The Government Has Banned TikTok
The U.S. Government has banned from Government IT systems and Government devices, the TikTok app, or any application created or sold by ByteDance, the company that owns TikTok.
The ban applies Government contractors and subcontractors to some degree as well.
The ban was issued because of U.S. Government concerns that TikTok may be used by the Chinese government:
- For surveillance;
- To collect and store personal data without user consent; and
- To spread misinformation or propaganda.
The Ban Requirements
The interim FAR banning TikTok and all other ByteDanc applications applies to ALL Government contracts and subcontracts. However, when it comes to the law, the devil is in the detail and here the details from the Government are not very clear.
For starters, the new interim FAR implements the new law and Government memos that prohibit downloading, accessing or using any ByteDance applications, such as TikTok on:
- Government IT systems and devices
- Contractor and subcontract IT systems and devices if used to any extent to perform a government contract
- Employee-owned devices that are used for government work or if used to any extent to perform a government contract.
Drilling down the new FAR says that:
The Contractor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees. FAR 52.204-27
Government guidance further explains that TikTok cannot be on contractor/subcontractor owned or operated IT and no internet traffic may interface with TikTok on any contractor/subcontractor owned or operated IT.
Going one more step in the analysis, the FAR relies on legal definition of IT. The legal definition of IT for purposes of the FAR banning TikTok is any network, device or any equipment required to be used to be used under a contract or used “to a significant extent in the performance or the furnishing of a product.”
So it seems the FAR is prohibiting TikTok to be on contractor/subcontract It systems and contractor/subcontractor devices, to include employee owned devices if used to perform a Government contract. It also seems to mean the app should not be used to access or share government information, to conduct government business, or to communicate with other federal employees or contractors.
The Government is serious about this to the point that in its memo, the Office of Management and Budget warned that federal employees who violate these requirements could face disciplinary action, including termination.
What Is Not Required or Covered
Unlike other bans, such as the Chinese telecommunication ban, contractors are not required to:
- Audit their supply chain for use of ByteDance applications
- Report use of ByteDance applications.
Any IT systems or devices that a contractor acquires or uses that is “incidental” to Government work is NOT covered by the ban. The legal requirements however are not clear on what “incidental” to performance of a contract means. For example, if a contractor and its employees use a device with TikTok to send emails about Government work, it is not clear under the regulatory language if this communication is “incidental” to performance.
Even so, keep in mind that the prohibition applies to any IT/devices –whether owned by the Government, contractors, subcontractors or by employees of contractors and subcontractors if the IT/device is used to execute a Government contract. In other words, a cell phone that it NOT used to perform a Government contract is not subject to the prohibition. If a cell phone is used to execute performance on a Government contract, then TikTok may not be on the device, even if it is the employee’s device.
When Does the Ban Go Into Effect?
The ban is effective immediately. So contractors should start getting modifications from the Government or from their prime contractors with the new interim FAR banning Tiktok. The new FAR will also been in all solicitations, contracts, and modifications going forward.
What Are Contractors and Subcontractors To Do:
- Move quickly – the Government is expecting quick action by contractors on the ban
- Do not access or use TikTok on Government-owned device
- Do not access or use TikTok on any Government IT systems
- Do not use a Government email to access TikTok
- Do not use TikTok for any Government purpose
- Prime contractors should modify their subcontracts to include the FAR TikTok ban
- Decide how to implement the ban:
1. Identify all devices and IT systems, including employee devices, used to perform you Government contracts or used to a significant extent to perform Government contracts.
2. Based on this review decide:
• Is it time to provide your employees with devices that can only be used for work?
OR
• Given your company’s operations, can you comply with the ban through policies prohibiting ByteDance applications on devices and IT systems used to perform Government contracts without providing employees’ their own devices?
- The Government expects that you are and will continue to “block access to unwanted or nefarious websites, prevent the download of prohibited applications (apps) to devices” and remove prohibited apps on impacted IT systems and impacted devices, which may include your employee’s personal devices if those devices are used for government work
- Update your technology policies to include the TikTok ban
- Send communications to your employees about the ban
- Train employees so it is clear that TikTok is prohibited for use on all devices, to include an employee’s personal device, if the device is used to perform a Government contract
- Although the ban does not apply to private use of TikTok, unrelated to Government contracting, you should still consider if your company’s social media policy is clear on what information about your business and your work with the Government cannot be shared and clear on the risks of using TikTok.
- If you are up in arms over this for whatever reason, because you think it is too much for your business to manage or because you think it does not go far enough to protect national security, since this is an interim rule, you can file comments for the FAR Council to consider before it implements the final rule.
- Email your comments to GSARegSec@gsa.gov and cite to FAC 2023–04, FAR Case 2023–010.
- Do so by August 1, 2023
Legal References
If you want to read all about it, here are the directive and implementing legal materials:
- Consolidated Appropriations Act, 2023 (Pub. L. No. 117-328)
- Government Devices Act
- Office of Management and Budget Memorandum M–23–13
- Federal Register, 88 FR 36430 (June 2, 2023)
- FAR 52.204-27, Prohibition on a ByteDance Covered Application
