TikTok seeks to block part of Stein’s records request

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  • TikTok is asking the state Court of Appeals to block a lower court order tied to an investigation from North Carolina Attorney General Josh Stein.
  • The social media company argues that Stein is violating the Fourth Amendment by seeking access to every Zoom videoconference involving a TikTok employee.
  • The Appeals Court granted a temporary stay Thursday by a 2-1 vote. Without action from appellate judges, TikTok faced a Friday deadline to comply with Stein's demands.

The North Carolina Court of Appeals has granted TikTok a temporary stay in its dispute with state Attorney General Josh Stein over one piece of Stein’s investigation into the social media company.

By a 2-1 vote, an appellate panel agreed Thursday to block a lower court ruling last week that favored Stein. Appeals Court rules will keep the names of the participating judges secret for 90 days.

TikTok filed a motion Wednesday seeking both a stay and an order called a writ of supersedeas. The writ would block a Dec. 15 trial court order from taking effect.

At issue is Stein’s attempt to secure access to Zoom videoconferences involving TikTok employees. Wake County Superior Court Judge Jonathan Perry issued last week’s order calling on TikTok Inc. to comply with Stein’s demand. The compliance deadline had been set for Friday.

“The Attorney General has broad authority under North Carolina law to conduct consumer protection investigations by issuing Civil Investigative Demands to companies for their records. But that authority is not unlimited,” TikTok’s lawyers argued in a court filing. “’[A] governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry’ as to violate the Fourth Amendment.”

“This appeal involves a CID that oversteps this constitutional boundary,” TikTok argued. “In this case, the Attorney General has been working with other state attorneys general to investigate whether TTI purportedly ‘puts young people at risk’ and thereby violates North Carolina’s consumer protection statute. As part of this multistate investigation, TTI has produced more than 80,000 documents, answered dozens of written interrogatories, and made witnesses available for depositions and interviews.”

“TTI is cooperating with the Attorney General’s investigation. But with respect to the CID in question, the investigation has gone too far: the Attorney General has issued a CID seeking detailed information for every Zoom videoconference meeting that any employee of TTI or its global affiliates may have elected to record and store on Zoom’s cloud, regardless of where those employees work, what they do, or what the meeting was about,” according to the motion.

“TTI estimates there are more than 98,000 such recordings — the vast majority of which have no conceivable relevance to the Attorney General’s investigation,” TikTok lawyers argued. “The stated purpose of the Zoom CID is to enable the Attorney General to pick through the records to identify recordings for follow-up requests. But the Fourth Amendment does not permit this type of exploratory rummaging — just as it would not permit a CID for information about every TTI corporate email or calendar entry.”

In addition to a “clear Fourth Amendment flaw,” “TTI also would suffer irreparable harm during the pendency of the appeal in the absence of a stay, both because TTI’s constitutional rights would be violated (which is per se irreparable) and because the disclosure of TTI’s confidential information to the Attorney General (and other attorneys general with whom the material is shared) could not be remedied — even an order requiring the return or destruction of the materials could not undo the Attorney General’s intervening review of the materials.”

TikTok argued that Stein faces no urgency to acquire the requested Zoom videos. The company has “agreed to a tolling agreement.” Such agreements ensure that a lawsuit survives limits set by the statute of limitations.

“To be clear, TTI does not object to producing Zoom recordings that are relevant to the Attorney General’s investigation — it has already produced responsive recordings and will continue to do so,” according to the motion. “TTI has proposed several ways to identify other potentially relevant videos, which the Attorney General rejected.”

“If the Attorney General is permitted to cast a net for every Zoom meeting recorded by any employee of TTI or one of its global affiliates — irrespective of its subject or participants — then the Attorney General could automatically obtain information about every corporate meeting in any authorized investigation, effectively abrogating the Morton Salt ‘relatedness’ requirement in North Carolina,” TikTok argued. “The Court should stay the trial court’s order, preserve the status quo, and allow for an orderly consideration of the important constitutional issues raised by this appeal.”

Stein has been investigating TikTok since March 2022.

“I’m very concerned about the ways in which social media companies may be using their technology to hook our kids without regard for their emotional or mental health,” Stein said in a news release announcing the investigation. “This investigation will shed more light on TikTok’s business practices and how they may harm our children. I will do everything in my power to keep North Carolina’s children safe, whether they’re at school, on the playground, or online.”

Editor’s note: This article has been updated to include the Appeals Court’s decision to grant a temporary stay in the case.