Apple is ripe for a win against its e-book antitrust monitor. The iPad maker claims a judge-ordered overseer is not only costly and disruptive but blatantly unconstitutional. It’s a persuasive argument, akin to ones that doomed the independent counsel role of Iran-Contra fame. A U.S. court of appeals has the opportunity to say so.
The monitor was punishment for losing a U.S. Justice Department lawsuit last July that found Apple conspired with publishers to fix electronic book prices. It seemed a tolerable way to ensure compliance with required reforms. Besides, Daimler , Diebold and dozens of other companies have voluntarily agreed to such oversight in settling various government cases.
Rarely, though, have judges installed supervisors and authorized them to delve so deeply into a company’s business. Apple understandably balked at demands to meet repeatedly with chief executive officer Tim Cook, chief designer Jony Ive and other top executives, many with no role in antitrust compliance. The monitor’s $1,100 (U.S.) hourly rate and 15-per-cent administrative fee also doesn’t sit well.
Perhaps the biggest concern raises quarter-century-old issues. In 1988, the Supreme Court upheld a law authorizing an independent counsel to investigate the Iran-Contra affair, President Bill Clinton’s extra-marital dalliances, and a host of other scandals. The court’s most influential opinion, though, was probably Justice Antonin Scalia’s dissent, which said the law unconstitutionally granted to judges the president’s exclusive power to select and control prosecutors. His criticism helped lead to the law’s expiration in 1999.
Apple’s judge seems to have similarly overreached by authorizing a monitor to act, in effect, like a prosecutor. The company basically made that separation-of-powers argument when it asked the judge to stop the monitor’s appointment pending appeal of the July ruling. Last month, she refused.
It is now up to the appeals court to rein in the excess. Constitutional issues are rarely clear-cut, and the court may decide to avoid them here by putting the monitor on hold until it can consider the appeal. That, too, would be a win for Apple. It would, however, do nothing about the troubling abuses exposed more than two decades ago.