The federal government's most recent TikTok ban is both simple and complex. The prohibition bans federal contractors from using or even installing the TikTok app on covered information technology (IT) devices. While this aspect of the ban is clear, there are complicated questions about covered devices, covered contracts, implementation timelines, and contractor responsibilities. Now, the federal government has issued a new Federal Acquisition Regulation (FAR) clause that, effective immediately, implements this ban and explains the scope and universe of this new rule. This alert will briefly analyze how the TikTok ban will impact contractors and what they can do to prepare for compliance.
What Does the TikTok Ban Cover?
Congress passed the No TikTok on Government Devices Act as part of the Consolidated Appropriations Act of 2023. The Act requires the Office of Management and Budget (OMB) to issue standards and guidelines for executive agencies to remove TikTok from "information technology," i.e., any IT "equipment or interconnected system or subsystem of equipment" used by an executive agency or a federal contractor under a government contract with an executive agency. See Pub. L. No. 117-328, div. R, § 101(a)(3) (citing 40 U.S.C. § 11101). The new FAR interim rule explains that the "prohibition applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor's employees (e.g., employee-owned devices that are used as part of an employer bring your own device (BYOD) program)." And the interim rule, in concert with prior OMB guidance, clarifies that the TikTok ban applies to all contracts and solicitations (after a certain date, see below).
When Does the TikTok Ban Take Effect?
The new FAR rule is effective immediately, according to rule-makers, because of "urgent and compelling reasons" and in order to permit agencies to meet OMB's final deadline for agencies to comply internally with the No TikTok on Government Devices Act. All new solicitations must include the new FAR rules, and existing solicitations will be modified by July 3, 2023. Existing indefinite-delivery contracts will be modified by July 3, 2023. If other contracts come up for option or modification, the interim rule requires agencies to include the new FAR clause implementing the TikTok ban. And if contracts go unmodified, OMB guidance directs executive agencies to "[c]ease use of contracts that contain requirements that may include use of a covered application [i.e., TikTok] in performance of the contract."
What Should Contractors Do to Prepare for Compliance with the TikTok Ban?
OMB guidance to executive agencies provides a good starting point for federal contractors asking what they should do to comply with the new FAR clause. That is, "[i]dentify the use or presence of [TikTok] on information technology [as defined above]," "[r]emove and disallow installations of [TikTok] on IT owned or operated by [contractors]," and "[p]rohibit internet traffic from IT owned by [contractors] to [TikTok]." As the interim rule observes, contractors' internal "policies will need to be updated to include the prohibition on having or using a covered application" and "implementation of the prohibition may also require employee communications or training on this new requirement."
Given the popularity of TikTok, it is likely that most, if not all, federal contractors will encounter at least some employees who currently have the app on a company device or a personal device used for performance of a government contract, such as for email or work-from-home arrangements. Because of this, the government's advice to focus on effective employee communications and training will prove essential for an effective compliance effort. Important questions to address with employees will include which devices are impacted (whether company or personal) and even why the ban exists (from national security to political).
If contractors do not have the capacity to meet the new TikTok ban, now is the time to survey a firm's IT structures and policies to identify how to close the compliance gap. The government's interim rule expresses the expectation that compliance with the ban will not be overwhelming or expensive for federal contractors. While that should comfort contractors, it also means that the federal government is unlikely to accept excuses if contractors are not ready to comply in time. Venable and its government contracts specialists stand ready to help contractors understand the full scope and impact of the new FAR rules implementing the TikTok ban, as well as to help contractors design and implement employee messaging, training, and policies.