1 May 2020 | By DF
This is a 9-part essay series on Apple’s Success in China. Part 1 introduces the essay series. Part 2 explains Apple’s product-zeitgeist fit in China. Part 3 looks at product localization. Part 4 looks at Apple’s services in China and relationship with Tencent. Part 5 looks at the complexities of operating in China. Part 6 and Part 7 look at Apple’s compliance efforts in respect of the App Store and iCloud respectively. Part 8 looks at Apple’s investment in DiDi. Part 9 concludes with lessons from Apple’s experience in China.
This essay will discuss Apple's App Store governance in China in greater detail. The App Store itself is organized according to geographic region and, for an app to be approved for the App Store, it must comply with both Apple’s App Store policies and the local laws and regulations of any location where the app is made available to users.
According to Apple Transparency Report, Apple “has a centralized and standardized process for receiving, tracking, processing, and responding to legal requests from law enforcement, government, and private parties worldwide, from when a request is received until when a response is provided” and that its “legal team reviews requests received to ensure that the requests have a valid legal basis” before deciding whether to comply with the request or to challenge or reject the request.
We will primarily discuss the App Store experience of users whose Apple ID’s location is set to mainland China (hereafter “Chinese App Store”). Notably, users with a mainland Chinese Apple ID will have the same App Store experience, regardless of whether they are in China or overseas, whereas users whose with a non-mainland Chinese Apple ID within China are not affected by restrictions the Chinese App Store.((Interestingly, there is a parallel between Apple's App Store Governance and the principle of jurisdictions from a public international law. Instead of the now commonly accepted principle of territoriality—you are subject to the laws of the land you are currently in—Apple's differential treatment based on Apple ID suggests a reversion to the more ancient principle of nationality, which permits a country to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in another state.))
There is not enough space to discuss either Apple’s App Store Review Guidelines or Chinese laws and regulations in detail.
At a high level, Apple’s rules are highly prescriptive and the process of App Review is known to be fairly opaque. Similarly, Chinese laws and regulations are not exactly known for being exemplars of accessibility and transparency, and this is especially the case with its Internet regulation. As such, the cumulative list of apps removed by Apple from the Chinese App Store would be too long to list and discussion of their reason for removal would be highly speculative. Apple also states that the vast majority of apps removed were for pornography and gambling.
In general, the Chinese government relies on the technological measures of the Great Firewall, whose effects take place at the network layer, to implement its desired Internet regulation policy.
Based on my personal observation, apps whose ordinary functions are impeded at this network layer are generally left alone in the Chinese App Store as they are not accessible within China without a VPN. Indeed, insofar as Chinese users travel overseas to a jurisdiction where they would like to use such apps (e.g. Google Maps), the availability of these apps in the Chinese App Store means these users are not compelled to learn how to switch the locale of their App Stores.
An exception to this is if the app is designed explicitly to bypass the technological measures of the Great Firewall, such as the Chinese-language New York Times app, which “adopted a different method for retrieving articles, one that the government appeared unable to stop” and was blocked in 2017. Generally, however, when Apple removes an app, it merely tells developers that the app contains illegal content and does not specify which laws the app is alleged to have violated.
However, this still leaves the VPN apps themselves, which allow users to circumvent the technological measures imposed at the network layer. In 2017, Apple were required by the Chinese government to remove VPN apps from the Chinese App Store after China’s Ministry of Industry and Information Technology “announced that all developers offering VPNs must obtain a license from the government”, according to an Apple’s spokesperson. In the West, Apple came under criticism for its removal of these VPN apps, such as for its perceived failure to put principle before profit and failing to respect freedom of expression. This episode illustrates that Apple’s adherence to local Chinese laws and regulations creates a public relations risk in the West.
Indeed, based on my personal observation, more worryingly, the removal of these VPN apps have created a vacuum filled by shady developers offering apps in the likeness of these blocked VPN apps that are distributed using enterprise certificates that allow the app to bypass App Review, thus heightening security risks posed by these apps.
Another illustration of such criticism came in the form of Apple’s ultimate decision to remove HKmap.live, an app that enabled protesters in Hong Kong to track the police, from the Hong Kong App Store. This came after a string of rejections and approvals, which attracted criticisms from Chinese state media and US politicians alike. Ultimately, Tim Cook himself sent an email to employees justifying the decision, claiming that the decision was based on “credible information” from the authorities and people in Hong Kong “that the app was being used maliciously to target individual officers for violence and to victimize individuals and property where no police are present”.
One final example is Apple removing the game, Plague Inc.—which challenges users to spread a deadly virus around the world—from the Chinese App Store after China’s Cyberspace Administration determined that “it includes content that is illegal in China.” The game was created long before the ongoing coronavirus outbreak but became the bestselling app in China in January 2020. Motivating the Cyberspace Administration determination is probably a sense that such a game profiting in the wake of the coronavirus outbreak is in poor taste. But does this actually constitute the alleged illegality and justify its removal from the Chinese App Store?((An alternative explanation is the game did not have the requisite ISBN number for games to be distributed in China, a fact that is probably discovered after it achieved bestselling status. But this is almost a fig leaf that conceals the genuine motivation.))
As the examples above illustrate, Apple—by virtue of controlling the Chinese App Store, a key, irreplaceable infrastructure through which apps are distributed to iOS devices—is placed in a position where it must apply Chinese laws and regulations, whose substance and motivations may differ significantly from other markets in which Apple operates. Even if we accept the principle of having to follow local laws and regulations, Apple’s quasi-enforcement role nonetheless requires the company to form a view on complex factual questions that open it to criticisms by external observers.((Here, there is another parallel between Apple's quasi-enforcement role vis-a-vis the App Store and initial decision-makers in administrative law.))