Apple Argues to Congress It Isn’t Anti-Competitive. Antitrust Experts, However, Aren’t So Certain

The U.S. House of Representatives’ Judiciary Committee had questions for Apple. Lots of questions—about Apple’s corporate policies on everything from iPhone to the company’s practice of locking users into its software, making it difficult for alternative services to compete.

In the company response, published Tuesday alongside responses from Amazon, Google, and Facebook, Apple Vice President of Corporate Law Kyle Andeer argued that the company acts in the best interest of its users, has plenty of competition, and perhaps most importantly, doesn’t engage in anti-competitive behaviors.

In one question, for instance, the committee asked Apple why it doesn’t allow iOS users to assign a third-party browser as their default choice.

“Safari is one of the apps that Apple believes defines the core user experience on iOS, with industry-leading security and privacy features,” Andeer wrote. He used the same “security and privacy” justification to explain why Apple forces competing browsers, including Chrome and Firefox, to use a WebKit framework to power their browsers on iOS instead of their own underlying engines.

When pressed on how Apple handles competitors across its iOS ecosystem, the company offered a laundry list of third-party apps, available to iPhone users only through the company’s own App Store, that competes with its own built-in iOS programs.

“We have worked with many of these companies for years to help make them a success,” Andeer wrote.

The questions are part of a broader investigation by the Judiciary Committee that seeks to determine whether Apple and other tech heavyweights have abused their positions of power to keep competition at bay. The claims have nipped at Apple for years, despite the company’s repeated claims that it has not engaged in antitrust practices. Apple did not respond to a Fortune request for comment.

Antitrust experts don’t think Apple’s responses to the committee’s questions will hold up under scrutiny.

“Apple walks a fine line between offering customers an ‘integrated, safe and seamless experience’ and creating a ‘walled garden’ that keeps customers locked into the Apple ecosystem,” antitrust expert and Northwestern University professor Mohan Sawhney says. “I believe that some of Apple’s tactics are anti-competitive, such as not being able to change the defaults for built-in applications like the Safari browser or the messaging application.”

“They set the rules of engagement”

Christopher Sagers, antitrust expert and law professor at the Cleveland-Marshall College of Law, also thinks Apple engages in behaviors that hurt competition.

“Its stance towards its developers has been aggressive, very heavy-handed, and sometimes (as in the case of its well-documented ‘Sherlocking’), positively abusive,” Sagers says.

Sherlocking is a practice in which Apple develops a clone of a third-party app, often sending the original product into freefall.

Still, Apple is quick to note that it has plenty of competitors, all doing well in the highly competitive software market. But Sawnhey argues that in order to get access to the one billion potential customers who use iOS, third-party developers still need to play by Apple’s rules.

“They set the rules of engagement,” he says.

Even so, it’s not an open and shut case on declaring Apple in violation of antitrust laws.

Mark McCareins, the co-director and clinical professor at the J.L. Kellogg Graduate School of Management at Northwestern University, says monopolistic activities are complex, making any blanket statement on a company’s alleged activities impossible to make. And he believes Apple knows that.

“If a firm is attempting to compete with a monopolist and cannot survive because the monopolist has built a better mousetrap, the firm’s exit is not an antitrust violation,” McCareins says. “Even monopolists are permitted under recognized law to compete and win competitive battles with ‘superior skill and business acumen.'”

But a line is drawn when the purported monopolist competes in an “exclusionary” manner, McCareins says, adding that the justifications offered by Apple to date—web safety, privacy, and cyber security—are developed with this principle in mind.

McCareins acknowledges that antitrust theories can be applied to Apple’s business practices, but cautions that actually proving Apple is engaging in antitrust behavior hinges on “the application of complex legal and economic analysis to particularized markets.”

Sagers has, perhaps, has the most sobering view—not only of big tech’s activities, but also those of business in general. Right or wrong, good or bad, Sagers says, Apple is in no way unique.

“I don’t think Apple is Public Enemy Number 1, and I don’t think it is uniquely evil or bad,” he says. “I think that its attitude toward its users is precisely the same as that of every other business.”

“It is to some degree adversarial,” he says, “and that is the nature of commerce.”

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