Poland latest to probe Apple’s app tracking transparency shift — over self-preferencing concerns

Poland’s competition watchdog is the latest to investigate Apple over policy changes to its mobile platform that impact how third party apps can track iOS users by requiring they request permission before they can grab data.

The country’s Office of Competition and Consumer Protection (UOKiK) said today that it’s opened an investigation into changes to how Apple’s mobile platform operates in relation to the App Tracking Transparency (ATT) feature that requires app developers to ask iOS users for permission to track them for ad-targeting.

Apple has been contacted for comment.

The tech giant announced ATT back in summer last year — launching it, after some delay and ongoing advertiser objections, with iOS 14.5 earlier this year.

“In practice, this means that Apple has significantly reduced the ability of third-party apps to obtain personal data on iOS in order to send personalised ads,” the UOKiK writes in a press announcement of the probe. “However, this does not mean that users’ information is no longer being collected and that they do not receive personalised ads. At the same time, doubts have arisen as to whether the rules established by Apple were not designed to promote their own advertising service, Apple Search Ads, which could be a violation of competition principles.”

“The actions of digital giants are a challenge for antitrust authorities all around the world,” added Tomasz Chróstny, the president of UOKiK, in a statement. “During the course of our investigation, we want to examine whether Apple’s actions may be aimed at eliminating competitors in the market for personalised advertising services, the objective being to better sell their own service. We will investigate whether this is a case of exclusionary abuse of market power.”

France’s competition watchdog already took at look at ATT, following advertiser complaints.

However, earlier this year, France’s Autorité de la concurrence declined to block Apple’s launch of ATT — saying, back in March, that it did not consider the introduction of the feature to be an abuse of a dominant position.

Although the Autorité said it would continue investigating the policy change — specifically saying it wanted to check whether Apple was applying less restrictive rules for its own apps vs third party developers’ ads (which appears to be a key part of the concern driving UOKiK’s probe).

Cupertino has been accused of hypocrisy by advertisers who pointed to earlier defaults on iOS opting users into Apple’s own tracking-based ads vs the new requirement that third parties must ask for permission.

Back in October, the FT also reported that the switch had created what it described as “a windfall” for Apple, suggesting the company’s advertising business has more than tripled its market share in the six months after it introduced the changes that obstructed rivals from targeting ads at users. (Although it’s worth noting that Apple’s Search Ads comprise only a tiny fraction of the entire mobile ad market so 3x of a tiny amount is still very small beer.)

Also noteworthy: In iOS 15, Apple quietly changed its earlier default that had opted iOS users into receiving its own personalized ads, as 9to5Mac reported in September — when it started prompting users for their consent to its ad targeting, bringing it more in line with its policy mandate that third parties must request user permission to track.

Although — again important to note — iOS users have always been able to switch off tracking for Apple’s ads via their device settings, unlike some third party apps (like Facebook) that offer users no choice over ad tracking at all.

Perhaps the most interesting element of the Polish investigation is — therefore — not the question of whether Apple is playing fair but its observation that ATT “does not mean that users’ information is no longer being collected and that they do not receive personalised ads”. Although the probe sounds more narrowly focused on whether or not Apple is self-preferencing. (We’ve reached out to the UOKiK with questions about its investigation and will update this report if the regulator responds.)

A study of ATT’s “effectiveness” at stopping third party tracking, carried out by an ad blocker called Lockdown Privacy and published this fall, questioned whether the feature creates merely “an illusion of privacy”, given the researchers found no difference in the total number of active third-party trackers; and what they described as “a minimal impact” on the total number of third-party tracking connection attempts.

“We further confirmed that detailed personal or device data was being sent to trackers in almost all cases,” the study also concluded.

Whether increased transparency should lead to a reduction of tracking scripts — and therefore whether that’s a good way to measure ATT’s “efficiency” — is one question to ponder.

Another is how the market may be shifting in response to platform flexes like ATT — or, well, pretending to shift.

Last week, another report in the FT suggested Apple might have reached what the newspaper described as a “quiet truce” with advertisers — claiming it was loosely interpreting the ATT policy to continue to allow third parties to collect reams of personal data, so long as the data they gobbled up is “anonymised and aggregated rather than tied to specific user profiles”.

Thing is, the adtech industry has a long history of making bogus claims of anonymization. While an unholy host of faceless adtech entities have spawned proliferated in the space by trading and syncing data with each other — exactly to undermine people’s privacy and their ability to protect themselves from being tracked by re-identifying individuals so they can continue building profiles to target with ads.

So whether suggestions by a handful of major advertisers cited in the FT article — including Snap and Facebook — that they’re shifting their ad targeting efforts to ‘cohort’-based advertising would survive careful scrutiny of what actually gets done with any in-flows of “aggregated” iOS user data remains to be seen. (And may indeed require regulatory oversight — such as through legislative proposals like Europe’s Digital Services Act and Digital Markets Act — actually doing the due diligence.)

Ad giant Google has also — in recent years — been pressing for the industry to switch to cohort-based targeting — which it claims is better for privacy, even as the suggested ‘federated learning of cohorts’ tech would do nothing to prevent vulnerable groups being selected for targeted manipulation. (Indeed, some critics of its Privacy Sandbox proposal suggest it will actually make predatory targeting worse.)

In the UK, Google’s self-styled “Privacy Sandbox” plan has attracted close regulatory interest.

It is currently being overseen by the UK’s competition watchdog — which has said it wants to ensure that the market-shifting changes are implemented in a way that’s both fair to advertisers and Google competitors and not terrible for user privacy (although oversight of the latter piece is handed off to the UK’s ICO, which has a reputation for roundly failing to enforce against any of the adtech industry’s myriad privacy breaches, so… ).

All of this is to say that the (power) balancing act is real. But also that regional regulation is far more muscular on the antitrust side than it has ever been in standing up for privacy and data protection — which risks an unbalanced outcome where adtech vs privacy is concerned. So the stakes for users remain eye-wateringly high.

The European Union, meanwhile, has been a bit of a bystander on this front.

It has its own active antitrust case ongoing against Apple — related to rules it applies to its App Store. However the Commission’s complaint is narrowly focused on the music streaming market, so only on concerns that Apple is potentially distorting competition in that specific segment.

The EU’s antitrust division has its eye on Apple Pay too — but, so far, the Commission hasn’t taken action in relation to ATT — which leaves national competition regulators across the bloc, such as Poland’s UOKiK and France’s Autorité de la concurrence free to pursue probes if they believe concern is merited.

The Commission did finally open a formal probe of Google’s adtech this summer — which includes scrutiny of its Sandbox proposal. But it’s fair to say the EU’s executive has lagged behind on adtech scrutiny and interventions. (As have national data protection regulators.)

So a lack of joined up thinking at a national level — between Europe’s competition enforcers and privacy regulators — could risk putting chilling limits on even the (limited) pro-privacy changes that a powerful platform-operating company like Apple can bring in.

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