Case 5:19-cv-07792-SVK Document 1 Filed 11/27/19 Page 1 of 46
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`Ekwan E. Rhow - State Bar No. 174604
`Thomas R. Freeman - State Bar No. 135392
`Marc E. Masters - State Bar No. 208375
`BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
`DROOKS, LINCENBERG & RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`
`Marc L. Godino – State Bar No. 182689
`Jonathan M. Rotter – State Bar No. 234137
`GLANCY PRONGAY & MURRAY LLP
`1925 Century Park East, Suite 2100
`Los Angeles, California 90067-2561
`Telephone: (310) 201-9150
`info@glancylaw.com
`
`Attorneys for Plaintiff Misty Hong
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
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`MISTY HONG, individually and on
`behalf of all others similarly situated,
`
`Plaintiff,
`
`vs.
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`BYTEDANCE, INC., a corporation,
`TIKTOK, INC., a corporation;
`BEIJING BYTEDANCE
`TECHNOLOGY CO. LTD,, a
`privately-held company; and
`MUSICAL.LY, a corporation.
`
`Defendants.
`
`
`CASE NO.
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`CLASS ACTION COMPLAINT
`FOR:
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`(1) Violation of the Computer Fraud
`and Abuse Act, 18 U.S.C. § 1030
`(2) Violation of the California
`Comprehensive Data Access and
`Fraud Act, Cal. Pen. C. § 502
`(3) Violation of the Right to Privacy -
`California Constitution
`(4) Intrusion upon Seclusion
`(5) Violation of the California Unfair
`Competition Law, Bus. & Prof. C. §§
`17200 et seq.
`(6) Violation of the California False
`Advertising Law, Bus. & Prof. C. §§
`17500 et seq.
`(7) Negligence
`(8) Restitution / Unjust Enrichment
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`DEMAND FOR JURY TRIAL
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`Case 5:19-cv-07792-SVK Document 1 Filed 11/27/19 Page 2 of 46
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`INTRODUCTION
`1.
`TikTok is one of the most popular entertainment apps for mobile
`devices in the United States. It has acquired one of the largest installed user bases in
`the country on the strength of its popular 15-second videos of fun activities like
`dancing, lip-syncing, and stunts. Unknown to its users, however, is that TikTok also
`includes Chinese surveillance software. TikTok clandestinely has vacuumed up and
`transferred to servers in China vast quantities of private and personally-identifiable
`user data that can be employed to identify, profile and track the location and
`activities of users in the United States now and in the future. TikTok also has
`surreptitiously taken user content, such as draft videos never intended for
`publication, without user knowledge or consent. In short, TikTok’s lighthearted fun
`comes at a heavy cost. Meanwhile, TikTok unjustly profits from its secret harvesting
`of private and personally-identifiable user data by, among other things, using such
`data to derive vast targeted-advertising revenues and profits. Its conduct violates
`statutory, Constitutional, and common law privacy, data, and consumer protections.
`THE PARTIES
`2.
`Plaintiff Misty Hong is, and at all relevant times was, an individual and
`resident of Palo Alto, California.
`3.
`Defendant ByteDance, Inc. is, and at all relevant times was, a Delaware
`corporation with its principal place of business in Palo Alto, California.
`4.
`Defendant TikTok, Inc. f/k/a Musical.ly, Inc. (“TikTok”) is, and at all
`relevant times was, a California corporation with its principal place of business in
`Culver City, California.1 Defendant TikTok also maintains offices in Palo Alto,
`California and Mountain View, California.2 The name change from Musical.ly, Inc.
`
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`1 https://www.cnbc.com/2019/10/14/tiktok-has-mountain-view-office-near-facebook-poaching-employees.html.
`2 https://www.washingtonpost.com/technology/2019/11/05/inside-tiktok-culture-clash-where-us-views-about-
`censorship-often-were-overridden-by-chinese-bosses/; https://www.cnbc.com/2019/10/14/tiktok-has-mountain-view-
`office-near-facebook-poaching-employees.html.
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`Case 5:19-cv-07792-SVK Document 1 Filed 11/27/19 Page 3 of 46
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`to TikTok, Inc. occurred in May 2019.
`5.
`Defendant Musical.ly is, and at all relevant times was, a Cayman Island
`corporation with its principal place of business in Shanghai, China. Defendant
`Musical.ly was the parent company of Musical.ly, Inc.
`6.
`Defendant Beijing ByteDance Technology Co. Ltd. (“Beijing
`ByteDance”) is, and at all relevant times was, a privately held company
`headquartered in Beijing, China. Defendant Beijing ByteDance acquired Defendants
`Musical.ly and Musical.ly, Inc. in December 2017 prior to Musical.ly, Inc.
`becoming TikTok, Inc. Defendant Beijing ByteDance paid between $800 million
`and $1 billion for this acquisition.3 Beijing ByteDance is the 100% owner of
`Defendant ByteDance, Inc.
`JURISDICTION AND VENUE
`7.
`This Court has subject matter jurisdiction over this action pursuant to
`28 U.S.C. § 1332(d) & 1367 because: (i) this is a class action in which the matter in
`controversy exceeds the sum of $5,000,000, exclusive of interest and costs; (ii) there
`are 100 or more class members; and (iii) some members of the class are citizens of
`states different from some Defendants, and also because two Defendants are citizens
`or subjects of a foreign state.
`8.
`This Court has personal jurisdiction over Defendants because: (i) they
`transact business in the United States, including in this District; (ii) they have
`substantial aggregate contacts with the United States, including in this District; (iii)
`they engaged and are engaging in conduct that has and had a direct, substantial,
`reasonably foreseeable, and intended effect of causing injury to persons throughout
`the United States, including in this District, and purposely availed themselves of the
`laws of the United States.
`9.
`In accordance with 28 U.S.C. § 1391, venue is proper in this District
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`3 https://www.wsj.com/articles/lip-syncing-app-musical-ly-is-acquired-for-as-much-as-1-billion-1510278123;
`https://www.nytimes.com/2019/11/01/technology/tiktok-national-security-review.html.
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`because: (i) a substantial part of the conduct giving rise to Plaintiff Misty Hong’s
`claims occurred in and/or emanated from this District; (ii) Defendants transact
`business in this District; (iii) one Defendant has its principal place of business in this
`District; (iv) two Defendants have offices in this District; and (v) Ms. Hong resides
`in this District.
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`GENERAL ALLEGATIONS
`Defendant Beijing ByteDance Becomes a Chinese Tech Giant Focused on
`Overseas Markets, Including Those in the United States.
`10. Defendant Beijing ByteDance was founded in 2012 and makes a
`variety of video and news-aggregation apps.4 It “regards its platforms as part of an
`artificial intelligence company powered by algorithms that ‘learn’ each user’s
`interests and preferences through repeat interaction.”5 Because Defendant Beijing
`ByteDance emerged only after other Chinese tech giants had taken over the Chinese
`market, Defendant Beijing ByteDance has looked to overseas markets, including
`those in the United States, for growth.6
`11. Defendant Beijing ByteDance had $7.2 billion in annual revenue for
`the year 2018. It has far surpassed this number in 2019, booking $7 billion to $8.4
`billion in revenue in a better-than-expected result for the first half of 2019.7
`Defendant Beijing ByteDance currently is worth between $75 billion and $78
`billion.8 Investors in Defendant Beijing ByteDance include Sequoia Capital China,
`
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`4 https://www.wsj.com/articles/tiktoks-videos-are-goofy-its-strategy-to-dominate-social-media-is-serious-
`11561780861.
`5 October 23, 2019 letter from Senators Charles Schumer and Tom Cotton to Acting Director of National Intelligence
`Joseph Maguire.
`6 https://www.wsj.com/articles/tiktoks-videos-are-goofy-its-strategy-to-dominate-social-media-is-serious-
`11561780861.
`7 https://www.cnbc.com/2019/09/30/tiktok-owner-bytedances-first-half-revenue-better-than-expected-at-over-7-
`billion-sources.html.
`8 https://www.washingtonpost.com/technology/2019/11/05/inside-tiktok-culture-clash-where-us-views-about-
`censorship-often-were-overridden-by-chinese-bosses/; https://www.reuters.com/article/us-tiktok-cfius-
`exclusive/exclusive-us-opens-national-security-investigation-into-tiktok-sources-idUSKBN1XB4IL.
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`Russian billionaire Yuri Milner, Japanese technology giant SoftBank, and big
`private-equity firms such as KKR, General Atlantic, and Hillhouse Capital Group.9
`12. Most of Defendant Beijing ByteDance’s revenue is generated from
`advertising.10 “ByteDance has [] been doubling down on its advertising business as
`the company’s management sets increasingly ambitious revenue goals.”11 “As with
`pretty much all major social media and content startups, ByteDance monetises
`through advertising. Specifically, it runs targeted advertising within user feeds –
`providing them promotional content in between using the app.”12
`The Musical.ly App Evolves into the TikTok App.
`13. Defendants Musical.ly and Musical.ly, Inc. launched the highly-popular
`social media and social networking app “Muscial.ly” in 2014. This app allows its
`users to (i) create video selfies of themselves dancing and/or lip-syncing with a
`musical soundtrack in the background, and (ii) share such videos with friends.13
`There are simple tools provided by the app that users can utilize to create and edit
`these videos, and the app provides a large online music library from which users
`may select their background music. The Musical.ly app was designed “to capture the
`YouTube phenomenon of teenagers sharing videos of themselves singing or dancing
`to popular music.”14 Beyond the creation and sharing of videos, the Musical.ly app
`provides a platform through which users can interact, including by commenting on
`other users’ videos and “following” other users’ accounts. Users also can send direct
`messages in order to communicate with other users on the app. By November 2017,
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`9 https://www.wsj.com/articles/lip-syncing-app-musical-ly-is-acquired-for-as-much-as-1-billion-1510278123;
`https://www.reuters.com/article/us-tiktok-cfius-exclusive/exclusive-us-opens-national-security-investigation-into-
`tiktok-sources-idUSKBN1XB4IL.
`10 https://www.bloomberg.com/news/articles/2019-01-15/bytedance-is-said-to-hit-lower-end-of-sales-goal-amid-
`slowdown.
`11 https://technode.com/2019/09/20/bytedance-launches-video-ad-tools-for-tiktok-douyin/.
`12 https://www.businessofapps.com/insights/bytedance-social-media-advertising-company/.
`13 https://www.wsj.com/articles/lip-syncing-app-musical-ly-is-acquired-for-as-much-as-1-billion-1510278123.
`14 https://www.wsj.com/articles/lip-syncing-app-musical-ly-is-acquired-for-as-much-as-1-billion-1510278123.
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`the Musical.ly app had 60 million monthly active users.15
`14. Meanwhile, in 2016, Defendant Beijing ByteDance launched its own
`app called “Douyin” in China, and the Douyin app mimicked the Musical.ly app.16
`By 2017, shortly before its purchase of Defendants Musical.ly and Musical.ly, Inc.,
`Defendant Beijing ByteDance introduced an English-language version of the
`Douyin app outside China under the name “TikTok.” In August 2018, after having
`acquired Defendants Musical.ly and Musical.ly, Inc., Defendant Beijing ByteDance
`combined the Musical.ly app with its TikTok app, merging all existing accounts and
`data into a single app under the retained “TikTok” name.17
`The TikTok App Becomes a Global Phenomenon with a Strong Presence in the
`United States.
`15. The TikTok app has become “one of the world’s fastest-growing social
`media platforms” and a “global phenomenon” with a massive American audience.18
`It has been downloaded more than 1.3 billion times worldwide, and more than 120
`million times in the United States.19 It is the most downloaded non-game app in the
`world.20 The TikTok app routinely outranks its top competitors – such as Facebook,
`Snapchat, and Instagram – on the Apple and Google app stores.21 In fact, it has been
`the most downloaded app on the Apple and Google app stores for months.22 As of
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`15 https://www.wsj.com/articles/lip-syncing-app-musical-ly-is-acquired-for-as-much-as-1-billion-1510278123;
`https://www.nytimes.com/2019/11/01/technology/tiktok-national-security-review.html.
`16 https://www.wsj.com/articles/tiktoks-videos-are-goofy-its-strategy-to-dominate-social-media-is-serious-
`11561780861.
`17 http://culture.affinitymagazine.us/tik-tok-is-scamming-people-stealing-information/.
`18 https://www.washingtonpost.com/technology/2019/11/05/inside-tiktok-culture-clash-where-us-views-about-
`censorship-often-were-overridden-by-chinese-bosses/.
`19 https://www.washingtonpost.com/technology/2019/11/05/inside-tiktok-culture-clash-where-us-views-about-
`censorship-often-were-overridden-by-chinese-bosses/.
`20 https://www.cnbc.com/2019/07/25/china-camera-apps-may-open-up-user-data-to-beijing-government-
`requests.html.
`21 https://www.washingtonpost.com/technology/2019/11/05/inside-tiktok-culture-clash-where-us-views-about-
`censorship-often-were-overridden-by-chinese-bosses/.
`22 https://thehill.com/policy/technology/469114-tiktok-faces-lawmaker-anger-over-china-ties.
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`August 2019, the TikTok and Douyin apps had 625 million monthly active users.23
`The average user opened the TikTok app more than 8 times per day and spent
`approximately 45 minutes on the app daily as of March 2019.24 And, as of April
`2019, Defendant TikTok had grossed $80 million from in-app purchases.25
`16. This level of success globally and in the United States is rare for a
`Chinese tech giant. Facebook CEO Mark Zuckerberg acknowledged as much,
`stating that the TikTok app “is really the first consumer internet product built by one
`of the Chinese tech giants that is doing quite well around the world. It’s starting to
`do well in the U.S., especially with young folks.”26 Indeed, Defendant TikTok
`recently took over office space in Silicon Valley once occupied by Facebook’s
`WhatsApp messaging app, and is poaching employees from rival Facebook by
`offering salaries as much as 20% higher.27 Other competitors from whom Defendant
`TikTok is hiring away employees include Snap, Hulu, Apple, YouTube and
`Amazon.28
`17. One key to Defendants’ financial success is the targeted advertising
`that they run through the Musical.ly and TikTok apps. Such targeted advertising
`relies heavily upon knowledge of each user’s preferences, and such knowledge is
`gleaned from acquiring private and personally-identifiable information about each
`user:
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`Like most other internet services, TikTok comes equipped with trackers
`that evaluate your watching habits to understand your interests and
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`23 https://thehill.com/policy/technology/469114-tiktok-faces-lawmaker-anger-over-china-ties.
`24 https://www.wsj.com/articles/tiktoks-videos-are-goofy-its-strategy-to-dominate-social-media-is-serious-
`11561780861.
`25 https://www.cnbc.com/2019/07/25/china-camera-apps-may-open-up-user-data-to-beijing-government-
`requests.html.
`26 https://www.cnbc.com/2019/10/14/tiktok-has-mountain-view-office-near-facebook-poaching-employees.html.
`27 https://www.cnbc.com/2019/10/14/tiktok-has-mountain-view-office-near-facebook-poaching-employees.html.
`28 https://www.cnbc.com/2019/10/14/tiktok-has-mountain-view-office-near-facebook-poaching-employees.html.
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`stitch a targeting profile for advertisers. … Earlier this year, the
`platform began to show in-app advertisements. Later, in June, a
`Digiday report revealed that the company is harvesting a handful of
`personal user data such as age, gender, for interest-based targeting.29
`18. These targeting profiles, or dossiers, on each user not only contain the
`information reported above. As discussed below, through a secretive and highly-
`invasive information gathering campaign, Defendants have accumulated much more
`private and personally-identifiable data that they are monetizing for the purpose of
`unjustly profiting from their unlawful activities.
`Defendants Settle an FTC Lawsuit in February 2019 Alleging They Unlawfully
`Collected and Used Children’s Private Data.
`19. On February 27, 2019, the United States, on behalf of the Federal Trade
`Commission (“FTC”), filed a lawsuit against Defendants Musical.ly and Musical.ly,
`Inc. alleging that they had violated the Children’s Online Privacy Protection Act by
`collecting and using personal information from children under age 13 without the
`required notice and consent.30
`20. On the same date, Defendants Musical.ly and Musical.ly, Inc.
`stipulated to an order mandating, among other things, a civil penalty in the amount
`of $5.7 million and injunctive relief concerning the collection and destruction of
`children’s personal information.31
`21. This is the largest civil penalty ever imposed for such a violation.32 The
`FTC also published a statement indicating that, “[i]n our view, these practices
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`29 https://www.digitaltrends.com/social-media/tiktok-advertiser-audience-network-targeted-ads/.
`30 United States of America v. Musical.ly and Musical.ly, Inc., United States District Court, Central District of
`California, Case No. 2:19-cv-1439.
`31 United States of America v. Musical.ly and Musical.ly, Inc., United States District Court, Central District of
`California, Case No. 2:19-cv-1439.
`32 https://www.wsj.com/articles/tiktoks-videos-are-goofy-its-strategy-to-dominate-social-media-is-serious-
`11561780861; https://www.techinasia.com/tiktok-owner-bytedance-gathers-1-billion-monthly-active-users-apps.
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`reflected the company’s willingness to pursue growth even at the expense of
`endangering children.”33
`The TikTok App Surreptitiously Takes Users’ Private Videos Before Users are
`Even Given the Choice Whether to Save or Post Them.
`22. Unless shared through the affirmative consent of the user, videos
`created using the TikTop app, which often include close-ups of faces and private
`acts unintended for public consumption, are inherently private, personal and
`sensitive. Close-up videos of faces – of both the TikTok users and their friends and
`family – contain personally-identifiable biometric data unique to the photographic
`subject’s face (“Biometric Identifiers”).
`23. After using the TikTok app to record a video, a screen presents TikTok
`users with certain options, including the following: (i) an “x” button; (ii) a “next”
`button; and (iii) a button for effects. The “x” button takes TikTok users to a screen
`with options, including “reshoot” and “exit.” The “next” button takes TikTok users
`to a screen with options, including “save” and “post.” The “effects” button takes
`TikTok users to a screen offering the ability to modify the video.
`24. Once TikTok users click the “next” button, but before they click either
`the “save” or “post” buttons, their videos are transferred from their devices to the
`following domain owned and controlled by Defendants: musdbn.com. The “mus”
`portion of the domain name stands for Musical.ly, and the “dbn” portion of the
`domain name stands for content distribution network. Additionally, after clicking
`the “next” button, but before clicking either the “save” or “post” buttons, the TikTok
`users’ videos are also transferred to two Musical.ly servers: (i) xlog-va.musical.ly
`and (ii) log2.musical.ly.
`25. During the secret transfer of users’ videos to the domain and servers
`mentioned above, there is no progress bar or any other indication that users’ videos
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`33 https://www.nbcnews.com/tech/tech-news/tiktok-pay-5-7-million-over-alleged-violation-child-privacy-n977186.
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`are being transferred. Nor are the taking of the videos and the Biometric Identifiers
`disclosed in any Musical.ly or TikTok privacy policies or other disclosure
`documentation. Consequently, TikTok users are prevented from knowing that
`Defendants have taken their private videos and Biometric Identifiers. No user
`consent exists.
`The Musical.ly and TikTok Apps Take a Broad Array of Other Private User
`Data, and Develop Sophisticated User Profiles or Dossiers for Tracking and
`Targeted Advertising, without Notice or Consent.
`26. Unbeknownst to those who have downloaded the seemingly innocuous
`Musical.ly and TikTok apps, these apps infiltrate users’ devices and extract a
`remarkably broad array of private and personally-identifiable information that
`Defendants use to track and profile users for the purpose of, among other things,
`targeting them with advertisements from which Defendants unjustly profit.
`27. This unlawful secret taking of private and personally-identifiable user
`data from users’ devices is contrary to American norms. For example, the United
`States Supreme Court has recognized that, in contemporary society, cell phones are
`so ubiquitous and inextricably-intertwined with the user’s personal privacy that that
`such devices have become “almost a ‘feature of human anatomy.’” Carpenter v.
`United States, 138 S.Ct. 2206, 2218 (2018) (quoting Riley v. California, 573 U.S.
`373, 385 (2014)). Consequently, the United States Constitution provides a privacy
`right that protects individuals against unreasonable governmental searches of their
`physical movements through historical cell phone records in the possession of their
`service providers. Carpenter, 138 S.Ct. at 2218.
`28. At the same time that Defendants utilized the Musical.ly and TikTok
`apps to covertly tap into a massive array of private and personally-identifiable
`information, they went to great lengths to hide their tracks. They have done so (i) by
`obfuscating the source code that would make transparent the private and personally-
`identifiable user data actually taken from users’ devices and (ii) by using non-
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`standard encryption to conceal the transfer of such private and personally-
`identifiable user data from users’ devices to Defendants and others.
`29. From each user device on which the Musical.ly and TikTok apps are
`installed, Defendants take a combination of, among other items, the following
`User/Device Identifiers:
`a.
`username, password, age/birthday, email address, and profile
`
`image;
`
`apps;
`
`b.
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`user-generated content, including messages sent through the
`
`c.
`phone and social network contacts;
`d.
`the device’s WiFi MAC address (i.e., media access control
`address), which is the unique hardware number on the WiFi card adapter that tells
`the internet who is connected to it;
`e.
`the device’s International Mobile Equipment Identity (“IMEI”)
`number, which is a unique number given to every mobile device that is used to route
`calls to one’s phone, and that reflects information about the origin, model, and serial
`number of the device;
`f.
`the user’s International Mobile Subscriber Identity (“IMSI”)
`number, which is a unique number given to every subscriber to a mobile network;
`g.
`the IP address (i.e., Internet Protocol address), which is a
`numerical label assigned to each user device connected to a computer network that
`uses the Internet Protocol for communication. IP addresses allow the location of
`literally billions of digital devices that are connected to the Internet to be pinpointed
`and differentiated from all other such devices;
`h.
`the device ID, which is a unique, identifying number or group of
`numbers assigned to the user’s individual device that is separate from the hardware
`serial number;
`i.
`
`the OS version, which is the operating system on the user’s
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`device;
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`j.
`the device brand and model/version;
`k.
`the hardware serial number, which is the unique, identifying
`number or group of numbers assigned to the user’s individual device;
`l.
`the Advertising ID, which is a unique ID for advertising that
`provides developers with a simple, standard system to monetize their apps;
`m. mobile carrier information (e.g., the name of the phone
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`company);
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`uses;
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`n.
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`network information, including the technology that the carrier
`
`o.
`browsing history;
`p.
`cookies;
`q. metadata; and
`r.
`precise physical location, including based on SIM card, cell
`towers and/or GPS.
`30. Theft of location data is highly invasive of users’ privacy rights. Two
`United States Senators recently observed that “[l]ocation data is among the most
`sensitive personal information that a user can share with a company … Today,
`modern smartphones can reveal location data beyond a mere street address. The
`technology is sophisticated enough to identify on which floor of a building the
`device is located.”34 Location data reveals private living patterns of users, including
`where they work, where they reside, where they go to school, and when they are at
`each of these locations. Location data, either standing alone or combined with other
`information, exposes deeply-private and personal information about users’ health,
`religion, politics and intimate relationships.
`31. The Musical.ly and TikTok apps also invite users to sign into the apps
`
`34 https://www.law360.com/consumerprotection/articles/1221312/sens-prod-zuckerberg-why-keep-tracking-user-
`locations-.
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`through Facebook, Google, and Twitter. What users do not know is that this “single
`sign-on” option gives Defendants access to users’ private and personally-identifiable
`data stored on these other social media accounts, including User/Device Identifiers
`such as the user’s photos and friends/contacts information.
`32. The Musical.ly and TikTok apps begin taking certain User/Device
`Identifiers and Biometric Identifiers immediately upon the completion of the
`download process and before users even have the opportunity to sign-up and create
`an account.
`The Privacy Policies and Terms of Use do not Constitute Notice of or Consent
`to (1) the Taking of User/Device Identifiers and Biometric Identifiers or to (2)
`an Arbitration Agreement and a Class Action Waiver.
`33. Defendants have adopted various “privacy policies” and “terms of use”
`for the Musical.ly and TikTok apps over the years. Certain privacy policies,
`revealed by investigation of counsel but not seen by users, purport to disclose that
`the apps take certain (but not all) the User/Device Identifiers listed above. Certain
`terms of use, revealed by investigation of counsel but not seen by users, purport to
`require arbitration and class action waivers.
`34. Because the Musical.ly and TikTok apps begin taking certain
`User/Device Identifiers and Biometric Identifiers immediately upon the completion
`of the download process, and before users are even presented with the option of
`signing-up for and creating an account, users have no notice of, and cannot consent
`to, the privacy policies and terms of use prior to such taking.
`35. Moreover, even at the point at which users have the option to sign-up
`and create an account, Defendants do not provide users actual notice of such privacy
`policies and terms of use. Nor do Defendants present users with conspicuously-
`located and conspicuously-designed hyperlinks to the privacy policies and the terms
`of use. The Musical.ly and TikTok apps thus allow users to utilize the apps without
`ever placing users on actual or constructive notice of the privacy policies and terms
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`of use. Such lack of actual or constructive notice ensures the absence of user consent
`to such documents, meaning that these privacy policies and terms of use are not
`binding upon users.
`36. Additionally, the first paragraph of the February 2019 Privacy Policy
`and the first paragraph of the February 2019 Terms of Use are ambiguous as to
`whether they apply to users in the United States. Nowhere do these paragraphs
`affirmatively state that these documents apply to users in the United States. Rather,
`these paragraphs list a number of other countries and direct the readers in those
`countries to other privacy policies. This essential ambiguity renders meaningless the
`purported disclosures and requirements in the remainder of these documents.
`37. Finally, users of the Musical.ly and TikTok apps are legally incapable
`of waiving the right to pursue claims for public injunctive relief, including those at
`issue here, through arbitration agreements and class action waivers.
`The Musical.ly and TikTok Apps Clandestinely Take Private User Data When
`the Apps are Closed.
`38. Even when Musical.ly and TikTok users stop using the apps and close
`them, Defendants continue to use the apps to harvest certain Biometric Identifiers
`and User/Device Identifiers from users’ devices. There are no disclosures in any
`Musical.ly or TikTok privacy policy or otherwise that such surreptitious taking of
`private and personally-identifiable user data occurs when the apps are closed.
`Consequently, Musical.ly and TikTok users are unaware that Defendants have taken
`certain Biometric Identifiers and User/Device Identifiers when the apps are closed.
`Defendants Unjustly Profit from their Unlawful Activities While Plaintiff and
`the Class and Subclass Members Suffer Concrete Harm.
`39. Defendants use the stolen videos, Biometric Identifiers and
`User/Device Identifiers to create a dossier of private and personally-identifiable
`information for each Musical.ly and TikTok user. These are living files that are
`supplemented over time with additional private and personally-identifiable user
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`data, and utilized now and in the future for various economic and financial purposes.
`40. For example, Defendants’ control over these ever-expanding dossiers
`make tracking and profiling users, and targeting them with advertising, much more
`efficient and effective. Defendants unjustly earn substantial profits from such
`targeted advertising.
`41. Additionally, Defendants use the stolen videos and Biometric
`Identifiers within these unlawful dossiers to develop and patent new and
`commercially-valuable technologies.
`42. Meanwhile, Plaintiff Misty Hong and members of the class and
`subclass incurred harm as a result the invasion of their privacy through Defendants’
`theft of the videos, Biometric Identi