• by Wendy Davis , Staff Writer @wendyndavis, February 25, 2021

Federal regulators should be empowered to block Apple from moving forward with a plan to require developers to obtain consumers' permission before tracking them across apps, a critic of the company told Congress Thursday.

“Apple’s conduct violates current antitrust law and threatens to inflict irreparable harm on millions of everyday Americans,” antitrust attorney John Thorne argued in his prepared statement. 

He added that Congress should enable antitrust authorities to force Apple to delay its plans, pending an investigation.

Thorne's complaint centers on iPhones' and iPads' “Identifier for Advertisers” -- an alphanumeric string that mobile ad companies use to track Apple consumers across different apps for ad-targeting purposes.

Starting this spring, Apple will only allow developers to access that identifier if consumers explicitly consent.

Thorne argues the new policy is anticompetitive, because Apple will be able to advertise to users based on data about them on an opt-out basis.

Apple has consistently said it doesn't serve ads to people based on data collected through the identifier for advertisers. 

A broad coalition of well-known advocacy groups -- including Amnesty International, the Electronic Frontier Foundation and New America’s Open Technology Institute -- support Apple's planned setting.

“As Apple knows well, the widespread practice of tracking technology users’ online activity without their informed consent violates the fundamental human right to privacy,” the watchdogs said last year in a letter urging the company to move forward with the new settings.

Not surprisingly, the ad industry opposes Apple's new approach, and has suggested it will push for regulations that would prohibit the company from implementing an opt-in regime for tracking.

Thorne -- a partner in the Washington, D.C. law firm Kellogg, Hansen, Todd, Figel & Frederick, which is defending Facebook in an antitrust lawsuit brought by the Federal Trade Commission -- insisted to Congress on Thursday that the settings are problematic for numerous reasons. Among others, Thorne says Apple will require developers “to display a scary, false warning” when seeking consent.

“The goal is to mislead users into withholding consent, not to encourage a fully informed decision,” he stated.

The "scary" language Thorne referenced tells users that a developer would like permission to track them.

Thorne didn't mention this in his written testimony, but Apple's permissions screen also has room for developers to explain why they would like to track people. The company also lets developers show users additional information before presenting them with the permission screen. Earlier this month, Facebook began doing so by showing people a screen stating that tracking will result in “ads that are more personalized” and will also “support businesses that rely on ads to reach their customers.”

Apple critics' appeal to Congress appears unlikely to succeed, given that the trend throughout the country is towards more restraints on data collection, not fewer. Last November, voters in California approved expanding the state's privacy law by making it harder to use data about race, ethnicity, health, or finances for advertising. And lawmakers in other states, including Oklahoma, have introduced bills that would require all companies to obtain consumers' opt-in consent before using their data for ad targeting.