KATE THOMPSON DAVY: Untangling the controversial lawsuit against Apple

The fight over big tech’s management — or alleged mismanagement — of consumer privacy has ramped up in the US in a big way. The latest volley comes from the US department of justice, which filed a new antitrust lawsuit against Apple 10 days ago, in conjunction with 16 state and district attorneys-general. The suit claims that many of Apple’s tactics deployed in managing and marketing its iPhone devices are anticompetitive in nature, hidden behind misleading statements and promises to users.

The department claims Apple’s assertions of being privacy-led are disingenuous and, essentially, a sleight of hand meant to distract from its anticompetitive choices. In the lawsuit the department writes that Apple “wraps itself in a cloak of privacy, security and consumer preferences to justify its anticompetitive behaviour”, and that it chooses to “selectively compromise privacy and security issues when doing so is in Apple’s own financial interest”. 

For example, the complaint points out that the regular SMS service between iOS and devices running other operating systems (for example, Android devices) is less secure than its own iPhone-to-iPhone one, iMessage. Further evidence, according to the department, is that Apple offers public institutions and specific companies “access [to] more private and secure versions of app stores” and “accept[s] billions of dollars a year for choosing Google as its default search engine when more private options are available”.

Assistant US attorney-general Jonathan Kanter doubled down in the press conference announcing the department’s decision to file the lawsuit, saying the actions taken by Apple in effect made the system “less private and less secure”. Attorney-general Merrick Garland said at the same time: “Apple has maintained monopoly power in the smartphone market not simply by staying ahead of the competition on the merits but by violating federal antitrust law.”

In reply, the current World’s Most Valuable Company silver medallist, Apple, has made it clear it won’t be backing down without a fight, saying users of its products would experience less security on their devices if the department were to win this battle.

It’s not a new stance. In 2022 CEO Tim Cook told Global Privacy Summit attendees that “data-hungry companies would be able to avoid our privacy rules and once again track our users against their will” if they were forced to stop vetting. This statement was in response to two US bills and EU legislation on the issue.

Apple has barely missed a chance to lobby stakeholders and it continues to soft-lobby consumers — writing blogs and articles and emphasising the topic in successive product launches. Certainly, one can argue that Apple also landed the biggest blow to advertising overreach in the mobile age with its “stop tracking” feature, introduced across iOS devices a few years ago.

Still, the case has many asking if their iPhones are as private and protective as they like to believe, because that has long been a tick in the “pro” column for iPhone users.

The iMessage versus SMS point is particularly US-centric, with most text message users around the world opting for third-party messaging apps such as WhatsApp. Apple has also previously promised to move to the rich communication services (RCS) protocol, an SMS alternative already supported by Google. RCS isn’t inherently more secure than SMS but it allows for encryption extensions.

However, the question of the App Store is going to be a far harder argument to win. Apple is notoriously strict with the apps it lets inside its “walled garden”, demanding more documentation and transparency than its main competitor, the Google Play Store, where most Android users find their apps.

This can be seen as stifling, and it has certainly been used to skim revenue off the top — the much hated 30% charge — and control purchase behaviour such as making subscription via the Apple ID the only or default option.

These two policies have been challenged in courts around the world, to varying degrees of success, but even in the context of those legal challenges the suggestion that Apple’s App Store is safer ground for consumers is largely accepted. Vetting the apps and app makers that get to put their wares in front of the consumer market makes it harder for bad actors to list their apps, to hide malware and other dodgy software in apps, or sneak in wildly inappropriate app permissions.

Open app stores and Android devices have been shown by various experts and studies over the years to contain more risk of malware and spyware, sometimes many multiples more. 

The department says it wants to stop Apple’s “exclusionary conduct”, not reduce the vetting role it can play. But as The Verge points out in its reporting this week, “super apps like WeChat function as app stores of their own”, which would definitely create an inlet outside Apple’s infamous control.

Followers of the European Commission’s own big tech battles may be inclined to suggest this move from the US is long overdue, but many question its strategic footing given the reputation of security Apple enjoys.

It is far too early to place bets on the outcomes of this lawsuit, but most commentators see a mixed result on the horizon. For now, all we can say is privacy remains a key concern around the world for both proactive legislation and reactive legislation via the courts. 

• Thompson Davy, a freelance journalist, is an impactAFRICA fellow and WanaData member.