Comment by gnicholas
2 years ago
> The Justice Department, which began its investigation into Apple in 2019, chose to build a broader and more ambitious case than any other regulator has brought against the company.
As I was reading the specific charges detailed in the article, I was thinking this case seems like a stretch and will be difficult to prove. Apple will argue that security and/or performance reasons drove their decisions related to browser choice, messaging, and Apple wallet. FWIW, I am a former lawyer and spent a little time doing antitrust law for the CA DOJ, a long time ago. Just my two cents.
> Apple will argue that security and/or performance reasons drove their decisions related to browser choice
That's true, but odds are they have a lot of e-mails and a lot of employees who can testify to the browser choice decision being driven by lock-in. The iMessage emails were pretty unambiguous with regards to how it is used in an anti-consumer way. (https://www.theverge.com/2021/4/9/22375128/apple-imessage-an...) Similar stuff will exist for everything they do, because they cannot distort the reality that in 2024 their software kind of sucks, and that their customers only use it because they don't have alternatives and Apple prevents those alternatives from being viable.
Yeah it'll be interesting to see (via discovery) whether Apple has policies like Google's regarding "words not to use".
If a company doesn’t, I’d suspect the competence of their legal dept.
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There’s nothing wrong with having “words not to use.” Companies have to think ahead to some possible lawsuit in ten years where a jury might have a damning interpretation of some minor word choice.
Do such policies trigger adverse inference or some similar concept?
I don’t think those emails are so damning. A company should not be required to write software for its main competitor platform, just to make it easier for people to adopt its main competitor platform.
"the reality that in 2024 their software kind of sucks, and that their customers only use it because they don't have alternative"
That's an extremely hot take. When devices are mostly just slabs of glass and the interface and what is done, is entirely the software, customers are choosing the device based on the Apple software, not in spite of it.
I don't know if I'm the exception, but I also think Apple's software absolutely sucks.
UX is complete and utter trash.
But the M1 and onwards hardware is so good, I put up with it.
Just off the top of my head:
- Never had a $2000+ laptop that couldn't connect with more than 2 monitors without an expensive DisplayLink dock and drivers. And even then, it's janky AF
- Rendering on non-Apple external monitors sucks; night and day difference when I connect a Windows laptop to my Dell monitors
- Terrible with system font scaling
- Inconsistent usage of button sizes in their native dialogs
- Can't tab cycle through minimized windows
- Windowing system sucks compared to Windows
- Whatever is happening here: https://www.youtube.com/watch?v=PnGT041xkGE
- I ship a PWA for one of my apps and by far Safari is the one that has the most issues with updating
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Yeah this stuff usually ends up "I don't like the interface" when you press people. Which is fine. However my macbooks have been perfectly serviceable and still ticking while my former asus and dell laptops died after a few years right before I switched over to mac laptops and one is 7 years old and still ticking with not too bad battery life. That said I find apple has probably overstepped their social contract as a corporation and it's likely time for a little audit
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> customers are choosing the device based on the Apple software, not in spite of it.
https://www.wsj.com/articles/why-apples-imessage-is-winning-...
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It really depends. With MacBooks, for example, many people who buy them these days do so because of things like battery life and quality of the trackpad, while quietly hating on macOS.
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I use apple products because of the software and consider it better then the alternatives.
It seems easy to prove to me; anti-trust law is intentionally vague and broad to allow the government to prosecute all kinds of monopoly tactics. Apple had the option to give a warning to users that using an alternative app store may risk security. It doesn't have to block it all-together. Same with Apple Wallet.
it's quite often shot down by judges as well too because of the vagueries in laws, it's a two edge sword and you're commonly at the whim of the trial jurisdiction. Just look at recent 5th circuit vs most other circuits.
Yes, there is a lot of discretion in what cases are brought, and if a new administration comes in next year this may be dismissed/deprioritized. Still, I doubt Tim or other Apple employees will be making many donations to Biden's challenger! (Shareholders might be a different story.)
Even if the case continues, it will be a challenge to win. Apple has asymmetric information and knows what they can use to defend the various allegations.
Biden's challenger was in office at the time when the Justice Department started the investigation.
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You could make the asymmetric information argument for any defendant.
I'm guessing the plan is to cast a wide net, then hope that you can dredge up some incriminating or morally ambiguous quotes during discovery. When you have a company of 100,000+ people, there's probably some "haha we're killing the competition" in there, which you can then use to prop up the case.
And then either use that to win the trial, or force Apple into settling.
I'm (legitimately) curious could the fact that (almost) all of that is now open in the EU due to their laws but not the US. Would that hurt their argument since they blocked off the change from the US. Or would that all be solved by a statement along the lines of "Well, EU iPhones are now less secure."
The arguments about performance and security aren't about whether Apple could open up, but about whether they should. The changes in the EU will answer the latter, but slowly.
The EU laws allow exceptions for security, but most of the Apple shenanigans related to the DMA were walked back the minute the EU said they would launch an investigation into the matter.
So no, I would say it is absolutely about whether they can open up and still be secure. It seems that they lack confidence that the arguments they had put forward would survive scrutiny asking just that question. Heck, there are even exceptions in the law that would allow them extended time periods in order to comply with the requirements in order to ensure security. So if it is just a question of needing more time, they can get it, and if it is a question of not being possible for users to be secure when interoperable with third parties, they can get exceptions for that.
Every employee that joins Apple goes through a course that teaches a few case studies about Apple's culture. One of those is how Steve Jobs made the decision to kill Flash. IMHO it was a no brainer and if this sort of thing needs to be litigated in court, it's a travesty.
Everything needs to be litigated.
People waved the EU case away with the same argument. Actually it is a kind of iArgument.
However nobody buys it besides their most loyal customers.
The eu case seemed to make more sense and was pro consumer: open up messaging / App Store and switch to usb c.
This one seems different at first glance,
Nah, users really are dumb and really will follow steps that will result in malware getting on their devices. This happens all of the time in Android-land. Burying the setting won’t change this, people will follow tutorials to disable the security protections if they think it will get them the content they want (and, in some cases, it will, wrt pirate apps etc).
There’s no real way to square the circle: either Apple (and the state) has realtime app censorship control (nominally for malware, as well as any other thing the state or Apple’s business model feels existentially threatened by), or the user can install any app they want, with all of the associated risks. Even with notarization and self-distribution you’re still in the first category because the state can compel Apple to treat protest apps or non-backdoored e2ee messaging apps the exact same as they do malware, and prevent them from launching.
Users mostly want the former, because most users aren’t worried about government censorship or oppression. Tech people and cypherpunks and pirates and protesters usually want the latter. Tech people usually want the former for their parents/grandparents for whom they serve as device sysadmin.
> Apple will argue that security and/or performance reasons drove their decisions related to browser choice, messaging, and Apple wallet
Then why, for the sake of the argument, do they allow third party browsers, messaging and payments on MacOS ?!?
Apple makes it sound like MacOS is horribly insecure.
Legacy decision? Would they do the same starting a new desktop OS today? Much more high risk personal data on an iPhone (e.g. health data, biometrics) requiring stricter security? Many more sensors which could be abused by nefarious actors on iOS (GPS, lots of mics, lidar, cameras, etc) and these are always with us?
They could easily ban these third party applications on MacOS too. So it is more likely that it's simply anti-competitive reasons.
If a hacker got full remote access to my phone it’d be a complete and utter disaster. Especially since the phone itself is considered a two factor authentication device by several services and my employer.
And the attack vectors are more numerous. I have ten times as many apps on my phones, it’s always on, always connected, and may frequently connect to wifi networks I don’t fully trust.
The consequences and the attack vectors for a hacker to attack my laptop are fewer.
I’m on the side of wanting Apple to open up a bit more. But I it’s absolutely valid to want the iPhone to be more secure than a laptop. And I seriously hope Apple isn’t forced to let people install apps that aren’t signed and reviewed. I can guarantee you that critical services in your life will force you to install insecure and straight up dangerous apps. The banking sector in some countries is a prime example of that, especially back in the ActiveX era.
> If a hacker got full remote access to my phone it’d be a complete and utter disaster. (...) The consequences and the attack vectors for a hacker to attack my laptop are fewer.
I don't buy that argument. I have more important files on my laptop than on my phone.
Is there a wave of people being hacked with full remote access to their phones due to shoddy Android banking apps?
Performance is less of an issue on computers because battery life isn’t as much of a concern. Also, they allow other messaging and payments on iOS just like they do on MacOS. They just don’t offer the unique payment chip access on iOS to third parties.
I'm not a lawyer, but I agree. I was alive and working when the US brought it's antitrust case against Microsoft back in the early 2000's.
This feels like a vastly different case, and not one that they'll likely be able to win against Apple.
They may or may not prevail, but in the meantime they will likely have to slam the brakes on any closed feature developments. That alone is good for consumers.
How do you think they would spin Messages interoperability as security or performance?
The messaging claim seemed to be about carrier based messaging; SMS and MMS, and I guess in theory RCS (but is that really carrier based if Google has taken it upon themselves to enroll most Android users on a Google server)
Apps that read inbound SMS may be malicious and use that ability to steal verification codes. Or they may not be actively malicious, and meerly handle the data in an insecure way that makes messages available to others.
Performance, I dunno. Maybe they could argue something about how time between user requesting an SMS be sent and it actually getting sent is very important, and similar for display, and that they're more likely to do that right. I've certainly seen some Android manufacturer provided SMS clients that do much better than others on that, although I have no recent performance notes since I no longer get massive floods of SMS from too simple monitoring systems.
In the Epic lawsuit it was shown that Apple really actually more cared about this than "security":
> “The #1 most difficult [reason] to leave the Apple universe app is iMessage ... iMessage amounts to serious lock-in,” was how one unnamed former Apple employee put it in an email in 2016, prompting Schiller to respond that, “moving iMessage to Android will hurt us more than help us, this email illustrates why.”
> “iMessage on Android would simply serve to remove [an] obstacle to iPhone families giving their kids Android phones,” was Federighi’s concern
> Apps that read inbound SMS may be malicious and use that ability to steal verification codes. Or they may not be actively malicious, and meerly handle the data in an insecure way that makes messages available to others.
Apple can't make that argument since they allow apps that scan SMS messages for spam.
End to end encryption can only be guaranteed if you control both ends.
Is the internet not built on public key encryption between two parties?
How does PGP solve this?
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I think they'll claim security for Messages. I don't have nearly enough information to know if they can win that particular issue, and it sounds like there are reasonable arguments on both sides. But they don't have a monopoly on messaging — WhatsApp is huge, Signal and others exist. I don't think Apple lets you use Siri to send messages via other services, or at least they didn't used to let you. But other than that they are granted near parity on iOS.
Siri does let you send messages with other services these days. (I think it got added in the last year or two, and those apps need to be updated to support it, but it's there!)
Security: there’s no cross platform E2E messaging standard they could have adopted. Given that the DoJ is already breathing down their neck for working with Google on search, using Google’s RCS extensions and servers might also be problematic.
I don’t think the government could force them to adopt RCS without new legislation or bring iMessage to other platforms.
> there’s no cross platform E2E messaging standard they could have adopted.
Could they not have made their own? I don't think they'd be required to use open standards for the argument to be made, they just need to release an iMessage app for Android.
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> Apple will argue that security and/or performance reasons drove their decisions related to browser choice
Didn't work in Europe. The alternative browser growth in Europe is massive. Literally, an industry revitalized overnight.
Perhaps, but I'm glad they're at least trying.
It seems to me the US would be better off copy-pasting EU regulation than trying to smush apples behavior into old school antitrust violations.
Well, The Justice Department at least can't do that, because they can't write laws.
Since when does “the US” consist exclusively of “the Justice Department” and not, e.g., the FTC (which writes antitrust regulations within existing law) and Congress (which writes laws).
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If only US had a sort of a legislative body where you elect people to and then they actually can write laws? That would be great.
This implies the DoJ doesn’t interact with other departments at all, and I don’t think that’s the case.
The EU legislation wouldn’t fly for a second in the US system of law.
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Issuing fines to American big tech is essentially a revenue line item now
I agree and I question the wisdom of it, but the idea of this aggressive antitrust enforcement, which so far has more strikes than hits, seems to be to make a grinding, years- (or even decades-) long push to shift the understanding of what antitrust is and make major changes to the landscape; kind of an inverse of what the conservatives have been able to do with various issues, where their positions were initially laughed out of the room but now have the weight of Supreme Court decisions behind them decades later.
I think you're right: https://www.thebignewsletter.com/p/whats-coming-in-2024-on-t...
Matt Stoller and Lina Khan run in the same circles so, yes, probably what he writes is a reasonable proxy for what she thinks.
>> I question the wisdom of it, but the idea of this aggressive antitrust enforcement, which so far has more strikes than hits
We only really take these up when they are blatant (price fixing, apple and books, MS and vendors). Or lock ins where there is NO alternative (MS and browsers). This doesn't really meet those bars.
If Apple wins this one at home, then they can quickly cry about other countries regulations being "anti competitive".
I have to wonder if this political on some level.
> We only really take these up when they are blatant (price fixing, apple and books, MS and vendors).
Not anymore... look at the failed action to stop MS acquiring Activision for instance. Was that "blatant"? I guess not since enforcement failed. Lina Khan's whole thing is aggressively broadening antitrust enforcement.
yeah its a novel expansion of antitrust law to say that merely maintaining features that the market chose is an antitrust violation
if you weren’t anticompetitive to get to that place, thats been good enough?
> As I was reading the specific charges detailed in the article, I was thinking this case seems like a stretch and will be difficult to prove.
If this case is thrown off how long can it take for them to make another antitrust case with a different set of stronger arguments ?
Given that they started in 2019 for this one, if lost there is real risk of waiting another 5 years for any meaningful change.
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Perhaps this is essentially more lawfare against a party antagonistic to the political aims of Washington players. We know that our national (as well as state) law enforcement entities have been alleging for more than a decade now that Apple's encryption practices stymie their efforts to catch "bad guys." What better way to put back room pressure on a company.
This is a false narrative. iPhones back up full message history and all photos by default in a non-e2ee fashion that is easily readable by both Apple and the government unless the user and everyone they message with specifically opts into e2ee (which approximately nobody has, even in tech circles).
There is no “going dark” issue on iOS platforms. Apple has played ball in full with the USG on that front. In fact, Android backups are e2ee so the government can get more data from Apple on iPhone users than they can get from Google for Android users.
Apple has option to enable e2ee on backups now. It sort of defeats the purpose of backup though because if you lose device you lose the backup (assuming you only have one device and didn’t setup recovery keys off device)
The article leaves out a ton over the actual compliant // filed in Eastern NJ for a reason. They must be going for Verizon or Samsung witnesses? If the definitions set forth by the DOJ are accepted by courts, this is a slam dunk on Apple. If Apple can redefine things like 'Super Apps' and 'Mini Apps,' then this thing is a wet paper bag.
Personally I see avenues for both outcomes.
> If the definitions set forth by the DOJ are accepted by courts, this is a slam dunk on Apple.
This is a very low bar. It is of course the case that if you assume one party's definitions are accepted then they will win. The battlefield will be the definitions (just like in patent law the battlefield is the claim construction).
Sometimes these lawsuits are filed not strictly for legal reasons but to put pressure on companies, or as political payback to certain special interest groups (election year). Even if the case is eventually thrown out of court it may succeed in shifting Apple's behavior.
They will make that argument, and the government will point out that Apple is trying to charge 27% everywhere those choice decisions were taken away, pretty conclusively proving... it's all about collecting the rent.
Charging 30% is outrageous to me, but it also appears to be the standard used by almost all of their competitors. It'll be interesting to see how the government convicts Apple of doing something that almost all other large companies are doing.
It's a no-win situation for them. If once they established themselves as the dominant player in the cell phone market they started undercutting everyone else on fees that could also be seen as predatory.
> it also appears to be the standard used by almost all of their competitors
FWIW - this is further evidence of anticompetitive behavior. In a competitive market, entrants would be trying to drive distribution costs to 0. The fact that Apple makes its entire App Store revenue off those distribution revenues is highly telling.
It would only be considered predatory if they charging a rate below their own costs of distribution. I.E. If it costs Apple $0.10 to cover the costs of app distribution per download, then it would be completely legal for them to charge $0.11, but illegal and predatory to charge $0.09.
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But sideloading is viable for everything else... I think that's the core argument that makes what Apple does criminal
> it's all about collecting the rent
Which is not illegal.
It should be. Note that the economics word "rent" essentially refers to any and all unearned income that you acquired through raw power. Which, yes, includes real estate rent in excess of maintenance and financing costs.
Isn't this what this lawsuit will decide?
The US government has let its definition for monopolistic behavior slip so much over the last few decades I don't think you could successfully prosecute for anything short of sending thugs to break your competitors' kneecaps. The days when the DOJ would prosecute a company for including a web browser with an OS are long gone.
The facts were different in the Microsoft case. If they had built in Internet Explorer as a "free" feature in a Windows upgrade it would have been tough to prove anticompetitive behavior. But they originally sold IE as a separate product, like as boxes in retail stores. They only bundled it with Windows later and there was clear evidence during the trial that they made the change specifically to kill Netscape.
A bit of hyperbole, but otherwise a fair assessment based on my readings. HBR has a piece from 2017 on this.
https://hbr.org/2017/12/the-rise-fall-and-rebirth-of-the-u-s...
The golden era of anti-trust was 1940s-1970s, but faded with the rise of the Chicago School of Economics.
It does indeed seem to be coming back more now.