Is the TikTok Ban Constitutional? For Federal Contractors, the Supreme Court's Decision Won't Make a Difference

There’s a lot of talk about the looming TikTok ban. In fact, the Supreme Court today issued a briefing schedule and set January 10, 2025 as the date for oral arguments—a scant nine days before the ban goes into effect on January 19, 2025. At issue is whether a law that bans the distribution or updating of the TikTok app violates the First Amendment.

What does this mean for federal contractors? Honestly, not much even if the Supreme Court rules that the TikTok ban violates the First Amendment. Why? Because federal contractors will still be bound by the Federal Acquisition Regulation (“FAR”) clause that implements the prohibition of “the presence or use of a covered application on information technology, including certain equipment used by Federal contractors.” See FAR 4.2202(a)(describing prohibition); see also FAR 52.204-27 Prohibition on a ByteDance Covered Application (Jun 2023). As far as contractors are concerned, the prohibition applies to “any information technology used or provided by [a] contractor under a contract, including equipment provided by the contractor’s employees.” FAR 4.2202(b).

The definition of “information technology” broadly encompasses many kinds of equipment including cell phones, tablets, laptops and personal computers. If those devices are government-owned devices, they’re information technology. But devices owned by contractors or by their employees won’t necessarily be information technology for federal contractors unless they’re being “used by a contractor under a contract with [an] 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. . . .” FAR 52.204-27(a)(1). The definition of information technology does not, however, “include any equipment acquired by a Federal contractor incidental to a Federal contract.” FAR 52.204-27(a)(2).

With that definition in mind, here is the text of the specific prohibition:

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(b).

I wrote about the TikTok ban applicable to federal contractors in July 2023 and noted that implementing it could be quite confusing because of the arguably conflicting messages sent by the information technology definition, and I cited several instances of that confusion. I suggested that, while contractors needed to take care that they didn’t run afoul of the prohibition, there was not necessarily a need to order all employees to remove TikTok. In other words, contractors could conceivably take a nuanced approach that balances the contract requirements with employee preferences,

Returning to the case now before the Supreme Court, the argument concerns what everyone calls the TikTok ban. However, the “ban” that is at issue is not a ban on the app (or other covered apps that are controlled by foreign adversaries and are determined by the President to present a threat); rather, the law prohibits entities from distributing, maintaining, or updating covered apps or providing internet hosting services that enable the distribution, maintenance, or updating of the apps. What this really means is that, come January 19, you won’t be able to download or update the app from your friendly app store.

However, if you’ve got the app, you can keep it regardless of what the Supreme Court decides. Hence, for federal contractors, it matters not how the Supremes rule—the effect of the FAR clause will remain unchanged for compliance purposes. A contractor (or its employees) cannot have a ByteDance application (i.e., TikTok) “on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor's employees.”

So – enjoy the Court’s debate over TikTok, argue about it with your friends (or offspring) but don’t rethink your TikTok compliance practices. They’ll stay the same no matter what.

If you’re looking for a little light reading, you can find the DC Circuit’s decsion that will be at issue before the Supreme Court here: https://media.cadc.uscourts.gov/opinions/docs/2024/12/24-1113-2088317.pdf