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Tick Tock, TikTok: Government Announces July Timeline for TikTok Ban to Contractor Devices

Litigation Alert

On June 2, 2023, the Federal Acquisition Regulatory Council (FAR Council) issued an interim rule extending to federal contractors an existing government prohibition on having or using the social networking service TikTok on certain devices, including smartphones and other information technology equipment. The proposed rule is just the latest example of the U.S.'s willingness to use federal procurement regulations as a way to limit national security risks posed by information technology and other equipment produced by entities with ties to certain foreign governments. 

The TikTok Interim Rule

The interim rule creates Federal Acquisition Regulation (FAR) 4.22, Prohibition on a ByteDance Covered Application, with a corresponding contract clause at FAR 52.204-27. The rule implements the Consolidated Appropriations Act, 2023 (CAA) and February 2023 Office of Management and Budget (OMB) Guidance prohibition on having or using TikTok or successor applications or services developed by Chinese-based company ByteDance Limited or any entity owned by ByteDance Limited (covered applications). The FAR clause "prohibits contractors from having or using a covered application on any information technology owned or managed by the [g]overnment, or on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor's employees." The ban applies to devices regardless of whether the government, the contractor, or the contractor's employee (for example, employee-owned devices that are part of an employer bring your own device (BYOD) program) own the device. In contrast, an employee's personally owned cell phone that is not used in the performance of the contract is not subject to the prohibition.

Notably, the interim rule relies on the statutory definition of "information technology" outlined in the CAA, not the FAR definition. The new contract clause is required in solicitations issued on or after June 2, 2023, and solicitations issued before then have until July 3, 2023, to make the necessary amendments to include the clause. The new FAR contract clause must also be included in future orders made under existing indefinite-delivery contracts or when an option is exercised or modification is made to existing contracts or task or delivery orders to extend the period of performance. The prohibition also applies to purchases at or below the micro-purchase threshold "where the performance of the contract may require the presence or use of a covered application, (e.g., where social media advertising services might be part of the procurement)." Comments for consideration in the formation of the final rule are due by August 1, 2023. 

Potential Implications for Federal Contractors

While the implementation and enforcement of the TikTok ban are yet to be tested, the prohibition creates new compliance risk for contractors, particularly as it relates to individual employees' use of social media in their personal capacity. Contractors would be well-advised to review and update their employee device policies and controls, as well as their government contracts compliance policies and training programs, to ensure they align with the new requirements. The new rule may also give rise to thorny privacy and employment-related questions under federal or state law. 

If you have any questions about compliance with the prohibition of TikTok on contractor devices or its application to your current or future contracts, or would like assistance with submitting comments on the interim rule, please contact one of the Miller & Chevalier attorneys listed below: 

Alex L. Sarria,, 202-626-5822

Jason N. Workmaster,, 202-626-5893

Sarah Barney*

*Former Miller & Chevalier attorney

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