L’Affaire Vaperware

Wednesday, 20 November 2019

The Macalope is not a fan of Apple’s ban on vaping-related apps from the App Store:

If you’re not into vaping, it’s pretty easy to cheer this action. For starters, some vaping companies are terrible people. Second, some kinds of vaping are simply not good for you, even when they don’t contain cyanide. So who could be against this move?

Well, vapers, certainly. There are actually very good reasons why some people vape, medical ones. For now those who have installed the apps can continue to use them, but in the long term developers have no way to deliver updates that could provide bug fixes or firmware updates.

It’s worth pointing out that the canisters that did contain cyanide were counterfeit. The Macalope just checked his local liquor store and we haven’t banned alcohol sales because prison wine blinded some people. He also checked the App Store and we haven’t banned mixology apps, either. But one of the apps Apple banned actually checked canisters to see if they were counterfeit.

Neither is medical marijuana user Jason Perlow:

But there are also more sophisticated devices that have USB and even Bluetooth interfaces to enable the patient to control heat settings, display lights, and update the firmware. The Bluetooth devices are accompanied by apps on the iOS and Android mobile platforms which can allow the patient to measure and monitor their usage, and, as is the case with PAX to identify the medication loaded into the device, and to understand its contents, such as the overall cannabinoid profile, the terpene mix, and other components. It also allows a user to validate the authenticity of the medication as well as testing and batch results.

Neither is Ben Thompson:

Those apps — and by extension, device functionality — are no longer available to iPhone users — you can’t get this level of functionality in a browser — not because regulators ruled them illegal, or because Congress passed a law, but because a group of technology executives said so. And, what they said held sway because the App Store is integrated with the iPhone: Apple has a monopoly on what apps can or cannot be installed.

To keep it all here on one page, my take from Monday:

I think I’m OK with this overall, but it’s a close call. The stuff about selling cartridges, and sharing news — it’s fine for that stuff to be out of the App Store because you can get it on the web. But Bluetooth stuff where apps were used as the interface for controlling hardware — web apps can’t do that (nor should they be able to). There is no alternative to a native app, and native apps are only available on the App Store. This would be an easy call to make (and would have been made from the get-go by Apple) if vaping were illegal. But it’s not illegal.

Booze Is Not a Good Comparison

A few readers, objecting to my “I think I’m OK with this overall” stance, posed the same question The Macalope did: why not alcohol-related apps, too? Wouldn’t I — who partakes of an occasional libation — staunchly object to a ban on, say, cocktail recipe apps? Well, no. If Apple were to issue a blanket ban on alcohol-related apps, I wouldn’t object so much as I would worry that Apple had lost its mind. Vaping and alcohol are both legal in the U.S., but they are not in the same ballpark.

There is a stigma — growing rapidly — attached to vaping that is not attached to alcohol. Vaping is controversial in ways that drinking is not. Is that fair? No. Apple cited 42 recent vaping-related deaths in the U.S. in its decision to ban vaping apps from the App Store. The National Institute of Health estimates that 88,000 Americans die from alcohol-related causes annually — which, if true, means over 240 per day. There’s a good chance someone in the U.S. will die from an alcohol-related cause by the time you finish reading this article. Is it fair that we as a society have accepted that, but consider 42 vaping-relating deaths a crisis? No.

This isn’t about vaping being bad and alcohol being good. It’s about vaping being controversial and alcohol being firmly socially accepted. President Trump has not called for a ban on fruit-flavored vodka, but he did call for a ban on fruit-flavored vape cartridges. Now, in the past week, Trump has walked away from that proposed ban, because, it turns out, his proposed ban was politically risky. My point here isn’t whether vape users skew toward being Trump supporters — I have no idea, and wouldn’t be surprised if vaping demographics showed no tilt toward the left or right, per se, but merely toward being young — but simply to point out that vaping is so controversial as to have risen to the level of presidential politics.

If alcohol were as contentious an issue in the U.S. today as it was 100 years ago, I would expect Apple to ban alcohol-related apps long before Prohibition became the law of the land. But it’s not contentious today.

And, speaking of alcohol-related apps, in the early days of the App Store there were apps that flagged the locations of DUI checkpoints. These apps were not illegal — in some cases the data for the apps came from the police departments themselves. In testimony before the U.S. Senate in May 2011, Apple VP Bud Tribble cited that fact as one reason why Apple allowed the apps in the App Store.

Three weeks later, Apple updated its App Store guidelines to ban such apps, and removed them from the store. They have not returned.

Like vaping apps, those DUI apps were perfectly legal. Also like vaping, they were controversial. The analogy is not perfect. Having executives drawn into testimony before Congress — as with the DUI checkpoint apps — is no small matter. There are no Senate hearings on the vaping epidemic — yet. Look at those graphs in the PEW Research demographic study of vapers I linked to above — particularly this one. The rate at which vaping is growing among high school and college students is striking. In 2016 13 percent of high school seniors reported vaping in the previous 30 days; two years later it was double that figure. If this continues apace, it seems inevitable vaping will soon reach the level of Congressional investigations.

I would wager that Apple changed its mind back in 2011 on DUI checkpoint apps not because of political pressure — remember, they defended them in a Senate hearing — but because they decided it was simply the right thing to do. I would bet that’s a factor with the vaping ban.

Online gambling is legal in several U.S. states today. It’s perfectly legal in numerous countries around the word. There have never been any apps in the App Store that let you gamble with real money.¹ Most pornography is legal — never been in the App Store, never will be. All of it: controversial. And, to varying extents: seedy.

Apple certainly isn’t being cowardly here. If anything, the quick political backlash to Trump’s proposed outlawing of flavored vape cartridges shows that taking a stand against vaping is the riskier route.

The Better Comparison: Tobacco and ‘Weed’ Smoking

Search the App Store for “tobacco” or “cigarettes” and most of what you’ll find are apps intended to help people quit smoking. But there are some eyebrow-raising exceptions.

“Tobacco Inc. (Cigarette Inc.)” is an iOS game with the following premise:

You have been a president of tobacco company. By developing new varieties and diverse additives and by making cigarette having high-addictiveness, grow the company as the best company in the world. Achieve 99.9% of global smoking rate and 99.9% of market share.

The future of cigarette is up to you.

It’s not clear if that 99.9% figure includes children. (Also, consider one big “[sic]” applied to that whole description.)

A few others: “itSmoke” (a cigarette smoking simulator — with decent graphics!), “iRoll Up the Rolling and Smoking Simulator Game” (a “game” in which you roll and “spark up” your own “cigarettes”), and an entire sub-genre of games that show up when you search for “weed baron”.

As it stands today, tobacco and marijuana are OK in the App Store if you smoke them but banned if you vape them. That distinction seems impossible to defend, other than by noting that vaping is a hot topic in the news, and cigarettes and weed baroning are not.

The Case Against the Vaperware Ban

All that said, my personal take remains unchanged: I think I’m OK with Apple’s decision, but it’s a close call. I’m not even saying I agree with it. If the decision were mine to make, I’d have left the vape apps in the store — for now at least. But I think it’s an edge case that makes for a close call, so I’m OK with it.

This seems to be problematic for some readers to come to grips with — that I can accept a decision I disagree with. To me, it’s like watching an instant replay in baseball. The umpire calls the baserunner out. One replay camera angle makes the runner look safe; a different angle makes the runner look out. Neither angle is conclusive. Maybe I feel the angle that makes the runner look safe is more compelling. But the umps review the play and the call stands: out. I’m OK with that, because it was close. Usually, instant replays in baseball are conclusive. Usually, with App Store rejections and policy changes, the correct course of action for Apple is clear.

My strong preference for the App Store, so long as it remains the only way to install apps as a consumer² (that is to say, non-developer, non-enterprise users), is for Apple to be guided by two factors: the law, and compliance with App Store technical policies.

The legal part is obvious. Apple has no choice but to comply with the laws around the world in every country in which the App Store operates. On the matter of technical polices, I mean things like forbidding the use of private APIs, abusing system resources, violating the privacy or security of users, etc. Rules that should apply equally to all apps from all third-party developers.

Does the app adhere to the law? Does the app adhere to Apple’s rules? If the answer is yes to both questions then the app should be in the App Store.

But there are always going to be exceptions. Pornography, gambling, and hate speech have been exceptions from the beginning.

The X-factor with Apple’s vaperware ban is Bluetooth — using apps to control hardware devices. All sorts of things that are banned from the App Store are adequately, if not equally, accessible via the web. The HKMaps.live app is a great example of that: the hkmaps.live website offers almost the exact same features and experience as the native app Apple yanked from the App Store. (To be clear, I oppose Apple’s decision in that case — I simply feel better about it knowing that iPhone-owning Hongkongers still have access to the same information.)

Hardware is different. Web apps can’t access Bluetooth. Without a native app there is no workaround. From Pax’s well-argued response to Apple’s ban:

At PAX, we are committed to delivering technology that enables adults to make educated, informed choices. Millions of consumers in 34 legal states, including a large number of medical patients and veterans, rely on the PAX Mobile App to control their session size, set the correct temperature and have lockout abilities to prevent children from accessing our devices. Last Tuesday, we announced our new PodID feature, which — in light of the current threats posed by the illicit market — provides consumers with unprecedented access to information about what’s in their pods, including strain information, cannabinoid and terpene profiles, access to state-regulated test results and more.

There are exceptions to almost every rule, and if Apple is considering exceptions to its vaping ban — and they should be — they should start with companies like Pax, whose apps cannot be replicated on the web and whose products can and often are used in legal, medically-sanctioned ways.