Nebraska and TikTok clash over internet law, jurisdiction in case over ‘harmful’ app content

LINCOLN, Neb. (CN) — TikTok fought on Wednesday to dismiss Nebraska's claims the social media behemoth harms children, arguing that it isn't liable to the state over statements it made to its young users.

“What the state does is point to examples of inappropriate content on the platform, third party content on the platform, that it says disprove the statements,” said Blaine Evanson of California's Gibson Dunn, arguing for TikTok. "What is mild to a suburban parent of toddlers is a very different thing than what is mild to a college student.”

TikTok claims the statements about content moderation and the suitability of the app for teens and families were not directed specifically at Nebraskans, therefore the state lacks personal jurisdiction, which requires that an entity do business or have contacts in an area covered by the court.

TikTok told Lancaster County District Court Judge Lori A. Maret in Lincoln that it had never guaranteed that it could keep inappropriate content off the platform and that statements about the app's safety were not aimed directly at Nebraskans but at a nationwide audience.

“The state is challenging statements that TikTok made primarily on static webpages that do not mention Nebraska, that were not made from Nebraska and were not directed at or expressly aimed at Nebraska. And the only connection that the state identifies between those statements and the state is that, allegedly, individuals in the state viewed those statements,” Evanson said.

The attorney added that such regulation of its content was a violation of Section 230 of U.S. Code, which says internet service providers are not responsible for what their users post online as long as they took reasonable steps to police themselves of objectionable material.

What the state is actually saying is that it finds TikTok ineffective at content moderation, Evanson said.

“They’ve walked right into a section 230 problem, because if there is anything that Section 230 was designed to prevent, it is challenges to platform’s moderation of content,” Evanson said.

TikTok also argues that these statements it made that the app was "family friendly," "safe" and "appropriate for kids and teens" were opinions, not quantifiable facts.

On behalf of the state, attorney John Hughes of the Denver office of Bartlit Beck said that TikTok had indeed directed content at Nebraskans.

“TikTok is expressly, directly, engaging with all of the users in Nebraska, not just by the use of the platform, but because every single user that signs up for TikTok in Nebraska enters into a bilateral contract with TikTok,” Hughes said.

Hughes — joined by Alex Harris also of Bartlit Beck and Nebraska Attorney General Mike Hilgers — also reiterated the state’s contention that TikTok’s statements to its users that it was safe and that it would remove harmful content are false.

Case law from other states backed up that the established contact TikTok had with Nebraskans was enough for personal jurisdiction to apply, he said, noting that these arguments from TikTok have been rejected elsewhere in the bevy of other litigation launched against the app.

Nationwide, most users of TikTok are under 18 and a third of them are 14 or younger, Hughes said. And there was no reason to believe that the numbers weren’t similar in the Cornhusker State.

“TikTok use by youth is so pervasive, there are numerous Nebraska youth that are on TikTok at three in the morning in the middle of the night, for extended periods of time,” he said.

And the social media giant has reached out to parent-teacher associations in Nebraska, he said.

“TikTok makes representations to PTAs about the safety of its platform for children and teens. It has actually sponsored PTA proceedings in Nebraska,” he said.

Section 230 did not apply in this case because the case “is about TikTok’s own misrepresentations,” Harris said.

Yet, this did not keep him from attacking the platform’s content moderation, describing it as a “sieve” and TikTok’s safety tools, “intentionally ineffective … Actually designed, as the allegations make clear, to maximize retention and daily active use rather than actually promote the well-being of its users.”

Maret said she would consider the arguments but did not indicate when she would issue a ruling.

Nebraska first sued the social media giant in May, claiming the social media giant exposes the state's youth to addictive, suicide-related, harmful content that contributes to a mental health crisis, despite its characterization of itself as safe and appropriate.

But it isn't the only state challenging TikTok. Earlier in October, 14 other states including New York and California, along with Washington, D.C. also sued the social media giant, claiming harm against minors.

The state suits are only part of the onslaught of opposition TikTok is facing in the U.S.

Its relationship to its parent company, the China-based ByteDance — which critics say raises cybersecurity concerns — prompted President Joe Biden to sign off on a bipartisan bill requiring the platform to divest from ByteDance. TikTok sued to block the bill, but faces an outright ban of the app if ByteDance does not divest of it by January.

If you are having thoughts of suicide, call or text 988, or call the National Suicide Prevention Lifeline at 1-800-273-8255 (TALK). Visit SpeakingOfSuicide.com/resources for a list of additional resources.

Follow @nelson_aj