The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Fourth Antitrust Shoe Drops, on Apple This Time
Episode 498 of the Cyberlaw Podcast
The Biden administration has been aggressively pursuing antitrust cases against Silicon Valley giants like Amazon, Google, and Facebook. This week it was Apple's turn. The Justice Department (joined by several state AGs) filed a gracefully written complaint accusing Apple of improperly monopolizing the market for "performance smartphones." This questionable market definition will be a weakness for the government throughout the case, but the complaint does a good job of identifying ways in which Apple has built a moat around its business without an obvious benefit for its customers. The complaint focuses on Apple's discouraging of multipurpose apps and cloud streaming games, its lack of message interoperability, the tying of Apple watches to the iPhone to make switching to Android expensive, and its insistence on restricting digital wallets on its platform. This lawsuit will continue well into the next presidential administration, so much depends on the outcome of the election this fall.
Volt Typhoon is still in the news, Andrew Adams tells us, as the government continues to sound the alarm about Chinese intent to ravage American critical infrastructure in the event of a conflict. Water systems are getting most of the attention this week. I can't help wondering how we expect the understaffed and under-resourced water and sewage companies in this country to defeat sophisticated state-sponsored attackers. This leads Cristin and me to a discussion of how the SEC's pursuit of CISO Tim Brown and its demands for more security disclosures will improve the country's cybersecurity. Short answer: It won't.
Cristin covers the legislative effort to force a divestiture of Tiktok. The bill has gone to the Senate, where it is moving slowly, if at all. Speaking as a parent of teenagers and voters, Cristin is not surprised. Meanwhile, the House has sent a second bill to the Senate by a unanimous vote. This one would block data brokers from selling American's data to foreign adversaries. Andrew notes that the House bill covers data brokers. Other data moguls, like Google and Apple, would face a similar restriction under a new executive order, so the government will have multiple opportunities over the next few months to deal with Chinese access to American personal data.
In the wake of the Murthy argument looking at the first amendment and administration efforts to increase social media censorship of mostly right-wing posts, Andrew reports that the FBI has resumed its outreach to social media companies, at least where it identifies foreign influence campaigns. Meanwhile, the FDA, which piled on to criticize ivermectin advocates, has withdrawn its dubious and condescending tweets.
Finally, Cristin reports on the spyware agreement sponsored by the United States. It has collected several new supporters. Whether this will reduce spyware installations or simply change the countries that supply the spyware remains to be seen.
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