The Open App Markets Act may deal a well-intended blow to Google and Apple — but it does it at the cost of users’ safety.
Earlier this month, the Senate Judiciary Committee voted to advance the Open App Markets Act, a bill that would restrict Google and Apple from operating their app stores with “preferential” business terms. Lawmakers argue that these companies use their dominance in the app market to impose unnecessary burdens upon developers, which in turn stifle competition and the open distribution of apps.
While the proposed legislation may seem like an attempt to improve the app ecosystem for the good of consumers, in reality, it’s just one of many bills servicing the ongoing political fight against “Big Tech.” If the Open App Markets Act was an earnest attempt at improving the app ecosystem, it wouldn’t prevent tech companies from prioritizing users’ safety and security.
But that’s exactly what this bill does. For example, it forces companies to allow “sideloading,” a process that gives users the ability to transfer apps or other files directly onto their devices. Android phones have this feature, while Apple’s iPhone does not. Apple believes that sideloading would “cripple the privacy and security protections that have made iPhone so secure, and expose users to serious security risks.”
This difference is a consumer-driven choice, not a disparity that requires government intervention. As Tim Cook, Apple’s CEO, has stated: “If you want to sideload, you can buy an Android phone … If that’s important to you, then you should buy an Android phone.”
So then why are Senators on both sides of the aisle pushing for this flawed bill? Well, there’s short-term political gain to taking on “Big Tech,” even if that means disrupting popular products and services.
In addition to sideloading mandates, the bill goes on to restrict covered companies from exercising discretion over apps that appear on their platforms. As the Section 230 debate has shown, legislation that inhibits content moderation often leads to unfavorable outcomes. If Google and Apple cannot remove offensive and harmful material from their app stores, the burden then falls on users to exert greater caution.
But for some Republicans, this bill is an opportunity to move the needle in the content moderation debate, towards a larger goal of “political neutrality.” During the markup session, Senator Ted Cruz proposed an amendment to “ensure that app stores, that are monopolists, would not be able to discriminate against apps based upon the political or religious viewpoints of the developer of the app or the app’s users. It requires neutrality so that they are true public fora.”
Although his amendment failed to gain traction, the bill already contains language that would accomplish the same objective. Section 3, “Protecting a Competitive App Market,” includes a provision that states: “[A] covered company shall not provide unequal treatment of apps in an app store through unreasonably preferencing or ranking the apps of the covered company.”
“Unequal treatment” and “unreasonable” are vague terms that will open the door to frivolous litigation, especially from groups who perceive censorship and bias on these platforms. As the Center for Democracy and Technology rightfully noted, “unreasonable preferencing” can “cover a broader panoply of harms than self-preferencing alone… [such that] developers of apps removed from app stores for violating policies will always be able to argue that any justification provided was pretextual.”
As I wrote back in August, the bill, as a whole, goes too far in dictating how private companies should operate, which in turn negatively impacts consumers. It attempts to establish common-sense rules to “level the playing field” between the tech giants and developers — but these are individual and granular business decisions, with far-ranging consequences beyond the senators’ purview.
