The Department of Defense, General Services Administration, and NASA have issued a new interim rule, FAR 52.204–27, implementing Section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117–328), the “No TikTok on Government Devices Act,” which prohibits the use of TikTok or other applications developed by Chinese-owned ByteDance Limited on contractors’ IT devices.

The new regulation states that government contractors are “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.”

The term “covered application” means TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.

According to the U.S. Code, the term “information technology”:

(1) Means any equipment or interconnected system or subsystem of equipment, used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency, if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency that requires the use—

(i) Of that equipment; or

(ii) Of that equipment to a significant extent in the performance of a service or the furnishing of a product;

(2) Includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources; but

(3) Does not include any equipment acquired by a Federal contractor incidental to a Federal contract.

Accordingly, government contractors are not allowed to have TikTok on IT devices that are used in the performance of government contracts. This prohibition applies to devices owned by the government, the contractor, or the contractor’s employees if the device is used in connection with a government contract—including those devices used as part of a “Bring Your Own Device” program.

Importantly, employee-owned cell phones are only outside of this prohibition if they are not used as part of a BYOD program or for performance of a government contract.

This interim rule is effective immediately. Contractors are required to include the substance of the clause in all subcontracts, including subcontracts for the acquisition of commercial products or services. You can find the full text of the clause here.

How to Comply?

– Remove TikTok from work devices including phones, computers, or any devices used to a significant extent in the performance of a service under a government contract.

– Update policies for employees regarding prohibited applications to bar the use of TikTok on personal devices that are used to a significant extent in the performance of a service under a government contract.

– Meet with your IT department to discuss blocking access to TikTok on employee devices.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

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