• by Wendy Davis  @wendyndavis, December 10, 2022

An antitrust bill that would restrict how Apple and Google operate app marketplaces could also be “weaponized against content moderation,” a coalition of organizations and law professors told Senate leaders Friday.

The Open App Markets Act (S.2710), sponsored by Senators Richard Blumenthal (D-Connecticut) and Marsha Blackburn (R-Tennessee), is mainly known for a provision that would require large app marketplaces to allow smartphone users to “sideload” apps -- meaning to download them from outside sources.

Google already allows sideloading, but Apple does not.

But the bill also includes a provision that prohibits app store operators from “unreasonably” preferencing their own apps, or the apps of their business partners, including by ranking those apps higher in the store's search results. The bill does not define "business partner," and critics say the term will likely be interpreted to apps that pay commissions to the platforms on in-app purchases.

The bill's backers are attempting to force a full Senate vote by the end of the year.

Proponents, including some consumer watchdogs, are also pressing for a Senate vote.

But critics of the bill -- including the libertarian group TechFreedom, digital rights organization Center for Democracy & Technology and the National Coalition Against Censorship -- contend that the ban on preferencing, at least as currently worded, could pave the way for developers to sue over Google's and Apple's content-related decisions.

“Any app developer might challenge where their apps appear in other search results,” the groups said in a letter sent Friday to Senate leaders. “Suits could be brought by an endless range of other developers whose apps are 'downranked' for essentially editorial reasons.”

The organizations add that just the threat of lawsuits could prompt app stores to remove controversial apps altogether, instead of merely downgrading them in the search results.

“If carrying such apps will result in continuous litigation over exactly where those apps appear in search results, app stores may be incentivized to simply exclude them altogether,” the advocacy groups write.