As enforcers of the 2023 Digital Markets Act (DMA) passed by the European Union (EU), the European Commission recently issued Alphabet another in a long list of recommendations to ensure the company’s compliance. According to the Commission, these required actions will “enable competing providers of AI services to innovate … on [Alphabet’s proprietary] Android phones and tablets” in order to “provide Android users across the EU with a wider choice of AI services.”
Alphabet is required by law to cater to its competitors on its own devices. Moreover, failure to ensure a positive user experience for customers will result not only in organically market-correcting lost revenue but in legal penalties.
In addition to numerous other instructions, the Commission advised the company to ensure the following:
- “Third-party AI services [are] able to autonomously control the user’s installed applications.”
- “[Android will] enable seamless integration with the operating system and its settings, such as changing the display brightness or enabling do not disturb mode.”
- “[T]he on-device models which are part of the system are available to all third parties, and that third parties can use their own on-device models on Android devices in an effective manner to offer innovative services to users.”
- “[I]nteroperability is offered free of charge on all Google Android devices… without requiring more cumbersome system settings or user friction.”
This move is just the latest example of the regulatory overreach embodied by the DMA, which makes virtually no pretense of protecting anyone from danger or fraud, but aims to protect other companies from competition and consumers from inconvenience.
Users’ ability to easily adjust the brightness on their Androids is hardly a matter of personal or national security, and the inclusion of such suggestions in a government entity’s memorandum is a symptom of a serious overregulation problem.
These suggestions are not without teeth, either. Failure to adequately adhere to recommendations in a manner satisfactory to the Commission results in a fine of 10% of annual company turnover, and 20% for repeat offenders. Last year, the Commission fined Apple $500 million for failing “to inform customers, free of charge, of alternative offers outside the App Store, [and] steer them to those offers and allow them to make purchases.”
Although a primary stated goal of the DMA is to “make the markets in the digital sector fairer,” fairness is a dangerously amorphous concept that is fraught with a history of abuse. The drastic drift of the Act’s enforcement into areas as benign as screen brightness, coupled with the draconian penalties for non-compliance, is proof of this danger.
According to “Fairness in the Digital Markets Act,” by Linus J. Hoffmann of the European University Institute, some form of the term “fair” appears 90 times in the Act’s text. Hoffman ponders, “While the notion of fairness certainly has an emotional appeal – who could be against a fair economy? – it is unclear whether it holds a meaning concrete enough to produce predictable outcomes when litigation ensues regarding … obligations of the DMA.”
Hoffman composed this paper in 2023, the year of the Act’s inception. In the three ensuing years, any hope for a reasonable application of the term has been obliterated.
Targeting a party at the behest of any other is an illegitimate role of any governing body, and convenience and comfort never outweigh basic rights and freedom. Consumers had control over which products to buy, and other companies could create their own products to compete in the market. Ironically, the DMA took control from the very people it purported to protect, and they are increasingly less free under its passing.
Alphabet and other U.S. companies already suffer under the DMA, and it is imperative that such legislation never take root on American soil. Such overbearing and truly unfair legislation is antithetical to the ideals that drive successful American innovation.