Issues & Insights

Antitrust Bill Will Stall Security Improvements

As technology evolves, people across the world are slowly discovering new dangers presented by this evolution. Cyber threats are becoming an increasingly prevalent worry for individuals, businesses, and government institutions. In recent years, we’ve seen a number of federal government agencies infiltrated. A major pipeline was shut down by hackers, sparking a run on gasoline and gas lines up and down the East Coast. A recent study showed ransomware attacks on hospitals are up 94% from last year. Cybersecurity is now a crucial part of life and our society must adapt to the new reality in the technological age.

Among those most primed to adapt to meet these new challenges are big tech companies. As part of this, Apple recently rolled out its new “Lockdown Mode” feature for its products. Lockdown Mode is an extreme measure that can aggressively block certain connections and software when switched on. With many of the aforementioned threats becoming more sophisticated over time, features like these will become more and more necessary.

Part of this stems from a November lawsuit Apple filed against NSO Group. Apple sought to ban NSO from accessing its devices, software, and its services. Apple claimed NSO purposefully infected Apple products with its own spyware. While tech companies can be proactive like this to keep malicious actors off their devices, it is important that they have backups like Lockdown Mode to further protect consumers.

Unfortunately, there are a number of lawmakers in Washington who want to stand in the way of these efforts, rather than supporting them. The deceptively named American Innovation and Choice Online (AICO) Act is currently awaiting a vote on the Senate floor. This bill would make it presumptively illegal for tech companies to show favoritism toward their own products and services and severely limit the ability of these companies to block third-party software from their devices. 

Let’s look at how the legislation may have impacted Apple’s dispute with NSO Group. Under the legal regime created by AICO, should it become law, the burden of proof would be on Apple to prove that NSO Group was a malicious actor. Tech companies would have to ask for permission from the Federal Trade Commission to safeguard their consumers from spyware. Otherwise, they will be open to frivolous lawsuits and millions in unnecessary costs.

Further, Apple might be open to lawsuits for pre-downloading Lockdown Mode onto its devices in the future. AICO’s text suggests this too might qualify as an “anticompetitive” business practice. This could be showing preference to its Lockdown Mode as opposed to leaving no cybersecurity software on devices and letting consumers download their own. Given the functionality of iOS, this would be a nightmare. Once again, companies such as Apple would have to ask for permission to secure their devices and their customers, at risk of coming before a government antitrust tribunal.

National cybersecurity experts have publicly expressed their concerns about AICO and what it would mean for the future. However, AICO’s primary sponsor, Sen. Amy Klobuchar (D-Minn.), rushed the bill through committee without a single hearing or any witness testimony. The bill’s passage through committee came only with a vague promise to address the cybersecurity concerns with amendments prior to consideration by the full Senate. Klobuchar is now vigorously calling for a vote – insisting she has the support necessary for passage – yet those cybersecurity concerns remain unaddressed.

The truth of the matter is that tech companies stand well-equipped to address the challenges of the technological age. They are able to develop programs such as Lockdown Mode to ensure the myriad data points their consumers store on their devices remain out of the hands of malicious actors both here and abroad. They have the weapons in their armory to combat these threats.

However, legislation like AICO would forcibly disarm them with an approach that is far too broad in the name of protecting competition. Though tech products might seem to be a staple of American everyday life, there are still many unknowns as we progress further into the future. Callously limiting the ability of these companies to protect themselves and the American families who trust them will have severe consequences, some of which we probably cannot yet comprehend.

Dan Savickas is the director of tech policy at the Taxpayers Protection Alliance.

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