Monday, April 12, 2021

Apple and Google abuse their app store monopolies to obstruct governmental COVID pandemic control efforts in the UK (not even for the first time)

For a long time I gave Apple and Google the benefit of the doubt with respect to app store policies. When my own app development company got affected by the utterly unreasonable COVID app rules those monopolists had promulgated more than a year ago, I couldn't help but conclude that the situation was unsustainable. And brought my own antitrust complaints against those companies in multiple jurisdictions (including the UK) though I continue to agree with those companies in some other areas, particularly patent policy.

It's bad enough that private companies like the Coronavirus Reporter team and mine were prevented from making our little contributions to the fight against COVID-19. But what's really unfathomable is that Apple and Google's hubris even impedes governmental pandemic control efforts.

This must be a wake-up call for lawmakers, regulators, and courts. Alternative third-party app stores for iOS and Android are absolutely needed. Even governments need such alternatives in a situation like this.

The BBC's technology desk editor Leo Kelion reported today that "[a]n update to England and Wales's contact tracing app has been blocked for breaking the terms of an agreement made with Apple and Google." Yes, this is about the official contact-tracing app provided by the National Health Service (NHS).

With UK shops, restaurants and pubs reopening today thanks to a relaxation of COVID prevention rules, it was actually a very smart idea for the NHS COVID-19 app to ask users to scan QR codes when entering such places, thereby enabling the system to inform people if they had been in a virus hotspot at a critical moment.

In the Western world, contact tracing has failed to make a noteworthy positive impact. In parts of Asia, however, those apps made a huge contribution because people were not even allowed to enter restaurants unless the contact-tracing apps on their smartphones greenlighted them (meaning they had not recently been near an infected person for a certain period). It made a whole lot of sense for the UK to adopt what worked in Asia.

But Apple and Google are not susceptible to reason in the COVID context. They shamelessly distribute (partly for free, partly for money) material that promotes bogus medications and treatments. Such material may not explicitly mention COVID-19, but stuff like Homeopathy for Epidemics discusses pandemics at a general level and certainly talks about COVID symptoms (even without mentioning COVID). Such material raises false hopes that what has been proven over and over to be fake medicine could solve the problem. Homeopathy is essentially about putting tiny white sugarballs in your ear and you'll be fine without masks, without vaccination, and don't have to see a doctor if you show symptoms of COVID-19 because your body, with the help of bogus medicine, will cope with everything all by itself.

While the U.S. Department of Justice brought enforcement action against a "chiropractor" promoting fake COVID-19 treatment, Apple and Google get away with the distribution of disinformation.

Apple and Google abuse their app store monopolies in many ways. As the BBC notes, "[u]nder the terms that all health authorities signed up to in order to use Apple and Google's privacy-centric contact-tracing tech, they had to agree not to collect any location data via the software." And on that basis, the latest update to the UK's COVID-19 app was rejected.

Pacta sunt servanda--contracts must be fulfilled--but not when abusive monopolists unilaterally impose unfair and unreasonable terms. Epic Games was absolutely right last summer to refuse to comply with Apple's and Google's in-app payment rules, and the UK government shouldn't be bound to illegal terms either.

There already is an ongoing UK investigation of Apple's suspected anticompetitive conduct in connection with the App Store. On March 30, Epic complained to the UK's Competition & Markets Authority. Competition enforcers in the UK should say "enough is enough."

About a year ago, Nature reported on contact tracing apps and mentioned that an earlier version of the NHS app was tested, "[b]ut because this app eschews Apple and Google’s protocol, it will not be able to run in the background on iPhones." An expert called this "a nail in the coffin." Obviously, contact tracing is of little use if you actually have to have the contact tracing app running in the foreground all the time.

So the UK has been hit by Apple's abusive conduct for the second time. Nature mentioned that "[t]he United Kingdom and France [we]re still pursuing centralized options." By now we know that contact tracing apps have been next to useless in those countries.

Even the contact tracing apps developed by several U.S. states, such as Utah and the two Dakotas, ran into the problem that "Apple and Google will not let apps that record location data use their APIs."

As the BBC's Rory Cellan-Jones accurately notes:

"What this underlines is that governments around the world have been forced to frame part of their response to the global pandemic according to rules set down by giant unelected corporations.

"At a time when the power of the tech giants is under the microscope as never before, that will leave many people feeling uncomfortable."

Apple uses privacy as a sword and a shield, and Google has recently discovered privacy as a means of cementing its monopoly with a technique it calls FLoC. Apple's credibility in the privacy and security contexts will be among the issues to be discussed in court next month, and Apple appears to be profoundly worried--so much so that Apple didn't event want to justify its App Store abuse at a United States Senate hearing, but after a letter from Senators Klobuchar (D-Minn.) and Lee (R-Utah) reconsidered.

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