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H.R. 5017 (117th): Open App Markets Act

Who should decide what apps you can install: Tim Cook, or you?


99.7 percent of all U.S. smartphones run on one of two operating systems: Apple’s iOS or Google’s Android. Users who want to add apps to their phones are largely doing so from either Google or Apple’s app stores. It’s possible to add individual apps without using the app stores, but it is more difficult and most users are unaware that it’s an option.

Given both their market shares and the prominence of their app stores, Google and Apple have enormous power to decide which outside apps are and aren’t allowed for download or sale in their app store.

One of the most notable examples in recent years was when Apple banned an app called Send Me To Heaven, a digital game which required users to throw their iPhones as high as they could. The app would measure the peak height reached, with users trying to break their own personal records. Creator Petr Svarovsky admitted his whole point was to make people inadvertently destroy their iPhones.

Other notable apps banned by Apple, Google, or both include the top secret document-publishing Wikileaks, the cocaine simulator iSnort, and an app that could supposedly “cure” homosexuality.

Apple also removed Parler, the social media network increasingly favored by prominent right-wing and alt-right figures in 2020–21, because of its Nazi imagery and other hate symbols. However, it was reinstituted months later after Parler made changes to appease Apple.

Companies like Apple can also require approved apps to use its own payment system, for which Apple takes a commission as high as 30 percent. In September, a district court judge in California struck that down, though it’s unclear whether the decision will go into effect or be stayed pending an appeal. (Also, the decision may only apply to Apple, leaving Google potentially untouched.)

What the legislation does

The Open App Markets Act would make several changes to app stores, including:

  • Allowing a legal avenue for third-party app stores, rather than only allowing “the” app store for Apple or Google devices.
  • Banning a company like Apple or Google from privileging its own in-house apps in searches.
  • Bar a company like Apple or Google from requiring apps available on its app store to use a payment system run by the company itself.

The provisions only apply to companies with more than 50 million U.S. users, which at the moment only means Apple and Google in this particular space.

Another section grants companies like Apple and Google exceptions from those provisions in the name of user privacy, security, or safety; to prevent fraud or spam; or to comply with federal law.

The Senate version was introduced on August 11 as S. 2710, by Sen. Richard Blumenthal (D-CT). The House version was introduced two days later on August 13 as H.R. 5017, by Rep. Hank Johnson (D-GA4).

Although both chambers’ lead sponsors are Democrats, the overall cosponsorship is fairly bipartisan. A Democratic and Republican Senate cosponsor jointly appeared on CNBC’s Power Lunch to discuss the legislation.

What supporters say

Supporters argue the legislation would help even up the marketplace and prevent two corporations from deciding for so many people what can and cannot be used on their devices.

“For years, Apple and Google have squashed competitors and kept consumers in the dark — pocketing hefty windfalls while acting as supposedly benevolent gatekeepers of this multi-billion dollar market,” Sen. Blumenthal said in a press release. “This breakthrough blow against Big Tech bullying… will help break these tech giants’ ironclad grip, open the app economy to new competitors, and give mobile users more control over their own devices.”

“For too long, Google and Apple in particular have enjoyed a near monopolistic grip on the mobile app market — stifling competition and strangling consumer choice,” Rep. Johnson said in a separate press release. This legislation will “hold Big Tech accountable, level the playing field for small businesses and app developers, and increase competition and innovation in the digital ecosystem, all while offering consumers more choice.”

What opponents say

Opponents counter that there’s a reason Apple and Google have strict standards for what can appear on their app store: to prevent fraud, hacking, theft, and other similar crimes and abuses — all of which are (while existent) actually fairly low because of the companies’ app requirements.

“Talk to many Apple users about why they purchase their product, and you’ll most likely hear the same testimonial on repeat: ‘It just works.’ That’s no accident,” wrote Eric Peterson, director of Louisiana’s Pelican Center for Technology and Innovation.

“Apple is notorious for having strict app standards to make sure consumers have an integrated product free from malware. iPhone users also only have to deal with Apple when disputing transactions, which saved them more than a billion in potentially fraudulent transactions in 2020,” Peterson continued. “Sure, these devices are not as open as other platforms, but that seems to be a choice consumers are willing to make.”

Odds of passage

The Senate version has attracted two bipartisan cosponsors: one Democrat and one Republican. It awaits a potential vote in the Senate Judiciary Committee.

The House version has also attracted two bipartisan cosponsors: one Democrat and one Republican. It awaits a potential vote in the House Energy and Commerce Committee.

Last updated Sep 20, 2021. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Nov 23, 2021.

Open App Markets Act

This bill establishes rules related to the operation of an app store by a covered company (i.e., the owner or controller of an app store with more than 50 million U.S. users).

An app is a software application or electronic service that may be run or directed by a user on a computer or mobile device. An app store is a publicly available website, software application, or other electronic service that distributes apps from third-party developers to users.

The bill prohibits a covered company from (1) requiring developers to use an in-app payment system owned or controlled by the company as a condition of distribution or accessibility, (2) requiring that pricing or conditions of sale be equal to or more favorable on its app store than another app store, or (3) taking punitive action against a developer for using or offering different pricing terms or conditions of sale through another in-app payment system or on another app store.

A covered company may not interfere with legitimate business communications between developers and users, use non-public business information from a third-party app to compete with the app, or unreasonably prefer or rank its own apps (or those of its business partners) over other apps.

The bill provides for enforcement of its provisions by the Federal Trade Commission and the Department of Justice, as well as through suits brought by developers that are injured by reason of anything forbidden under the bill.