Thursday, December 31, 2020 [Tweets] [Favorites]

Fired App Reviewer Sues Apple

Pham v. Apple (PDF, via Llyod Chambers):

After plaintiff Pham approved the Guo Media App, the Chinese government contacted defendant Apple and demanded that the Guo Media App be removed from defendant Apple’s App Store. Defendant Apple then performed an internal investigation and identified plaintiff Pham as the App Reviewer who approved the Guo Media App.

In or around late September 2018, shortly after defendant Apple provided plaintiff Pham with the DCP, plaintiff Pham was called to a meeting to discuss the Guo Media App with multiple defendant Apple supervisors and managers. At this meeting, defendant Apple supervisors stated that the Guo Media App is critical of the Chinese government and, therefore, should be removed from the App Store. Plaintiff Pham responded stating the Guo Media App publishes valid claims of corruption against the Chinese government and Chinese Communist Party and, therefore, should not be taken down. Plaintiff Pham further told his supervisors that the Guo Media App does not contain violent content or incite violence; does not violate any of defendant Apple’s policies and procedures regarding Apps; and, therefore, it should remain on the App Store as a matter of free speech.

[…]

Defendant Apple became aware of plaintiff Pham’s criticism and defendant Apple’s managers responded by retaliating against plaintiff Pham and ultimately terminating plaintiff Pham.

The court doesn’t agree that he was harassed but seems to be taking other claims seriously.

See also: Courthouse News, Eugene Volokh.

Tim Hardwick:

Sunday’s NYT report claims that Eddy Cue, Apple’s senior VP for internet software and services, has informed Apple TV+ partners that “the two things we will never do are hard-core nudity and China.”

Previously:

Update (2021-01-01): See also: Hacker News.

20 Comments

Rather sad I have no alternative to choose from. Objectively speaking Apple still has the best laptop and Smartphones.

@Ed that's quite subjective honestly.

Eddy, my office, now!

FormerAppleUser

@Ed, the reason for many problems is that we think we always need the "best". There is also "good enough".

“The court doesn’t agree that he was harassed but seems to be taking other claims seriously.”

Well, no. The court is merely saying there are sufficient grounds, or doubt, to proceed to the next stage of the suit. Discovery will shake out all the evidence, after which the actual trial will determine whether or not Apple actually stepped on Pham’s protected rights. I suspect at that point Pham will lose, as it sounds like he was allowing his personal beliefs to interfere in his professional duties, and being noncompliant and combatative when his superiors tried to correct him.

Yes the CCP is corrupt, yes Apple’s corporate ethics extend only as far as the trailing edge of its revenues, yes Guo Media has a first amendment right to make itself heard. But none of that’s relevant here.

For argument, let’s assume Pham initially approved the app in good faith and according to guidelines, and not in defiance of existing Apple instructions, once management told him the app was not going to be distributed on AppStore, he was free to make his personal objection known just as they were free to dismiss it on professional grounds.

For Pham then to demand his bosses to carry the app anyway “because free speech” is just plain ridiculous, and implies a level of arrogance and ignorance that does not bode well for the man. That’s a common misuse of first amendment arguments which does not apply as Apple is a private entity[1], not the US government. Apple has no legal obligation to act as a carrier for Guo, which is still free to find its own output channels anywhere else. Indeed, it’s Apple’s own 1A right that allows it to choose whether or not to carry the Guo app; the US government cannot make Apple do either.

China’s a sovereign state so gets to make its own rules and apply those rules to its own territories. Therefore, if Apple wants to do business in China it can quietly abide by those rules or it can object to them. While Apple is free to voice its objections to the unreasonableness/unfairness of those rules, China is equally free to ignore those objections; at which point Apple can choose either to abide by China’s rules or to walk away from the whole deal. There is no third choice here, and throwing a tantrum over not getting its own way—which is what Pham most likely did—will only get it laughed at then thrown out the room.

IMO the most interesting thing likely to shake out of this trial is exactly what AppStore Reviewer Guidelines actually say, and how they say it. Like, do they just flat out state “Do not approve apps that are critical of regimes X, Y, and Z?” Or are they more circumspect in their wording? But either way, when the big boss says “Don’t do that”, then you don’t do that (unless not doing it is outright illegal, which this isn’t).

..

The only way Pham might fairly win[2] is if he can show Apple management exceeded their responsibilities and stepped on Pham’s personal rights in the process, e.g. by telling him he cannot voice his political opinions as a private citizen on his own time and equipment. Otherwise he’s just another James Damore, misusing company resources for his own personal soapbox, then squalling like an entitled child when told off for it.

The same should rigorously apply to pharmacists who, say, refuse to fulfill a doctor’s prescriptions for birth control pills because their personal religion objects to birth control. While an employer might wish to make reasonable accommodations, e.g. by allowing that pharmacist to pass the prescription to another to fill, the moment they refuse to fill that prescription outright can and should mean dismissal: because they have demonstrated their unfitness to perform that job.

Your private life is your private life. Your professional life is your employer’s.

If your personal ethics are incompatible with your employer’s (and the employer is not itself in breach of the law), then either suck it up or find yourself another job.

--

[1] Yes, 1A is not absolute and other arguments do creep in when a carrier approaches monopoly status. But that’s not the suit being brought here.

[2] The other way Pham might win, of course, is by finding himself a sympathetic and heavily biased jury and judge. Which does happen depressingly often. In which case it’ll just keep on bouncing the appeals ladder until a sufficiently senior court shuts its down; and the only winners at the end are all the lawyers who are charging by the hour.

@has

IMO the most interesting thing likely to shake out of this trial is exactly what AppStore Reviewer Guidelines actually say, and how they say it. Like, do they just flat out state “Do not approve apps that are critical of regimes X, Y, and Z?” Or are they more circumspect in their wording?

Yes, I expect we’ll find that Pham was correct given the written guidelines, but the trial will show that there are ones unwritten even for app reviewers.

@Ed: Of course you’ve got a choice.

You can choose to buy Android devices instead (although I doubt you’ll find Alphabet to be any more noble than Apple), or you can see who’s trying to launch a soon-to-be-ill-fated Linux smartphone this week and plonk your kickstarter money on that. Or you can choose a simple flip-phone, or even forego electronica entirely.

No, it’s not a great choice, but anyone who wants to do better is free to try. (Just don’t expect mad profits arising because the vast majority of people are cheap and just don’t care that much.)

Apple’s job is to make money, not to politically grandstand. And quite frankly, given how much sway these huge global corporations already hold over our politics and societies, the harder they stay in that lane the better.

@Michael: “Yes, I expect we’ll find that Pham was correct given the written guidelines, but the trial will show that there are ones unwritten even for app reviewers.”

Entirely possible, and I’ll be there with the popcorn as Apple gets its due drubbing over not actually walking the walk it so likes to talk.

But that still won’t make a difference to the case itself. Unless Pham can show his Apple bosses were interfering in his activities as a private citizen, all he’s doing is proving himself an insubordinate ass for any future employers now taking note.

Oh well, never mind, I’m sure Silly Con Valley’s extensive Martinet section will be happy to pull up another seat. Who knows; perhaps Pham and Damore can sing duets together.

@Ed: It's sad that there are so many needless technical barriers to switching. That prevents alternatives from ever forming.

It's no coincidence that every class of platform ends up being a duopoly. Desktop OSs, smartphone OSs, web browsers, messaging systems, social networks, ride sharing services, online marketplaces. It varies somewhat by time and geographic area, but there's always the dominant one, and the de facto alternative one, and a long tail of other companies and open-source projects that fight over the last 5%. Both of the top two are highly incentivized to keep it that way.

Old Unix Geek

@has : "Your private life is your private life. Your professional life is your employer’s."

That's an unbelievably short-sighted and frankly stupid and dogmatic view. If poisoning your children were in your employer's interest, would you just do it or find another job? Apple and Twitter and Facebook and all the rest of them are poisoning democracy. Who needs enemies, when your own corporations has happy to do the job for filthy lucre. The argument doesn't even hold water. It's what the guards at Auschwitz said, and I have a hell of a lot more sympathy for them. Their lives were on the line. They still were punished at Nuremberg: Saying I was just following orders is not enough.

Secondly Apple is not "a carrier". They're a self-appointed monopoly. Hopefully that aspect of their business will be crushed, the way Microsoft's attempts at monopoly were. Apple just wiped out 39,000 game apps to comply with Chinese law. However if Chinese people could side-load apps, they could get around this restriction: is up to individual Chinese citizens to decide whether to obey or ignore Chinese law. That is the third way, and it's how things change for the better in the face of corrupt authorities: people stop doing what they are told.

[…] App Reviewer Sues Apple After Firing […]

>Apple’s job is to make money, not to politically grandstand

You say that as if these two things were opposites of each other, but they're not. If customers prefer to buy from companies that take specific political positions, then taking these positions will help these companies make money, so political grandstanding can literally be part of a company's business model.

Apple is pretty famous for doing that, in fact. One of the reasons people do choose Apple's products is that they say things like "Privacy is a fundamental human right. At Apple, it's also one of our core values." That's political grandstanding. It's also a good idea, and something Apple usually genuinely seems to act on.

Maybe it's time for them to do the same thing here.

>Objectively speaking Apple still has the best laptop and Smartphones.

That's objectively false.

OUG: “If poisoning your children were in your employer's interest, would you just do it or find another job?”

You change jobs and you shop the bastards to the EPA, industry regulators, state government, activist groups, union (if any), and the press. Your employer only delineates your professional conduct as long as you work for them (and as long as you’re contractually bound to respect certain terms, e.g. confidentiality, after leaving), and civil and criminal law still takes precedence. They cannot force you to perform/ignore an illegal action. It may well cost you your job to say “no”, but honestly what does it say about you to do anything else?

Go find another strawman to whale on, cos that one is reedy and pathetic.

OUG: “Secondly Apple is not "a carrier". They're a self-appointed monopoly.”

As of Dec 2020 Apple currently holds just under 27% of the smartphone market. Alphabet is more of a monopoly than Apple. Thanks for playing.

Old Unix Geek

Wow @has, what a nice little binary world you live in. In the real world, there are plenty of perfectly legal things your employer can tell you to do which will damage the environment, other people, or the nation. The law is only adjusted after malfeasance has caused harm, sometimes a very long time afterwards. People risk not just a career but their entire livelihoods to report such malfeasance, violating "contracts", "oaths" and overcoming other obstacles. These people are called whistle blowers.

And whoosh, that second comment shows you didn't even understand what I said! Apple decides what software may and may not run on iOS devices. That's called a monopoly. An app needs to be rewritten to run on Android, therefore it's a different market. If there were only one publisher for the English language, and I had to rewrite my book in German to get it published, that too would be a monopoly.

"Thanks for playing": how very childish. Run along to your sandbox.

Apple decides what software may and may not run on iOS devices. That’s called a monopoly.

It’s not that simple. Is Daimler deciding what accessories run on a Mercedes entertainment system a monopoly? (Perhaps. But most antitrust law hasn’t been adjusted accordingly.)

Apple and Google do effectively hold a duopoly, though, and phones are arguably sufficiently essential at this point that treating them as utilities may apply. But, again, judges haven’t actually decided such yet.

As it stands right now, odds are most judges internationally would rule that the iOS platform is not a monopoly at all, as you could buy an Android phone instead, not to mention other options such as Sailfish OS.

(Whether we like it so is an entirely different discussion.)

Now, more to the point of this China-related issue:

Apple just wiped out 39,000 game apps to comply with Chinese law. However if Chinese people could side-load apps, they could get around this restriction: is up to individual Chinese citizens to decide whether to obey or ignore Chinese law.

Yeah, except that’s not at all how things work. Disney doesn’t have movie watchers sign an “I acknowledge that the CCP considers this film problematic” waiver. They edit the movie until the CCP no longer objects. That’s exactly what Apple does, too. It’s not great, and letting people use a different store would be a consumer-friendly workaround for the issue, but it is what it is.

(One might argue that phones are slightly more essential in someone’s day-to-day than motion pictures. Yes. But again, that’s not how antitrust law has played out thus far.)

An app needs to be rewritten to run on Android, therefore it’s a different market.

No, it isn’t.

If I need to change a screw to fit a different hinge, I’m not suddenly in a different screw market. I’m in a different market segment, and monopolies for segments aren’t a thing.

If there were only one publisher for the English language, and I had to rewrite my book in German to get it published, that too would be a monopoly.

Leaving aside the absurdity of this hypothetical (how does that even work? In your scenario, is the English language under copyright, with someone issuing an exclusive license to it? If not, what stops anyone from entering that market segment?), where on earth did you get that idea?

“Thanks for playing”: how very childish. Run along to your sandbox.

The thing is, “Apple is a monopoly” is a bit of a tired line from the 1990s that, so far, hasn’t actually become legal practice. This may change because iOS is a much bigger platform than the Mac ever was, but so far, it hasn’t.

You’re conflating what you wish legal practice were with what legal practice actually has been.

Old Unix Geek

@Sören:

I don't accept your screw argument. Long books and medium-complexity applications are of a similar complexity. Screws aren't. A limited number of book publishers is not far fetched. Consider the consolidation of media: many brand names, few actual owners ( https://www.pbs.org/independentlens/democracyondeadline/mediaownership.html ). Consider communist countries pre-Perestroika. It only seems far fetched from a US centric perspective.

The word monopoly is defined as the exclusive possession or control of the supply of or trade in a commodity or service. It's an English word. As such the AppStore is a monopoly: it controls the supply or trade in a commodity or service, namely applications written for iOS. Whether or not a bunch of lawyers, from whatever country, have decided to notice this fact, does not change what is self-evidently happening: applications cannot be made available on iOS without Apple's say-so. There is no technical reason for this, therefore they are a self-appointed monopoly. Since lawyers are not high priests, and as such are not the sole arbiters of truth, I am fully entitled to point this out and use the word monopoly.

I assume that you are asserting that Swift and iOS' APIs are under copyright with your statement about the English Language not being copyrighted. Actually, the answer has been until now, no, they are not. Oracle's lawsuits against Google about Java's APIs has muddied the water, but that case is not yet settled. https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_Inc. As Microsoft has testified, if APIs were to become copyrighted, it would upend the current software industry.

Epic's lawsuit might surprise me pleasantly. However, it seems to me that today's powers that be are quite happy to let corporations have their monopolies. It makes their lives so much easier if they wish to surveil us, as Edward Snowden's revelations have pointed out. This article seems quite relevant: https://locusmag.com/2021/01/cory-doctorow-neofeudalism-and-the-digital-manor/

Finally, I do not consider Hollywood's censoring of the West's culture to please the Chinese authorities to be a good thing for the future development of the West's culture. The West's unique contribution to the world, which led to its cultural and technological blossoming, was the notion that no one has the final say as to what is true. Instead our societies are environments in which ideas fight it out, and the fittest survive. Chinese people are no less inventive than the West, but authoritarian Emperors made the lives of inventors very difficult: to them, social stability mattered more than better ideas. That resulted in China losing its 25% share of world GDP, and its subjugation by Western Empires.

I really feel sorry for Pham. His family came from a communist country where a knock on the door at midnight would result in family members being taken and "disappeared" for good, never to be seen again. This is the reality of Chinese and Vietnamese diaspora who come to the United States expecting "freedom" and as long as they stay out of Silicon Valley, the USA is a better place. But make no mistake, anyone who came here fleeing communism is virulently anti-communist. That's part of their makeup having experienced it first-hand.

Of course Apple is "politically active", but it's window dressing to keep the "woke" employees content with their feelings instead of, say, a raise.

Mr. Pham worked with Apple for 5 years, he worked under a scoring system that rewarded him for reviewing 1 app every 2-3 minutes. And under one manager he got extremely high marks.

But then he got an utter bozo. Who then "made an example" of him. It seems that half of the managers at Apple are bozos like the one who took a "seasoned reviewer" like Pham, who was working under a scoring system "by the rules".

Either Apple HR was no better or AppStore Reviewers are seen as disposable. I'm thinking it's the later, as no attempt was made to get him away from the bozo manager or away from App Review that might trigger him, if Apple is such an "inclusive" place (there's lip service for that, but they're not, no multinat corp running in multiple jurisdictions can afford that).

But yes @Old Unix Geek, that's how shallow and short sighted middle management is. Apple is on the Pacific Rim, Viet people and their issues are known to ANYONE who connects with them in the 'Valley, and yet Apple couldn't figure out that a member of a diaspora might have issues with communism, nor to maybe shift reviewers around so that a high performer can do his job without having compliance with communism thrown in his face.

Good managers would have.... bah nm now you know what it's like to work with a "bozo manager" and how hazardous to your career health those interactions are. Yes they will "attempt to make you quit" so that you won't get UI. And yes, these kind of interactions need to end up in court so that corps understand the true cost of bozo management.

Couple this with Silly Valley's "churn mentality" (and California's 'at-will' employment laws) and you get this kind of eggroll. And it's a bitter repast.

Old Unix Geek

Oh, look, Congress agrees with me.

After conducting seven hearings, reviewing more than 1.3 million internal documents, conducting more than 240 interviews, and reviewing submissions from 38 antitrust experts, the committee found evidence that all four companies have acted anticompetitively and are continuing to do so today.

The 4 companies being Apple, Amazon, Google, and Facebook.

The report concludes, Apple does have a monopolistic hold over what you can do with an iPhone. You can only put apps on your phone through the Apple App Store, and Apple has total gatekeeper control over that App Store

That monopoly control allows Apple to "generate supra-normal profits" from the App Store, the report finds, and those profits have become a dramatically higher percentage of Apple's revenue over time, now generating billions more than the company spends annually to run the App Store

Fancy that... all those Apple Apologists got it wrong.

https://arstechnica.com/tech-policy/2020/10/house-amazon-facebook-apple-google-have-monopoly-power-should-be-split/

https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf

Old Unix Geek

(With regard to the comment Oh look Congress agrees with me, I should have said Congress' subcommittee on antitrust, commercial and administrative law of the committee of the Judiciary agrees with me... but that's quite the mouthful).

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