Votre patron peut-il vous interdire d’utiliser TikTok ? Voici ce qu’il faut savoir

Now that TikTok will soon be banned on federal government devices — with several states issuing similar bans over security concerns — you may wonder whether to expect more bans on the undeniably popular, Chinese-owned social media app in the U.S.

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For millions of U.S. government employees, scrolling through TikTok’s endless “For You” page of videos on phones, laptops and any other federal device issued will be outlawed after President Joe Biden signed the bipartisan omnibus spending bill on Dec. 29.

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A month prior to this, South Dakota Gov. Kristi Noem banned state workers from using the app on state-owned devices given the app’s connection with China on Nov. 29, the Associated Press reported.

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Now, nearly half of states, including Maine, Mississippi, North Carolina, Kansas, Louisiana, New Jersey and Ohio, have followed suit.

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And yes, bosses at private companies and corporations can ban workers from using TikTok on work-issued devices “more easily than the federal government,” J.S. Nelson, a law professor and visiting researcher at Harvard Law School’s Program on Negotiation who focuses on workplace issues and ethics, told McClatchy News.

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“You have First Amendment protection of speech vis-a-vis the federal government and by extension, state governments,” Nelson said. “You don’t have that when it comes to private employers and private actors.”

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Here’s what you need to know.

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A wave of TikTok restrictions across the U.S.

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Maine became one of the most recent states to ban the use of TikTok on both state devices and personal devices that connect to the state’s WiFi network, according to a directive issued by the Maine Office of Information Technology on Jan. 19, WGME-TV reported.

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The directive, which is “in response to well-documented national security risks” and “recently enacted federal legislation,” said the app must be deleted by Feb. 1.

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With the federal government’s TikTok ban, “the government here is acting specifically as an employer,” Nelson explained to McClatchy News.

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But it’s not a total, outright TikTok ban.

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“This is not the government acting on citizens in general, but literally in the employment context saying, we issue these devices, we are now putting conditions on how they’re used,” Nelson said. “That does not implicate your First Amendment rights the same way as saying, we are banning the app from the entire country, you can’t go to your personal devices and use it personally or express yourself in other ways.”

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The Biden Administration has been clear about its security concerns over TikTok, which is owned by Chinese technology company ByteDance, headquartered in Beijing.

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The administration “is focused on the challenge of certain countries, including China, seeking to leverage digital technologies and Americans’ data in ways that present unacceptable national security risks,” a White House national security spokesperson told McClatchy News.

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Kansas Gov. Laura Kelly banned TikTok on state-issued devices on Dec. 29, saying that “TikTok mines users’ data and potentially makes it available to the Chinese Communist Party — a threat recognized by a growing group of bipartisan leaders across the United States.”

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In regards to the TikTok bans on state devices and networks, TikTok spokesperson Brooke Oberwetter described it as a political move based on misconceptions.

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“We’re disappointed that so many states are jumping on the political bandwagon to enact policies that will do nothing to advance cybersecurity in their states and are based on unfounded falsehoods about TikTok,” Oberwetter told McClatchy News

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Yes, your boss could ban TikTok — on work devices

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Similar to the federal and state bans, a private employer can easily ban workers from accessing TikTok on their work devices, according to Nelson.

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While the U.S. Constitution protects the American public from the federal government overreaching, she said, “it doesn’t protect us from private actors,” like a company or corporation.

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“You don’t have a right to use your work device to access anything you want,” Nelson said.

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Jennifer Scharf — a trial lawyer for The Coppola Firm in Buffalo, New York, and the director of the University at Buffalo School of Law’s Trial Advocacy Program — believes restricting the use of TikTok on a company-issued device would be an appropriate social media policy.

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When it comes to a personal device, Scharf, who specializes in employment law, told McClatchy News that it’s possible for a boss to restrict their employees’ overall use of social media during work hours from a “theft of time” standpoint.

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While it depends on state laws, it’s unlikely that an employer could ban their employees from using TikTok entirely, Scharf said. She pointed to a New York labor law that protects a person’s recreational activities outside of work hours.

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A New York employer can restrict what their employees post on social media, such as the sharing of confidential company information, but not the overall use of an app like TikTok, Scharf said.

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“There can’t be restrictions for engaging in lawful activities,” Scharf explained. “And obviously something like using TikTok would be, at least right now, considered a lawful activity.”

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But what about people who may use TikTok on a personal device that’s also connected to their work email?

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This is where a person’s work life and home life becomes entangled, according to Nelson, who advises keeping your personal device separate from your employer’s network.

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“If your employer wants you to have a device, you should ask the employer to pay for the device,” Nelson said.

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When asked if there’s any concerns about the state and federal TikTok bans in place, Nelson said “what I’m particularly concerned about is the overreach of employers when it comes to employees’ non-working life.”

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“There’s so much entanglement between your work life and your home life, especially after COVID-19 and so many people having to work from home,” Nelson added. “It’s a privilege to be able to work from home. But it does create all kinds of complications.”

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Scharf said the issue becomes “stickier” when considering whether it’d be possible for an employer to ban TikTok use on an employee’s personal device that also has access to work emails.

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From a national security perspective, particularly in regards to employees who may have national security secrets on their phone, there may be a legitimate rule that an employer could establish against using TikTok on a personal device, Scharf said.

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“A better practice would be to not allow your employee to access email on a personal phone and issue them a company-issued device,” Scharf said, adding that’s what she would suggest an employer to do.

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The push for a total TikTok ban

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In 2020, then-President Donald Trump tried banning TikTok from the U.S. entirely over national security concerns by issuing an executive order. He did so under the International Emergency Economic Powers Act.

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President Joe Biden revoked Trump’s executive order and issued a new one to instead review applications owned by foreign governments and potential security risks in June 2021, The New York Times reported.

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In February, the House Foreign Affairs Committee will vote on a bill that seeks to prohibit TikTok in the U.S., according to Reuters.

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Oberwetter said “calls for total bans of TikTok take a piecemeal approach to national security and a piecemeal approach to broad industry issues like data security, privacy, and online harms.”

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“We hope that lawmakers will focus their energies on efforts to address those issues holistically, rather than pretending that banning a single service would solve any of the problems they’re concerned about or make Americans any safer,” Oberwetter added.

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What is TikTok doing to address national security concerns?

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According to Oberwetter, TikTok has been working on a plan with the Committee on Foreign Investment, an inter-agency committee of the federal government, for the past two years to address U.S. national security concerns over the app.

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The plan, which was created after Trump’s attempt to ban TikTok, is called “Project Texas,” according to Lawfare.

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It entails addressing “key issues of corporate governance, content recommendation and moderation, data security, and system access,” with TikTok investing about $1.5 billion into the plan, Oberwetter said.

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Additionally, the plan involves a “comprehensive package of measures with layers of government and independent oversight to ensure that there are no backdoors into TikTok that could be used to manipulate the platform,” Oberwetter added.

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Outside of the government state bans, universities, including the University of Wisconsin System and Auburn, have also banned using the app on university devices, the Associated Press reported.

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Students at Auburn have been “rolling their eyes” at the measure as it hasn’t stopped them from scrolling through the app by using their own data plans, associate professor Hilary Gamble told The Washington Post.

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