Could New Social Media Requirements for Federal Contractors Foreshadow National Changes?

Public comment closed August 1 on the rulemaking process for a final ban on TikTok and other social media applications (“apps”) from federal contractors’ devices. The new regulation will expand upon the interim Department of Defense, General Services Administration, and NASA (“the agencies”) ban, which went into effect on June 2, 2023. Over half of all states have banned TikTok on state government devices, with more likely to follow.[1] This rule may be the next step towards a national ban on TikTok, such as the one signed into law in Montana[2] or the one proposed in the U.S. Senate,[3] which would be a substantial change not only for federal contractors, but for all information-sharing entities.

The interim “TikTok ban” was implemented due to a number of privacy concerns. TikTok is an application used for creating and sharing short videos, and has over 150 million users in the United States.[4] Some critics have claimed that the government of the People’s Republic of China (“PRC”) influences TikTok’s parent company, ByteDance, to show certain content to users.[5]  They also claim that the PRC government compels ByteDance to provide it with user data.[6] Other critics have argued that TikTok’s data collection practices are excessive.[7] TikTok has denied these allegations.

In the No TikTok on Government Devices Act,[8] Congress granted the agencies authority to ban TikTok and any related apps developed by ByteDance from technology owned by contractors or their employees that is either (1) required to be used under a contract, or (2) used to a significant extent in the performing a contract.[9] The effect of the existing provision[10] is that government contractors may not have TikTok on any device used to perform a federal contract that is:

1. Solicited or awarded on or after June 2, 2023;
2. An indefinite delivery or quantity contract;
3. An option exercised by the agencies; or
4. A modification to a contract awarded before June 2, 2023.

The TikTok ban even applies to contracts below the simplified acquisition and micro-purchase thresholds, the acquisition of commercially available items, and subcontracts. However, equipment used only incidentally to a federal contract is unaffected. Contractors may seek an exemption from the ban for law enforcement, national security, or security research purposes.

The final rule may expand the list of prohibited apps, add or remove exceptions, more specifically define which devices are exempt, and more. The Federal Acquisition Regulatory Council has stated that it expects contractors to review their technology policies in light of the new regulation. Federal contractors should:

1. Remove TikTok from devices used to perform federal contracts;
2. Update their employee policies to reflect the ban as it applies to personal devices;
3. Meet with their IT department to block access to the TikTok app and URL; and
4. Update subcontract templates to reflect the ban.

For assistance complying with federal and state social media bans, contact Evan Yahng or your Dinsmore attorney.