the states told Judge Patricia Head Moskal. “This evidence, in conjunction with the evidence presented in the Motion to Compel, is sufficient to establish a preliminary showing of spoliation.”

TikTok now faces the risk of an instruction from the court that would put the company at a significant deficit should the case ever go to trial, Skrmetti told MLex today.

“The jury instruction, I think, is the most severe potential outcome, because if the court finds that evidence has been destroyed, then they can potentially order a jury to make all inferences in support of the government's position, where the absence of the evidence is the investigated party's fault,” the attorney general said. “So, the spoliation instruction is, I think, from the company's perspective, is the worst-case scenario.”

The states are particularly concerned about a TikTok internal messaging system called Lark, which they believe would have allowed TikTok employees to delete and permanently destroy internal messages about evidence the states are seeking, even after the states delivered an investigative subpoena to the company last year.

In his June 1 deposition, Solow confirmed that the Lark system allowed TikTok employees to “delete potentially relevant information after the State issued” its RFI to the company.

“While he lacked knowledge of many important details regarding the issue, Mr. Solow confirmed that last December, nearly a year after receiving the RFI, TikTok deleted the secure chat container files for deleted chat threads as part of its process of 'deprecating inactive secure chats'," metadata the states said could have been used to determine how many secure chats were sent and deleted and the scope of lost material after the states sent their RFI to TikTok.

As a result, the states are now seeking a second motion to compel TikTok to answer their questions.

“Usually, we don't have to go back with a second motion to compel; that’s pretty unusual,” Skrmetti said today. “You know, it's also unusual that 46 other states jump in, in what should be a fairly routine discovery process in our state court. So, I think there are some indicators out there that this is an unusual situation.”

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