Wake Forest Law Review
17Apr

Will the DOJ Lower the Walls of Apple’s Walled Garden?

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By Maeve Hickey

On March 21, 2024, the United States Department of Justice (“DOJ”) and sixteen states sued Apple, claiming the company has monopolized or attempted to monopolize smartphone markets.[1] The suit is the latest in a series of antitrust actions against the “Big Tech giants.”[2] The Federal Trade Commission has spearheaded enforcement efforts against Meta and Amazon, while the DOJ has taken on Google and Apple.[3] In addition to two state-law claims, the Complaint against Apple brings four claims under Section 2 of the Sherman Act, which prohibits “monopoliz[ing], or attempt[ing] to monopolize” a particular market.[4] The Complaint defines two relevant markets: the smartphone market as a whole and the narrower “performance smartphone” market of upscale, more expensive devices.[5]

The Walls Around the iPhone

Many of the allegedly monopolizing practices at issue involve Apple’s cultivation of a walled garden with one market for applications (the App Store),[6] one digital wallet (Apple Pay),[7] smartwatches (Apple Watches) that only pair with one type of phone (iPhones),[8] and a messaging platform (iMessage) only available on Apple devices.[9] A walled garden is a closed system of products or services over which a single entity—here, Apple—maintains significant control.[10] Within the walled garden, “[e]verything plays well together,” but users can encounter obstacles when they purchase non-Apple devices, or even when they communicate with someone outside of Apple’s system.[11] The DOJ argues that these difficulties are a feature, not a bug, pointing to an Apple executive’s statement that the company’s long-held control over iMessage stops “iPhone families giving their kids Android phones.”[12]

Walled gardens are referred to as gardens and not prisons for a reason: many of their qualities are attractive to users.[13] According to Apple, the suit punishes it for making “products that work seamlessly together, protect people’s privacy and security, and create a magical experience for [its] users.”[14] Even in a model as successful as Apple’s, “the ‘walled garden’ approach, without more, is not illegal.” [15] The real question is whether Apple’s restrictions on interoperability amount to monopolizing practices.[16]

Privacy and Competition

Apple has increasingly marketed itself as a leader in consumer privacy.[17] It is easy to grasp Apple’s theory that opening up the iPhone to third-party digital wallets might create an opportunity for fraudulent transactions, or that funneling all apps through the App Store helps prevent malware.[18] Counsel for Apple made this argument in a separate antitrust case brought by Epic Games, maintaining that the App Store stops “fraudsters” and “hackers” from reaching users.[19] Counsel for Epic argued that “the only thing that is kept out by Apple’s walled garden is competitors.”[20]

If the DOJ establishes its prima facie case that Apple’s tactics amount to monopolization, the theory that these same tactics protect consumer privacy is not enough on its own. The Supreme Court has held that courts “cannot indirectly protect the public . . . by conferring monopoly privileges on [a company].”[21] The Sherman Act “precludes inquiry into . . . whether competition is good or bad.”[22] Its underlying policy is singular: promotion of competition.[23] Therefore, litigants cannot obtain “special dispensation from the Sherman Act” by arguing that a monopolistic practice provides some other societal benefit.[24]

Instead of pitting privacy against competition, Apple will have to confront the allegations of monopolization head-on.[25] Where tactics leading to a monopoly are not unreasonable per se, courts employ the rule of reason, a “three-part burden-shifting test” where a plaintiff must first prove that the defendant’s conduct has had a “‘substantial anticompetitive effect that harms consumers in the relevant market.’”[26] The defendant then has the burden of producing a “procompetitive justification for its conduct,” which can include reasons like “enhanced consumer appeal.”[27] Finally, the plaintiff must either rebut the justification or “demonstrate that the anticompetitive harm . . . outweighs the procompetitive benefit.”[28]

Antitrust scholars largely agree that the government has an uphill battle in establishing that Apple’s tactics were anticompetitive rather than merely successful.[29] By making privacy a part of its brand,[30] Apple has positioned itself favorably to argue that its tactics help it appeal to consumers in a competitive marketplace. As a result, the case may hinge on the final step of the rule-of-reason analysis: whether the DOJ can establish that Apple’s grip on smartphone markets is more anticompetitive than procompetitive. While the case will likely take several years, it still may put pressure on Apple to reduce barriers to interoperability so that the company can position itself more favorably for settlement or trial.

Finally, other tech companies are on notice that Apple’s business model has drawn scrutiny. Some of them have already been advocating for courts to rein in Apple’s dominance.[31] Whatever its outcome, United States v. Apple will likely influence how other tech companies decide to structure their own walled gardens—and how much boxing in of customers is too much.

[1] Press Release, Dep’t Just. Off. Pub. Affs., Justice Department Sues Apple for Monopolizing Smartphone Markets (Mar. 1, 2024), https://www.justice.gov/opa/pr/justice-department-sues-apple-monopolizing-smartphone-markets.

[2] Bryan Koenig & Stewart Bishop, DOJ Sues Apple, Rounds Out US Claims Against Tech Big 4, Law360 (Mar. 21, 2024, 10:52 AM EDT), https://www.law360.com/competition/articles/1805422/doj-sues-apple-rounds-out-us-claims-against-tech-big-4.

[3] Id.

[4] Compl. at 71–76, United States v. Apple, No. 2:24-CV-04055 (D.N.J. Mar. 21, 2024), ECF No. 1 (hereinafter “Complaint”); 15 U.S.C. § 2.

[5] Complaint ¶¶ 165, 172.

[6] Id. ¶ 41.

[7] Id. ¶ 11.

[8] Id. ¶ 96. 

[9] Id. ¶¶ 80, 91. 

[10] See Michael H. Wolk, The iPhone Jailbreaking Exemption and the Issue of Openness, 19 Cornell J.L. & Pub. Pol’y 795, 797 (2010).

[11] Joanna Stern, iPhone? AirPods? MacBook? You Live in Apple’s World. Here’s What You Are Missing., Wall St. J. (June 4, 2021, 10:40 AM ET), https://www.wsj.com/articles/iphone-airpods-macbook-you-live-in-apples-world-heres-what-you-are-missing-11622817653.

[12] Complaint ¶¶ 80, 91.

[13] See Stern, supra note 11.

[14] Michael Liedtke et al., Justice Department sues Apple, alleging it illegally monopolized the smartphone market, Assoc. Press (Mar. 21, 2024, 4:12 PM EDT), https://apnews.com/article/apple-antitrust-monopoly-app-store-justice-department-822d7e8f5cf53a2636795fcc33ee1fc3.

[15] Apple iPod iTunes Antitrust Litig., No. 05-CV-0037, 2014 WL 12719194, at *3 (N.D. Cal. Nov. 25, 2014).

[16] See Mark A. Lemley, The Splinternet, 70 Duke L.J. 1397, 1424 (2021).

[17] See, e.g., Apple, Privacy on iPhone | Data Auction | Apple, YouTube (May 18, 2022), https://youtu.be/NOXK4EVFmJY?feature=shared; Press Release, Apple, Apple builds on privacy commitment by unveiling new education and awareness efforts on Data Privacy Day (Jan. 24, 2023), https://www.apple.com/newsroom/2023/01/apple-builds-on-privacy-commitment-by-unveiling-new-efforts-on-data-privacy-day/.

[18] Liedtke et al., Justice Department sues Apple, supra note 14.

[19] See Michael Liedtke, Battle over the iPhone app store spills into appeals court, Assoc. Press (Nov. 14, 2022, 7:56 PM EDT), https://apnews.com/article/technology-business-apple-inc-games-c5fcfcc748398aa2f56586256711b0b9. Unlike the DOJ’s case, which focuses on smartphone markets, Epic’s case targets the App Store. Id.

[20] Id.

[21] Nat’l Soc’y Pro. Eng’rs v. United States, 435 U.S. 679, 695–96 (1978).

[22] Id. at 695.

[23] See Erika M. Douglas, Data Privacy as a Procompetitive Justification: Antitrust Law and Economic Analysis, 97 Notre Dame L. Rev. Reflection 430 (2022).

[24] Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 94–95 (2021).

[25] Douglas, supra note 23, at 465 (explaining that the “social value of data privacy does not render its protection an antitrust concern under existing law.”).

[26] FTC v. Qualcomm Inc., 969 F.3d 974, 989, 991 (9th Cir. 2020) (quoting Ohio v. Am. Express Co., 585 U.S. 529, 541 (2018)).

[27] United States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001) (internal quotation marks omitted).

[28] Id.

[29] See Daniel A. Crane, Ranking the Big Tech Monopolization Cases, Yale J. on Regul: Notice & Comment (Mar. 26, 2024), https://www.yalejreg.com/nc/ranking-the-big-tech-monopolization-cases-by-daniel-a-crane/; Alex Keenan, ‘Apple will prevail’: US faces uphill slog in new antitrust battle, Yahoo! Finance (Mar. 27, 2024), https://finance.yahoo.com/news/apple-will-prevail-us-faces-uphill-slog-in-new-antitrust-battle-080027800.html.

[30] See supra note 17.

[31] See Dorothy Atkins, Microsoft, Others Can Weigh In On Epic, Apple App Store Row, Law360 (Apr. 5, 2024, 6:39 PM EDT), https://www.law360.com/articles/1822267/microsoft-others-can-weigh-in-on-epic-apple-app-store-row (discussing motions by Microsoft Corp., X Corp., Spotify USA, Inc., and others to file amicus briefs in Epic’s suit against Apple).

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3Nov

Can Prisoners Challenge the Conditions of their Confinement Through a Writ of Habeas Corpus?

Categories: Current Issues Blog
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By Max Anthony

On September 26, 2022, thousands of prisoners across the state of Alabama launched a labor strike in response to the “deteriorating conditions” and “pervasive violence” inside state prisons.[1]  In fact, conditions have deteriorated to the point that multiple homicides and drug overdoses occur on a weekly basis resulting in a “new normal.”[2]  This new normal caught the eye of the Department of Justice (“DOJ”), who filed a lawsuit against the Alabama Department of Corrections (“ADOC”) in 2020.[3]  The lawsuit alleges, inter alia, that ADOC has failed “to provide safe conditions of confinement in violation of the Constitution.”[4]

Specifically, locks in ADOC’s prions are “broken or defective,” surveillance cameras do not function, and dormitories are “open and overcrowded” requiring prisoners to use “shared showering and toileting facilities.”[5]  Additionally, plumbing does not work, causing routine “flooding.”[6]  These unsafe conditions create “heighten[ed] tensions,” increasing violence.[7]  For example, from 2018 to 2019, at least twenty-four prisoners were killed, leading to ADOC having “the highest homicide rate in the nation for a state prison system.”[8]  From 2019 to 2020, “at least 825 prisoner-on-prisoner assaults” occurred with one prisoner being “stabbed repeatedly in the face” and another hospitalized after being stabbed in the stomach twenty-six times.[9]

Even the correctional officers contribute to the violence.[10]  For instance, four correctional officers were indicted in 2020 after “using excessive force on a prisoner and for obstructing justice by filing false reports to conceal their misconduct.”[11]  Others have beaten “handcuffed prisoners . . . by striking them repeatedly with a baton.”[12]  All of this has been caused by ADOC’s failure to provide “adequate” educational and work opportunities and its failure to “implement effective classification and housing policies.”[13]

DOJ, however, is challenging these conditions of confinement as violative of the “Eighth and Fourteenth Amendments” of the United States Constitution.[14]  The question remains then whether the prisoners can challenge the conditions of their confinement through a writ of habeas corpus. 

The Supreme Court has explicitly left open the question of whether prisoners may challenge the conditions of their confinement through a writ of habeas corpus.[15]  Recognizing this unanswered question, the Supreme Court, in Ziglar v. Abbasi,[16] explained in dicta that habeas would provide a faster and more direct route to relief, “if necessity required its use.”[17]  Although the Court declined to determine the scope or availability of a habeas remedy because it was not at issue, it did explain that a successful habeas petition would require “officials to place [prisoners] in less-restrictive conditions immediately.”[18]

Further, in Preiser v. Rodriguez,[19] the Supreme Court determined that when a prisoner is put “under additional and unconstitutional restraints during his lawful custody” habeas corpus may be available to remove the restraints “making the custody illegal.”[20]  This is because habeas may be “available to challenge such prison conditions.”[21]  The Court also clarified that if a prisoner challenges both the conditions of their confinement and the fact or length of the confinement, the “latter claim . . . is cognizable only in federal habeas corpus.”[22]  However, the Court declined to define the contours of habeas because plaintiffs properly filed under § 1983.[23]  In his dissent, Justice Brennan concluded that some instances remain where a claim may “properly be brought in habeas corpus, even though it is somehow sufficiently distant from the ‘core of habeas corpus.’”[24]

Indeed, earlier Supreme Court cases established that prisoners may use habeas corpus to challenge the conditions of their confinement.  For example, in Johnson v. Avery,[25] a state prisoner sought relief from his confinement in a maximum security unit through a writ of habeas corpus.[26]  The prisoner was challenging a prison regulation that barred prisoners from assisting others in preparing writs of habeas corpus.[27]  The Court held that habeas corpus could be used to challenge unconstitutional conditions of confinement when prison regulations conflict with “federal constitutional or statutory rights.”[28]  In fact, the Court emphasized the “fundamental importance of the writ of habeas corpus in our constitutional scheme.”[29]

Circuit courts, however, are split on the question of whether prisoners can challenge the conditions of their confinement through a writ of habeas corpus.[30]  For example, in unpublished opinions, the Fourth Circuit has held that conditions of confinement claims are not cognizable in habeas proceedings.[31]  All of these cases cite Preiser to hold that a conditions of confinement claim is only appropriate in a § 1983 claim, not through a habeas petition. However, the Preiser court simply concluded a § 1983 action is a “proper remedy” for a state prisoner challenging only the conditions of their prison life, “but not the fact or length of his custody.”[32]  But, in the very next paragraph, Justice Stewart clearly stated, “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions.”[33]

As Justice Brennan made clear in his dissent, the court’s holding simply means that if a prisoner is challenging the fact or duration of their confinement then a habeas petition is their only option, but a conditions of confinement claim can be brought either through a habeas petition or a civil rights claim.[34]

Using this analysis, the Court of Appeals for the District of Columbia Circuit, in Aamer v. Obama,[35] held a prisoner may challenge the conditions of their confinement “in a federal habeas corpus petition.”[36]  The court specifically stated that Preiser did not “hold that the converse is also true—that is, that any claim challenging something apart from the fact or duration of confinement may not be raised in habeas.”[37]  Instead, the D.C. Circuit concluded the “weight of the reasoned precedent in the federal Courts of Appeal” compels the conclusion that conditions of confinement claims may be brought through a habeas petition.[38]  This view is further supported by the First Circuit, in United States v. DeLeon,[39] which concluded “[i]f the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”[40]

In sum, the writ of habeas corpus should encompass a challenge to a prisoner’s conditions of confinement.  Including these claims within the scope of habeas will allow it to “to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.”[41]  In doing so, prisoners will be freed from the torturous conditions that are stripping them of their basic human rights.

[1] Keri Blakinger, Alabama Said Prison Strike Was ‘Under Control.’ Footage Shows System in Deadly Disarray., Marshall Project (Oct. 6, 2022), https://www.themarshallproject.org/2022/10/06/alabama-said-prison-strike-was-under-control-footage-shows-system-in-deadly-disarray.

[2] Id.

[3] Complaint at 1, United States v. Alabama, 2020 WL 7246531 (No. 2:20-cv-01971-JHE) (Dec. 9, 2020).

[4] Id. at 1–2.

[5] Id. at 18.

[6] Id. at 19.

[7] Id.

[8] Id. at 6–7.

[9] Id. at 7–8.

[10] Id. at 14–15.

[11] Id.

[12] Id. at 15.

[13] Id. at 12.

[14] Id. at 20.

[15]  See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement.”).

[16] 137 S. Ct. 1853 (2017).

[17] Id. at 1863.

[18] Id. at 1862–63.

[19] 411 U.S. 475 (1973).

[20] Id. at 499.

[21] Id.

[22] Id. n.14.

[23] Id. at 500. 

[24] Id. at 506.

[25] 393 U.S. 483 (1969).

[26] Id. at 484.

[27] Id.

[28] Id. at 486.

[29] Id. at 485; see also Wilwording v. Swenson, 404 U.S. 249 (1971) (concluding state prisoners have a cognizable claim in habeas corpus to challenge their living conditions and disciplinary measures in prison); In re Bonner, 151 U.S. 242, 259 (1894) (“[The writ of habeas corpus] was intended as a protection of the citizen from encroachment upon his liberty from any source”) (emphasis added).

[30] See, e.g., Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (holding state prisoners can only use a habeas petition if their claims lie at the core of habeas corpus); Miller v. United States, 564 F.3d 103, 105 (1st Cir. 1977) (recognizing federal prisoners may challenge the conditions of their confinement through a habeas petition under 28 U.S.C. § 2241).

[31] See, e.g., Wilborn v. Mansukhani, 795 F. Appx. 157, 164 (4th Cir. 2019) (concluding prisoner’s challenge to the conditions of his confinement do not “fall within the scope of habeas corpus”); Rodriguez v. Ratledge, 715 F. Appx. 261, 266 (4th Cir. 2017) (explaining plaintiff’s deprivation of good conduct is cognizable under § 2241, but his challenge to the conditions of his confinement is not).

[32] Preiser, 411 U.S. at 499.

[33] Id.

[34] See id. at 505 (“Yet even though a prisoner may challenge the conditions of his confinement by petition for writ of habeas corpus, he is not precluded by today’s opinion from raising the same or similar claim…by suit under the Ku Klux Klan Act, provided he attacks only the conditions of his confinement and not its fact or duration”).

[35] 742 F.3d. 1023 (2014).

[36] Id. at 306.

[37] Id. at 300.

[38] Id. at 306.

[39] 444 F.3d 41 (1st Cir. 2006).

[40] Id. at 59.

[41] Jones v. Cunningham, 371 U.S. 236, 243 (1963).

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