Apple created an iconic commercial for the introduction of the Macintosh in 1984. The punchline: “You’ll see why 1984 won’t be like 1984”. 40 years later, Apple has become Oceania.

A few weeks ago, Judge Yvonne Gonzalez Rogers made a landmark ruling in the Epic v. Apple case started in August 2020. After a trial, Judge Rogers issued the first ruling in September 2021. Apple won 9 of the 10 counts, but the court found Apple’s prohibition on linking to web for “outside the app” payments was anticompetitive and issued an injunction. Apple appealed all the way to the Supreme Court, who declined to take up the case. Meanwhile Apple continued with what many have labeled malicious compliance. There is an extensive record in this case: the April 30 order is the 1,508th item in the docket. This latest ruling is not a rushed one, the Judge has had enough. These are the first two sentences or the order:

For the reasons set forth herein, the Court FINDS Apple in willful violation of this Court’s 2021 Injunction which issued to restrain and prohibit Apple’s anticompetitive conduct and anticompetitive pricing. Apple’s continued attempts to interfere with competition will not be tolerated.

It gets worse:

In stark contrast to Apple’s initial in-court testimony, contemporaneous business documents reveal that Apple knew exactly what it was doing and at every turn chose the most anticompetitive option. To hide the truth, Vice-President of Finance, Alex Roman, outright lied under oath. Internally, Phillip Schiller had advocated that Apple comply with the Injunction, but Tim Cook ignored Schiller and instead allowed Chief Financial Officer Luca Maestri and his finance team to convince him otherwise. Cook chose poorly. The real evidence, detailed herein, more than meets the clear and convincing standard to find a violation. The Court refers the matter to the United States Attorney for the Northern District of California to investigate whether criminal contempt proceedings are appropriate.

This is an injunction, not a negotiation. There are no do-overs once a party willfully disregards a court order. Time is of the essence. The Court will not tolerate further delays. As previously ordered, Apple will not impede competition. The Court enjoins Apple from implementing its new anticompetitive acts to avoid compliance with the Injunction. Effective immediately Apple will no longer impede developers’ ability to communicate with users nor will they levy or impose a new commission on off-app purchases.

And here’s her closer:

Apple willfully chose not to comply with this Court’s Injunction. It did so with the express intent to create new anticompetitive barriers which would, by design and in effect, maintain a valued revenue stream; a revenue stream previously found to be anticompetitive. That it thought this Court would tolerate such insubordination was a gross miscalculation. As always, the cover- up made it worse. For this Court, there is no second bite at the apple.

It has taken years, but the European Digital Markets Act combined with this ruling in the United States has finally opened the gate to more meaningful competition in Apple’s walled garden. The costs have been staggering, as you might expect when going up against one of the most valueable companies in the world, who also has an enormous cash reserve. In the May 6 episode of his Channels podcast, Peter Kafka interviewed Tim Sweeney, CEO of Epic Games. Tim says they spent more than $100 million in legal feeds on Epic vs Apple.

Naturally Apple is appealing this recent order, but I think it’s unlikely to be successful. Meanwhile, they are finally complying with the injuction issued way back in 2021. Amazon added a “Get Book” to the Kindle app. Spotify now shows links in their app to buy various subscription plans on the web. Patreon updated their app to allow fans to subscribe on the web, bypassing Apple’s 30% fee.

The gate is open, let’s tear down this wall.

250 years ago to the day, the simmering anger between the American colonists and the British crown spilled into a shooting war. We don’t know whether the first shots that day were fired on the Lexington green or at the Old North Bridge. Wherever it was, that day marked a key moment on the path to independence.

As a child, Ralph Waldo Emerson’s father watched the events at the Old North Bridge from his nearby home. In that same home, Emerson would later write:

By the rude bridge that arched the flood,
Their flag to April’s breeze unfurled,
Here once the embattled farmers stood,
And fired the shot heard round the world.

− Ralph Waldo Emerson, “Concord Hymn”

My eighth great-grandfather Peter Crapo was one of those American farmers, living in nearby Freetown, MA. He was too far away to have been at the Old North Bridge, but records from that day document that he marched with Captain Levi Rounsevell’s Company on “the alarm of April 19, 1775”.

The Commonwealth of Massachusetts commemorates these events as Patriots’ Day. I mark the day with gratitude for the sacrifices of my ancestors to secure the blessings of life, liberty, and the pursuit of happiness. I likewise honor all who have served, and who serve today for the same noble cause.

I just added a new Guide describing how to add a GPS Receiver to your OpenBSD NTP Server which increases resiliance and ensures accurate time when internet connectivity is not available.

There are 800,000 miles of cables the size of a garden hose that carry the world’s international communications. Josh Dzieza writes a delightful long form piece at The Verge about these cables and the ships that repair them: The Cloud Under The Sea

If, hypothetically, all these cables were to simultaneously break, modern civilization would cease to function. The financial system would immediately freeze. Currency trading would stop; stock exchanges would close. Banks and governments would be unable to move funds between countries because the Swift and US interbank systems both rely on submarine cables to settle over $10 trillion in transactions each day. In large swaths of the world, people would discover their credit cards no longer worked and ATMs would dispense no cash. As US Federal Reserve staff director Steve Malphrus said at a 2009 cable security conference, “When communications networks go down, the financial services sector does not grind to a halt. It snaps to a halt.”

Corporations would lose the ability to coordinate overseas manufacturing and logistics. Seemingly local institutions would be paralyzed as outsourced accounting, personnel, and customer service departments went dark. Governments, which rely on the same cables as everyone else for the vast majority of their communications, would be largely cut off from their overseas outposts and each other. Satellites would not be able to pick up even half a percent of the traffic.

Over the last 40 years, the Chevron doctrine has been cited as the legal justification for a wide range of government agency regulation and rulemaking. This precedent was created by a 1984 ruling of the Supreme Court in the Chevron v. National Resources Defence Council case. The Court ruled that courts should defer to a government agency’s interpretation of the law as long as the interpretation is reasonable. If Congress has been ambiguous or silent, the agency’s reasonable reading should govern. Of crucial importantance, agencies can do more than interpret overly broad Congressional lawmaking; they can create new regulations never debated and approved by Congress as long as they are “reasonable”. There are some limits to the deference courts must give, but they are narrow in scope and too complex to enumerate here. Chevron has become a pillar of administrative law and has been cited in more than 15,000 court cases.

This ruling has allowed for the broad expansion and proliferation of regulations, rules, policies, and guidance that go far beyond what Congress has authorized. For example, the Food and Drug Administration went from a formal rule-making approach, to an informal rule-making approach which skips the cumbersome public hearings, to issuing non-binding guidelines¹ which are very difficult or impossible to challenge in court and are therefore effectivly legally binding:

After courts decided that the residual rulemaking authority in the statute empowered the FDA to issue binding regulations on matters not specifically covered by the formal rulemaking provision, the agency began to utilize “notice-and-comment” procedures for the promulgation of rules. The courts also, however, allowed interested parties to bring pre-enforcement challenges to such rules. Although “informal” rulemaking avoided the cumbersome hearings required with formal rulemaking, searching judicial review on the merits and increasing procedural demands added by all three branches of government have made it increasingly difficult. As a result, the FDA and other agencies have experimented with further shortcuts for issuing regulations.

As informal rulemaking became more difficult, the FDA shifted from promulgating binding rules to issuing nonbinding guidelines. For instance, rather than go to the trouble of amending its then 25-year-old regulations delineating “current” good manufacturing practices (cGMPs) for drugs, the FDA decided to issue guidance for the adoption of innovative quality control technologies by the pharmaceutical industry. Similarly, even as prescription drug advertising has become increasingly sophisticated, reflecting greater ingenuity and the emergence of brand new media such as the Internet, the FDA has not revised regulations that it issued during the 1960s, relying instead on various types of guidelines.

I am in favor of some of the regulations now in place because of Chevron. Most of the developed world models their regulation of pharmaceuticals after the United States Food and Drug Administration, and the FDA is undeniably the world-wide gold standard in safety and efficacy.

However, I am vigorously opposed to the relentless sprawl of administrative bureaucracy in government over the last 40 years, much of which has been justified and enabled by Chevron. It gives agencies wide-ranging latitude to interpret, expand, and elaborate on laws passed by Congress. It improperly shifts the balance of power from the judicial and legislative branches to the executive branch. It consolidates rule-making and rule-enforcement into an unaccountable government agency. You can vote your Congressional representative out of office. What can you do about those who work in the Office of Training and Communications, Division of Communications Management, Drug Information Branch, Center for Drug Evaluation and Research at the Food and Drug Administration? Yes, that’s one of the official names for the people who issue guidelines on drug advertising. There are at least two other offices and/or centers within the FDA which may be part of issuing these guidelines. After a couple hours of digging, I couldn’t be sure whether or how all these offices worked together, or didn’t, to produce the advertising guidelines drug manufacturers must abide by.

Yesterday, the justices on the United States Supreme Court heard arguments in two cases which challege this long-standing principle of legal deference to government agencies. Each case involves a fishing company challenging a National Marine Fisheries Service requirement that herring boats cover the cost (approx $700 per day) of government-approved observers aboard their vessels.

The court could chose to rule only on the specific fishing-related question in these cases, but most court observers expect them to rule more broadly, and limit or even possibly strike down Chevron deference.

Reporting for Bloomberg, Jennifer A Dlouhy and Greg Stohr articulate both sides of the issue clearly:

“The idea of deference is a fundamental mechanism for all of the agencies to do their jobs,” Green said during a discussion organized by the Center for American Progress and Democracy Forward. “Agencies have more expertise, they are more specialized and they are more flexible – so they can address new problems and crises that inevitably arise over time that Congress can’t foresee.”

True.

Philip Hamburger, founder of the conservative New Civil Liberties Union, said the Supreme Court should sweep away a fundamentally flawed doctrine that unfairly tilts legal proceedings. Chevron compels “a systematic favoring of the most powerful party” in regulatory disputes – the very agencies that wrote the rules – said Hamburger, whose group represents fishing industry clients in one of the high court cases.

Also true.

I expect that the current court will do more than narrowly resolve the two fishing cases that were heard today. If they do, it could be one of the most impactful rulings of the John Roberts era.