After hearing concerns from Cryptee, Open Web Advocacy, and others, EU opens a DMA investigation into Apple

5 min read

Hello Everyone,

John here, back in Northern Europe with some updates.

Having followed the concerns raised by Cryptee & Open Web Advocacy, EU's DMA team invited us to a hearing to better understand Apple's anti-competitive behavior and its impact on European companies like Cryptee, the web and everyone around the world.

EU also invited gatekeepers like Apple to answer questions on their compliance plans from stakeholders like Cryptee, Open Web Advocacy, EDRi, and many others (but not from the EU themselves).

So last week I went to Brussels for a 7,5 hour long European Commission hearing to represent Open Web Advocacy and explain how Apple's anti-competitive behavior hurts the web, as well as call out Apple's legal team's BS non-answers to our questions and concerns.

A week after the hearing, EU announced that they opened a DMA investigation into Apple and other big tech companies.

We warmly welcomed and celebrated EU's investigations with cold Belgian kriek beers in our hands, and it is quite telling that the investigation is announced after last week's sessions.

At the hearing, Apple's responses to our questions were just that: responses, rather than answers. See for yourself!

I asked why a user who selects Firefox from the browser choice screen will still see Safari in the 'hot seat' position. (or 'the dock™️' as those work for the Fruit Co. like to call it)

Apple's legal team responded by telling us how customizable the home screen is. But they conveniently forgot to tell us why they continue to give Safari the hot-seat, rather than promote Firefox after the user chose it.

I then asked why there is no centralized system on iOS to change the default browser and noted that each browser's setting page has the option to change the default browser, except for Safari's which does not offer a change default, and asked :

we had thought that Apple would have fixed such a dark pattern prior to the DMA coming into force but in the latest version of iOS, it seems that it is still present. My question is, is Apple planning on addressing these or not?

Again my question was not answered. We are told that millions of people have changed their default browser (we know! choice is good!) and :

we are complying from our perspective with the spirit here. — Apple Legal Team

From our perspective, this is not complying.

This pattern of forgetting the question continued. I noted that Apple's DMA compliance plan includes a Browser Entitlement Contract full of legal traps for competing browsers, effectively making it impossible for competing browser vendors to sign the contract and ship their browser engines on iOS for their EU users.

Will you at least make them minimally viable in the EU by enabling browsers to ship their own engines under a single app ID and rewrite your contract so that they're both reasonable and compliant with the DMA?

Apple's reply was that the changes required under the DMA are "a very massive complicated engineering effort". We don't doubt that; luckily, Apple employs very talented engineers and probably has enough money in the bank to employ a few more.

But after this uplifting tale of Herculean efforts undergone in Cupertino, my questions were still not answered — even after Jan Penfrat from EDRi (for those of you from the U.S., EDRi is the European equivalent of EFF) asked :

Is it admissible that I give my speaking time back to refer to the questions that the colleagues from the Open Web Advocacy had asked about the contracts and the possibility that those are incompatible with DMA, because those haven't been answered at all?
Jan Penfrat from EDRi

Another attendee and I asked whether Apple would abide by the DMA and allow Progressive Web Apps like Cryptee (in Apple parlance, "Home Screen Apps") to use third-party engines.

Amazingly, representatives from Apple forgot that a direct question had been asked 23 seconds ago, merely noting that Home Screen Apps will work "as before" (only with WebKit, so presumably the answer is : "no").

Towards the end of the 7,5 hour session, I noted that Apple's 12 page compliance report was immensely lighter in detail than Microsoft's 421 pages or Google's 271 pages, and asked:

does Apple honestly believe their 12-page document enables third parties like us to comprehensively assess whether they comply with all of the obligations laid down in the DMA?

This at least got an answer:

I think everyone in this room understands what Apple has done to comply with the DMA. So I think we've accomplished our goal there.

Sadly, however, not everyone in the room understood what Apple has done to comply with the DMA, hence the announcement by the European Union that they opened a DMA investigation into Apple and other big tech companies.

Ultimately, of course, our hope is that the investigations don't take 12 months and result in fines.

The better outcome would be for Apple to acknowledge that their initial compliance plans do not come near to meeting the intent of the DMA, and for them to re-think and submit detailed plans, with timings, on how they will provide customers with a fair, genuine browser choice.

We would also like to understand if, how and when Apple intends to fix their ridiculous and clearly non-compliant contractual terms that make it as Mozilla put it "as painful as possible" for browser vendors to port their real browsers to iOS.

This blog post was co-authored by the Open Web Advocacy group, as we've been closely working together since the beginning of this legal drama.

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— John Ozbay

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