Two of the world’s largest companies, Apple and Facebook, are in the midst of a vicious, public “war” over Apple’s new privacy feature, Apple Tracking Transparency (“ATT”), featured in iOS 14. This war is over the personal data of millions of Apple users and whether companies, like Facebook, should be allowed to track user data as effortlessly as they currently do.[1] The goal of ATT is to provide users with more autonomy over which companies can track their data, by prompting users to disable apps from tracking their data if they so choose.[2] Facebook has become one of the world’s largest companies due to its ability to gather large quantities of user data and auction it off to advertisers.[3] ATT poses a major threat to Facebook’s business, and Facebook has retaliated against Apple through marketing campaigns in attempts to stop the feature’s implementation.[4]
Apple Tracking Transparency (ATT)
The Apple Tracking Transparency feature will make all tracking across apps and websites on Apple devices, ‘opt-in’ only.[5] Thus, by default, Apple users have “opted out” of tracking, and not until they ‘opt in’ are these applications allowed to track their data.[6] This feature precludes companies, like Facebook, from automatically tracking user data, by gathering information on app use and user location.[7] These companies collect this information using “ID for Advertisers,” also known as IDFA.[8] This data is then sold to advertisers, who then use this information to create personalized and targeted advertisements.[9] To counter this ability to easily utilize IDFAs and to promote user awareness, Apple’s iOS 14 includes a series of important features intended to help users make informed decisions about their data.[10] For example, one privacy feature that Apple has already implemented places an orange or green dot on users’ iPhone screens, next to their camera, notifying them when an app is using their camera or microphone.[11]
The opt-out feature will provide users with more autonomy over apps’ and websites’ ability to collect and utilize their personal information to create target-specific advertisements.[12] Apple announced that “[ATT] will require apps to get the user’s permission before tracking their data across apps or websites owned by other companies.”[13] More specifically, under settings on Apple devices, users will be able to see which apps have requested permission to track their personal information.[14] Simultaneously, users will receive a notification that says, “[app]would like permission to track you across apps and websites owned by other companies. Your data will be used to deliver personalized ads to you.”[15] The feature then prompts users to “allow tracking,” by opting-in, or “ask app not to track,” by opting-out.[16]
Additionally, in furtherance of its privacy mission, Apple will now require app developers to provide simple and easy-to-understand descriptions as to what user data they are tracking and how that data will be used.[17] Apple also recently added a nutrition-label style feature in its App Store, which outlines exactly what data third-parties collect from users, to keep users informed on how their data is being tracked and used.[18]
Apple’s Position – Privacy is a Fundamental Human Right
Apple’s goal in implementing ATT is to “raise awareness about the importance of protecting people’s personal information online.”[19] Apple’s Senior Vice President of Software Engineering stated that “[p]rivacy means peace of mind, it means security, and it means you’re in the driver’s seat when it comes to your own data . . we believe privacy is a fundamental human right.”[20]
Apple’s CEO, Tim Cook, took to Twitter to address the privacy changes, tweeting: “We believe users should have the choice over the data that is being collected about them and how it’s used. Facebook can continue to track users across apps and websites as before, [ATT] in iOS 14 will just require that they ask for your permission first.”[21] Moreover, an Apple spokesperson addressed the rationale behind ATT, explaining that “[u]sers should know when their data is being collected and shared across other apps and websites – and they should have the choice to allow that or not.”[22]
Apple has been extremely outspoken in its criticisms of Facebook and its retaliation against ATT. According to Apple’s head of privacy, Jane Horvath, “Facebook executives have made clear their intent to collect as much data as possible across both first and third-party products to develop and monetize detailed profiles of their users, and this disregard for user privacy continues to expand to include more of their products.”[23] In response to Facebook’s allegations that ATT will negatively impact small businesses, Apple has announced that they will be reducing its App Store revenue cut from 30% to 15% for developers that generate up to $1 million per year.[24] Further, Apple delayed ATT’s start-date “to give developers the time they indicated they needed to properly update their systems and data practices.”[25] In light of these actions, many have criticized Facebook’s position of claiming ATT would negatively affect small businesses as purely self-serving.[26] This criticism is supported by a recent study that revealed that “55% of people surveyed said they would not let Facebook track them across apps if they were prompted.”[27] Moreover, independent sources predict that the iOS 14 update will result in a 7% decrease in Facebook’s revenue.”[28]
Facebook’s Position – ATT Will Severely Harm Small Businesses
In its opposition to ATT and Apple’s new privacy changes, Facebook contends that Apple’s App Store fees and iOS changes will hurt small businesses’ ability to recover from the pandemic.[29] Facebook commented, “[w]hile limiting how personalized ads can be used does impact larger companies like us, these changes will be devasting to small businesses.”[30] Facebook argues that Apple’s iOS update will make it harder for small businesses to reach their target audience, which will limit their growth and ability to compete with big companies, as 44% of small businesses turned to personalized ads to adapt to the hardships brought by the pandemic.[31] Facebook’s argument rests on the estimation that ads that disregard personalized targeting generate 60% fewer sales than ads that target customers, which will inevitably destroy small businesses.[32]
In its efforts to fight back against Apple, Facebook has published full-page ads in several newspapers.[33] Facebook’s recent ad in the Wall Street Journal carried the headline: “We’re standing up to Apple for small businesses everywhere.”[34] To complement the newspaper campaigns, Facebook also created a website where small business owners have a place to speak their mind about how Apple’s planned changes would negatively affect their businesses by halting their ability to reach specific customers.[35] Monique Wilsondebriano, co-owner of Charleston Gourmet Burger Company, took to Facebook’s platform to explain how Apple’s privacy change would devastate small businesses like hers.[36] Wilsondebriano said, “[t]here is no possible way that our company could have reached the level of success that it has today without personalized ads.”[37] She further stated: “The update from Apple would be devasting to a business like mine. Why? Because big businesses are going to be able to deviate and to run a television ad…small businesses, we’re not going to be able to do that. We don’t have those big marketing budgets like the big guys do.” [38] Hrag Kalebjian, owner of Henry’s House of Coffee, also voiced his opinion on how Apple’s new update will affect his business.[39] Kalebjian explained, “[w]e’re just trying to survive…these personalized ads on Facebook work really well and now it’s going to cost us more.”[40]
Additionally, Facebook is considering filing an antitrust lawsuit against Apple.[41] Facebook alleges that Apple is behaving in an anti-competitive manner by “using their control of the App Store to benefit their bottom line at the expense of app developers and small businesses.”[42] Mark Zuckerberg, Facebook’s CEO, explained: “Apple has every incentive to use their dominant platform position to interfere with how our apps and other apps work, which they regularly do to preference their own.”[43] Facebook’s main grievances against Apple is that Apple allegedly sets arbitrary rules for its own developers and do not require its own apps to follow the different rules it sets for others.”[44]
Moreover, in attempts to diminish the impact ATT will cause its business, Facebook plans to create a pop-up message of its own.[45] Facebook’s pop-up message will explain to users that advertising will lead to a better experience on Facebook, while simultaneously supporting businesses that rely on these targeted ads for sales.[46] Facebook is currently testing a pop-up message, which depicts a drawing of a woman on her cellphone, with a cup of tea and vase of flowers, who pleads for users to allow their “app and website activity” to be used to “support businesses” and “get ads that are more personalized.”[47]
Impact on the Big Tech Industry
This battle between Facebook and Apple will inevitably lead to a major change in the tech industry’s ability to exploit individual privacy.[48] This battle reveals just how much control over user privacy these two Silicon Valley really giants have. Over the past few years, federal lawmakers have attempted to pass data privacy bills, but none have proven successful.[49] Thus, as explained by a NY Times journalist, “[w]ithout any meaningful federal privacy laws, it has been left to the companies themselves to determine how customers’ data should be handled, which has led to today’s enormous and self-serving, personal-data collection regimes.”[50] Ultimately, it is popularly believed that Apple’s new privacy changes will change the internet as we know it.[51]
Cybersecurity specialist at ESET, a global provider of security software, Jack Moore, explained that “[i]ntrusive tracking is a grey area but when Apple decides to lead the pack, others tend to follow suit.”[52] Apple’s ATT and other iOS 14 privacy features have gained major support from privacy advocates internationally.[53] A group of advocacy organizations sent a letter to Apple explaining, “Apple is uniquely positioned to protect users from invasion of privacy by other companies, and consequently by governments that access corporate data through extra-legal channels.”[54] Moreover, these advocates are pleased that users will be required to opt-in to app tracking “on an app-by-app basis.”[55] In response to Apple’s delay in the implementation of ATT, which resulted from Facebook’s public resistance, the advocates encouraged Apple not to back down, since “[b]usiness models of other companies rely on nonconsensual data collection, Apple should stand up for its users’ right to privacy.”[56]
Conclusion
Apple’s ATT feature is sparking a systemic change in the tech industry, whereby tech companies will be forced to respect user privacy by altering the way they advertise.[57] Despite this momentum towards greater protection of user privacy, the question still remains whether large companies, like Facebook and Google, will develop ways to bypass Apple’s iOS 14 changes or accept this major change in information gathering throughout the industry. Google recently announced that it will stop using the IDFA to avoid the opt-out message popping up on users’ iPhones.[58] Although, this may seem as though Google is attempting to bypass the new iOS feature, in reality, it demonstrates that Apple is already winning this privacy battle, as Google will no longer be using IDFA to track user data. It is clear that Apple’s stance is not wavering, and the ATT feature will be implemented this Spring. It therefore seems counterintuitive for Facebook to highlight the intrusive ways in which it accesses user information, as it will only encourage more users to opt out of Facebook’s ability to track them. It will be interesting to see whether Facebook moves forward with its lawsuit against Apple, or whether it will succumb to these privacy changes, as the tech industry shifts towards a more aggressive approach of protecting user privacy.
[1] Bobby Allyn, Why is Facebook Launching An All-Out War on Apple’s Upcoming iPhone Update?, NPR (Feb. 26, 2021, 5:01 AM), https://www.npr.org/2021/02/26/971367875/why-is-facebook-launching-an-all-out-war-on-apples-upcoming-iphone-update.
[2] Steve Kovach, Facebook-Apple Skirmish is the Latest in a Fight that Stretches Back More than a Decade, CNBC (Dec. 23, 2020, 12:21 PM), https://www.cnbc.com/2020/12/23/facebook-vs-apple-ten-year-war-over-internet-business.html.
[3] Greg Bensinger, Goliath vs. Goliath, N.Y. Times (Dec. 19, 2020), https://www.nytimes.com/2020/12/19/opinion/facebook-apple-privacy.html.
[4] See id.
[5] Kate O’Flaherty, iOS 14: Apple Issues Facebook Blow with Bold New iPhone Privacy Feature, Forbes (Nov. 22, 2020, 5:19 AM), https://www.forbes.com/sites/kateoflahertyuk/2020/11/22/ios-14-apple-confirms-bold-new-iphone-privacy-feature-for-2021/?sh=69af40597c20.
[6] See id.
[7] See Allyn, supra note 1.
[8] Reed Albergotti, On iPhones, Facebook and Apple Begin War of Pop-up Messages, Wash. Post (Nov. 22, 2020, 5:19 AM), https://www.washingtonpost.com/technology/2021/02/01/apple-idfa-prompt-facebook-message-tracking/.
[9] See Allyn, supra note 1.
[10] Press Release, Apple, Data Privacy Day at Apple: Improving transparency and empowering users (Jan. 27, 2021),
https://www.apple.com/newsroom/2021/01/data-privacy-day-at-apple-improving-transparency-and-empowering-users/ [hereinafter Apple Press Release].
[11] See O’Flaherty, supra note 5.
[12] Kate O’Flaherty, Apple’s Stunning iOS 14 Privacy Move: A Game-Changer For All iPhone Users, Forbes (Jan. 31, 2021, 3:59 AM), https://www.forbes.com/sites/kateoflahertyuk/2021/01/31/apples-stunning-ios-14-privacy-move-a-game-changer-for-all-iphone-users/?sh=727efc907e8d.
[13] Id.
[14] See Apple Press Release, supra note 10.
[15] See, O’Flaherty, supra note 12.
[16] See id.
[17] See Bensinger, supra note 3.
[18] Kurt Wagner & Mark Gurman, Facebook Attacks Apple Software in Newspaper Ads, Bloomberg (Dec. 16, 2020, 4:00 AM), https://www.bloomberg.com/news/articles/2020-12-16/facebook-attacks-apple-s-ios-changes-in-full-page-newspaper-ads.
[19] See Apple Press Release, supra note 10.
[20] Id.
[21]@tim_cook, Twitter (Dec. 17, 2020, 6:54 PM), https://twitter.com/tim_cook/status/1339720611313065984.
[22] See Wagner & Gurman, supra note 18.
[23] Id.
[24] Id.
[25] See O’Flaherty, supra note 5.
[26] See Allyn, supra note 1.
[27] Id.
[28] Id.
[29] See Wagner & Gurman, supra note 18.
[30] Id.
[31] Speak Up for Small Business, Facebook for Bus., https://www.facebook.com/business/apple-ios-14-speak-up-for-small-business (last visited March 14, 2021).
[32] See Wagner & Gurman, supra note 18.
[33] Id.
[34] Id.
[35] See Speak Up for Small Business, supra note 31.
[36] See id. (referring to testimonials made by small business owners about Apple’s new privacy changes).
[37] Id.
[38] Id.
[39] See id.
[40] Id.
[41] David Pierce, Apple vs. Facebook: The Trillion-dollar privacy wars, protocol (Jan. 29, 2021),
https://www.protocol.com/apple-facebook-privacy-fight.
[42] Id.
[43] Id.
[44] Id.
[45] Kurt Wagner & Mark Gurman, The Privacy Spat Between Facebook and Apple Is Just the Beginning, Bloomberg (Feb. 3, 2021, 7:00 AM), https://www.bloomberg.com/news/articles/2021-02-03/apple-aapl-facebook-fb-s-privacy-battle-is-just-getting-started.
[46] See id.
[47] See Albergotti, supra note 8.
[48] See Pierce, supra note 41.
[49] See Bensinger, supra note 3.
[50] Id.
[51] Tom Warren, Facebook Hits Back at Apple with Second Critical Newspaper Ad, The Verge (Dec. 17, 2020, 4:00 AM), https://www.theverge.com/2020/12/17/22180102/facebook-new-newspaper-ad-apple-ios-14-privacy-prompt.
[52] See O’Flaherty, supra note 5.
[53] See Apple Press Release, supra note 10.
[54] Letter from Access Now et al., to Tim Cook, Apple CEO, https://rankingdigitalrights.org/wp-content/uploads/2020/10/Ranking-Digital-Rights-Joint-Letter-to-Apple-iOS14-delay.pdf.
[55] Id.
[56] Id.
[57] See Apple Press Release, supra note 10.
[58] See O’Flaherty, supra note 12.
