Trojan Horse: The App Store Freedom Act

When the government shutdown ends, the House Energy & Commerce Committee is expected to move quickly and consider children’s privacy legislation. An age-old tactic in Washington is to try to attach your legislation, which has no momentum, to larger legislation that is, in fact, moving. That playbook came into full display with a letter sent to the committee suggesting that the App Store Freedom Act (ASFA) should now be considered legislation important to children’s privacy. 

ASFA is being marketed as a measure to protect children online, and yet the bill has nothing to do with children or consumer protection. The bill's text never mentions children, kids, minors, or parents. It is simply a Trojan Horse repackaging failed antitrust legislation with the hopes that it might catch a ride now disguised as protecting children.

Here are several reasons for concern: 

ASFA is about regulating competition, not children’s privacy 

Even the bill’s sponsor has acknowledged the legislation is all about the government regulating competition, not privacy. The press release states plainly: “At its core, this bill seeks to promote a competitive marketplace.” The legislation claims to attack “anti-competitive practices” that are supposedly harming app developers.   

The legislation has failed to get a hearing in the current Congress because it targets two companies and sidelines consumers in favor of government-managed outcomes in the marketplace.  Ironically, another reason the legislation has previously failed to become law, is that it has been roundly criticized for its unintended consequences of likely harming privacy and increasing vectors for transmitting malware. ASFA has done nothing to address these concerns. 

ASFA is ripe for abuse  

To shoehorn the legislation into the jurisdiction of the House Energy and Commerce Committee, ASFA framed the competition conduct it seeks to regulate as an “unfair and deceptive act or practice” under the governing statute for the Federal Trade Commission (FTC).  The trouble is, these are code words for the FTC’s consumer protection authority, not its competition authority.  Congress has clearly delineated the two functions, and for good reason. ASFA seeks to blur those differences.  Consumer protection is really about addressing business practices (like fraud and deception) that harm consumers, not regulating methods of competition that might harm less competitive rivals. Cloaking a competition bill in "consumer protection" is unprecedented and can lead to serious abuse in the near future. 

For example, the FTC has clear, explicit authority to make rules governing consumer protection, but not competition. The Biden administration tried to expand that authority to competition rules but failed to convince courts that Congress granted such authority. Should Congress now backdoor competition issues into the FTC’s consumer protection mandate, future FTC leadership will argue the agency has parallel authority to regulate competition as a matter of consumer protection.  This is not the intention of the legislation, but in a desperate attempt to circumvent the bill from going before the Judiciary Committee, ASFA opens the potential for a world of government overreach. 

ASFA undermines President Trump’s efforts to hold our trading partners accountable 

The ASFA stands in stark conflict with President Trump’s international agenda, which has aggressively opposed similar regulatory frameworks abroad, particularly the European Union’s Digital Markets Act (DMA). President Trump has repeatedly characterized such regulatory approaches as “overseas extortion” and threatened tariffs on countries that impose similar rules on American tech companies. His administration correctly views these foreign mandates as discriminatory measures targeting American innovation and has sought to shield American companies from foreign regulators in Europe, the UK, Korea, and Japan. 

While President Trump is fighting tooth and nail to prevent European-style regulation, ASFA contradicts these efforts by pushing a bill that mirrors the very principles that the President is trying to stop. The ASFA essentially validates the EU’s approach, weakening the U.S. argument that such rules are harmful and protectionist. If passed, it would undercut President Trump’s claims that these measures compromise security and punish American success, since the U.S. would be imposing similar obligations on its own tech companies.  

Bottom Line: ASFA is not about children’s privacy; it’s a Trojan Horse attempting to pass deeply flawed competition law.  

About the author

Sean Heather

Sean Heather is Senior Vice President for International Regulatory Affairs and Antitrust.

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