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Because they’re trying to solve a class of problems and targeting individual companies with draconian requirements isn’t procedural and on the surface is puniti

Because they’re trying to solve a class of problems and targeting individual companies with draconian requirements isn’t procedural and on the surface is punitive with no regulatory or legal reason. The regulation creates the context to specify something like this. Writing ad hoc rules for named entities without a law or regulation behind it isn’t how our system of governance works. You first have to have a framework to judge against, either in law or regulation. You then assess the compliance of each in scope entity and issue findings. Btw the term “malicious compliance” isn’t really a thing. The right term is “willful noncompliance.” For this they need to prove intent to be a defensible finding, which they probably could. However it would be easier to just find them in non-compliance. I would also note this is a back and forth. What surprises me is Apple went public with their plans rather than developing them directly with the regulators. Going public with their plan creates all sorts of problems for Apple. This is surprising because Apple is a pretty sophisticated regulatory player. For all their devices they go through many regulatory processes and regimes. They have tons of experience dealing with regulators across many regions and regulatory domains, including these sorts of policies. This is a shocking lack of cooperative behavior that won’t work for Apple. Apple is flush with cash, but governments have unlimited resources and the ability for forcibly enforce their will. It’s usually smart money to invest in appeasing your regulators in private.

jacobsimon 3y ago
Yeah I see what you mean, I just think these regulatory frameworks are themselves somewhat draconian, indirect, and lead to obnoxious and bad user experiences despite their good intentions, like cookie consent popups. Obviously my opinion doesn’t matter, but wouldn’t it be easier if the EU simply said, “We have the power to regulate commerce in the EU, including software marketplaces. We have decided X.” That would be pretty similar to how many governments set maximum credit card interest rates (as someone mentioned below) as well as other transaction fees in industries that are vulnerable to cartel-like behavior like real estate.
- jacobsimon 3y ago
  In fact, I’m almost convinced that this regulatory framework was suggested by Apple themselves, because it doesn’t really accomplish anything. No one wanted to use third party app stores, they just want Apple to stop charging them so much. It’s fundamentally a payment processing issue, and they’ve spun it into a user freedom issue.
  - fnordpiglet 3y ago
    It’s always a cat and mouse thing but being overly obtuse runs the risk of irritating the regulator. The reality is there’s a clear intention and spirit behind the regulation. It’s also purposefully vague to capture more than this one case and allow for creative compliance that meets the spirit. Often regulators fail to grok the specific details of a business and the point isn’t to crush companies it’s to elicit a behavior. But being evasive or a general asshat with a regulator leaves you open to the fact it was vague and the judge of compliance isn’t you, it’s the regulator. And if you’re too far in the wrong direction criminal consequences can kick in. Creating ill will makes all future interactions worse. So it’s really in your best interest to engage constructively with your regulators to achieve a best outcome possible. There are exceptions - Uber has made willful non compliance a business model requiring that TLC regulation is pretty toothless. I don’t think Apple will find a similar situation here.

jacobsimon 3y ago

Yeah I see what you mean, I just think these regulatory frameworks are themselves somewhat draconian, indirect, and lead to obnoxious and bad user experiences despite their good intentions, like cookie consent popups. Obviously my opinion doesn’t matter, but wouldn’t it be easier if the EU simply said, “We have the power to regulate commerce in the EU, including software marketplaces. We have decided X.” That would be pretty similar to how many governments set maximum credit card interest rates (as someone mentioned below) as well as other transaction fees in industries that are vulnerable to cartel-like behavior like real estate.

jacobsimon 3y ago
In fact, I’m almost convinced that this regulatory framework was suggested by Apple themselves, because it doesn’t really accomplish anything. No one wanted to use third party app stores, they just want Apple to stop charging them so much. It’s fundamentally a payment processing issue, and they’ve spun it into a user freedom issue.
- fnordpiglet 3y ago
  It’s always a cat and mouse thing but being overly obtuse runs the risk of irritating the regulator. The reality is there’s a clear intention and spirit behind the regulation. It’s also purposefully vague to capture more than this one case and allow for creative compliance that meets the spirit. Often regulators fail to grok the specific details of a business and the point isn’t to crush companies it’s to elicit a behavior. But being evasive or a general asshat with a regulator leaves you open to the fact it was vague and the judge of compliance isn’t you, it’s the regulator. And if you’re too far in the wrong direction criminal consequences can kick in. Creating ill will makes all future interactions worse. So it’s really in your best interest to engage constructively with your regulators to achieve a best outcome possible. There are exceptions - Uber has made willful non compliance a business model requiring that TLC regulation is pretty toothless. I don’t think Apple will find a similar situation here.