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ExclusiveEnthusiasts have questioned Consumer Reports' assessments of Apple's products for many years. After looking at the test facilities, AppleInsider talked to Consumer Reports leaders about the various controversies of the past.
On May 17, AppleInsider paid a visit to the Consumer Reports offices and testing facility in Yonkers, N.Y., where they got an inside look at how the organization arrives at its conclusions about products.
When they sat down with the Consumer Reports decision-makers, one of the topics of discussion was the organization's past assessments of Apple products, including a series of controversies involving individual conclusions about the 2016 MacBook Pro and the HomePod in early 2017."Biased for consumers"
Everyone they spoke with at Consumer Reports adamantly denied that they have been unfair to Apple, arguing that their mission and methodology is entirely analytical and data-driven.
Accusations of bias or unfairness to certain companies, a Consumer Reports spokesperson noted, is "not a unique complaint." In fact, there were times when Consumer Reports has been accused of bias in the other direction — of liking Apple and its products too much.
"We believe that they have certainly been fair when it comes to Apple products and they haven't treated them any differently than anyone else,'" said Jennifer Shecter, CR's Senior Director, Content Impact & Corporate Outreach. "We test more than 7,000 products and services every single year, and I deal with every company who has an issue and they say well, why do you like Apple so much more than you like my product.' or you have other companies who say "why don't you like [mine].'"
"But this not a question of preference," said Shecter. "This is a question of scientific evaluation and comparative testing. It is not about preference, that does not come into play into their testing."
"We treat every company and every product the same way. And it's been like that since 1936," Shecter added. "We deal with Apple products and Apple as a company the same way they deal with every other company. Empirically speaking, they evaluate every product as it comes, and every piece of feedback from the manufacturer as it comes, and that is their process. So they have had robust dialogue with Apple, throughout the processes, and they are responsive to feedback that they get from companies, too."
According to Consumer Reports' director of communications Barrie Rosen, the organization currently recommends Apple products in the categories of smartwatches, smartphones, tablets, streaming media devices, smart speakers, laptops, and all-in-one desktop computers — just about every category in which Apple offers products.
As far as device usage goes, while touring Consumer Reports' offices, they did note that the desktop computers are PCs. However, they did see quite a few MacBooks on desks there, and when they met with the company personnel in a conference room, at least two had MacBooks in front of them. As for smartphones, they noticed about a 50/50 split between iPhones and Android devices in the offices.Apple and Consumer Reports
As for Apple and Consumer Reports' relationship, they do have one, and judging by the team's comments about it, it's somewhere between cordial and cooperative.
"We have an ongoing dialogue with Apple," Shecter said. "Whenever they have a story that's coming out that we're going to call Apple out — just like they would any other manufacturer — they call them. And when they have questions, they answer them.
Consumer Reports' says that their direct dealings with Apple are with all sorts of different Apple personnel. Sometimes they talk to marketing people, sometimes product managers, and occasionally even engineers.
"It might start with a product manager," Maria Rerecich, director of the electronics testing team, said. "But we've often wind up in dialogue with the engineers on the product, because they have specific technical questions that they need to be asking and hearing their answers to. We'll go engineer-to-engineer at that point.
Shecter added that the companies' communications are usually done over the phone and that in-person meetings with Apple are less common, mostly because the two companies are headquartered on opposite coasts.
"As they do, they invite manufacturers to come and visit their facility. We're always eager to go to other manufacturers' facilities," she said.
"I think that when we've been in dialogue with them it's been good faith on both sides," said Shecter. "There have been times when we've had to be in constant contact if there's a story coming out, or if there's more stories coming out, but every time they have a question they answer their questions, truly, honestly, and responsively."The MacBook Pro Story
One of those times dialog was needed was following the release of Consumer Reports assessment of the 2016 MacBook Pro.
As AppleInsider reported in December of 2016, CR, upon the release of the newly refreshed MacBook Pro line, declined to recommend the new product, the first time it didn't recommend the MacBook Pro. Its decision was reversed the following month, following lengthy engagement with Apple and the release of a software fix.
The problem, it turned out, was that Consumer Reports had turned off caching prior to running the test, leading to the exposure of a battery bug that Apple later fixed. Apple said in public comments at the time that this resetting was "not a setting used by customers and does not reflect real-world usage."
The team at Consumer Reports gave us their side of what happened in that product assessment. Their engagement with Apple involved extensive communications, over the Christmas holiday that year.
"We run battery life tests on laptops," Maria Rerecich said. "And the way they run the battery life test is, they are doing a website cycle over Wi-Fi. They don't run those live over Wi-Fi, they have a server with the webpages stored on it so it's consistent and their testing has to be the same from time to time. So they don't want to encounter the vagaries of someone's website being down. So they have the webpages stored, they run those over wi-fi from their server, to the test machines, and we're basically cycling through webpages."
"We start with the computers fully charged, they set them all to the same brightness level, so again it's consistent across. So just let em run overnight, and then some, depending on [how long they last]," added Rerecich. "We log that recording, and basically once the laptop dies the watch stops, so they can tell exactly when it's petered out. They run that once, they record the results, and they run it a second time. we're looking for consistency within five or ten percent."
"We set them up the same as much as possible, they go with default settings largely, but have turned the cache off, and the reason they turn the cache off is because they don't want the website to be sitting in cache on the machine because then it's not exercising properly," Rerecich continued.
"In the case of the MacBook Pro, that year , when they run the two trials of the same test, they might get 14 hours and 14.1 hours. They may get 16 hours and then 16.3 hours. If it's more than that 5 percent variation, we'll run it a third time and see where it falls. The case of the MacBook, they got 10 hours, then they got 4 hours. They never see a variation like that. This was completely unusual. And the numbers told us that there's something going on. They were not able to evaluate that battery as a result, because what's the right number?' And they felt that based on that testing, there was something that was not explained, and they could not recommend the model as a result. They got in touch with Apple and they had a lot of back and forth with Apple."
"We got in touch with them beforehand and asked them for a comment," Shechter said. "Because they said we're seeing this issue, and it's gonna impact their ability to recommend the product. And what they told us for the story was they didn't know why that would be. They didn't understand why they were getting the results they were getting. So they asked them and they gave us a comment for the story. They published their story and then there had more questions about trying to figure out what the problem could be. So that was over Christmas, the year before [last], and they probably talked to them every single day of that Christmas holiday."
Eventually, CR gave their log of the test to Apple, who determined what had happened.
"Because you're doing it the way you are doing it, there's a bug being triggered in Safari," Shechter said they were told by Apple. "When you turn the cache off, this bug is being triggered. And while they respectfully disagree with you that this is a real-world test, or that this is the best indicator, they said you know, they want to make sure to them the recommendation seemed important, and so they went back and forth, and they decided to issue an update for the bug, and so they issued it, and they re-ran the tests, and it worked. So they were able to recommend it."
Shechter added that CR's policy is that they will revisit product assessments after they have denied a recommendation for a specific reason, once the issue behind that reason has been fixed. But they will not retest products that have already been recommended. If they did that, she said, "we'd be re-resting products all the time and we'd never even get to new products."
Consumer Reports sees the back and forth with Apple as an instance in which they and a manufacturer worked together to deliver a positive result for consumers.The HomePod issue
Another rather contentious issue was Consumer Reports' assessment, this past February, of the HomePod speaker, "The Apple HomePod Sounds Good, but Other Smart Speakers Sound Better." Many, including AppleInsider, had taken issue with CR's determination that the HomePod fell below such competitors as the Sonos One and Google Home Max. Their editorial also questioned how Consumer Reports had reached some a determination in what appeared to be a single day.
CR responded to that editorial that week, concluding with an invitation to visit their facilities.
During that visit, the CR staffers further filled us in on what happened when they wrote about the HomePod. The assessment was, they said, a "first look" —a collection of initial impressions of a product that Consumer Reports often publishes for certain high-profile products releases, including most iPhone and Galaxy devices. First look assessments will also sometimes take look at new, highly-touted features — such as the Face ID that debuted in the iPhone X — and also look at whether the product does certain things that it advertises doing.
"Because consumers will be very interested in a phone like that or a phone like the flagship Samsung phones or things of that nature, they will try to get results out the first day," Recevich said. "So we'll do this first look type of thing, with really big, important products that people are buzzing about. Because consumers want to know, with Consumer Reports- everyone else is talking about it, why aren't you talking about it? So that's why they did that for the HomePod —not because it was Apple, but because these are the types of products that people are [interested in] —when the Apple Watch first came out, they did that. But they do it for other products as well.
"Because the HomePod was sort of a hot product and they knew a lot of people were interested in what it was like and how it was. They did what was called a first look," Recevich continued. "In this case it wasn't a rented sample because they didn't have that available, but the first day they got them in, they did some testing, so that they could give an impression about it."
The first looks are usually presented as "early test results." Consumer Reports has published day-of-release first looks of the iPhone X, the iPhone 8 and iPhone 8 Plus, the 2016 Apple Watch and the Samsung Galaxy S 8. CR does not appear to have published first looks upon the releases of the Sonos One or Google Home Max.
"Typically on a first day, those first looks that they do, we'll get the product in, we'll rush it into the lab." said Rerecich. "We'll do the testing that we'll accomplish on the first day, and then we're gonna get together with editorial and talk about what they saw, what the results were, we'll ask questions, and we'll refine what that first day story is about."
"We did a listening test. They actually ran through their entire audio quality evaluation that day, and that was the basis of the first look, along with how it is to work with, and things like that." Amplified Rerecich. "It was just comparing the one column, which I believe is all they did on the first day. whereas the ranges that came out, combined everything else. For a speaker like that, the sound quality is the highest-weighted, it's the most important, and the other ones affected it. So, the ranking that came out in the ratings could have been slightly different from that first day, because that first day was just one component of the test.
Rerecich added that testing is not just about sound quality for speakers, but also about ease of use, features, and overall versatility. Following those evaluations, the full report is issued.
Jerry Beilinson, Consumer Reports' content development team leader and electronics editor for the Consumer Reports magazine, argued that the assessment, written by CR's Allen St. John, wasn't actually all that negative.
"Very good sound, far better than most other speakers, one of the best. The argument seems to be that [we said] it wasn't the best speaker that was ever released. It's recommended, it got a very good rating, and was with very similar rating numbers, edged out by two similarly high-end competitors."A question of aesthetics
The Consumer Reports officials did point out one thing: Their testing process does not, formally, take into account the look and aesthetics of the product. And design, it should go without saying, is something historically very important to Apple.
"We don't care much about aesthetics," Mark Connelly, director of testing said during their tour of the facilities.
"We'll describe them sometimes," said Rerecich. "Maybe for a washing machine that's not so important, but for something like a speaker that you might have in your living room, you might care what it looks like. They don't rate it and say this one looks better than that one,' unless it's unusual in some way."
"Just to be clear, those are not part of the numerical rating, they don't get calculated as part of it," said Jerry Beilinson. "What Consumer Reports can do for you is give you comparisons you can't make yourself and judgments you can't easily make yourself. So when you're in the store, what is the performance in terms of speed of this laptop? Well I'm not going to look at it or read the spec but and necessarily know what is the battery life if a consumer is looking at a product they can tell whether they like the way it looks, they don't really need ConsumerReports or another outside authority to tell them whether they think the blue one or red one is better-looking."
"That's not a way in which a consumer might be lacking in information they need to make the purchase," said Beilinson. "What we're really trying to do, primarily, is fill consumers in with information that they need to be able to make good choices."One side or another
We appreciate that Consumer Reports opened their doors to discuss testing methodology, making the entire process a little more transparent. Based on their commenters, AppleInsider readers and car aficionados have had a trust issue. Trust, once lost, is hard to regain.
In the case of the "antennagate," the public-facing information was about the signal attenuation when the phone was held, with the rest of the story behind a paywall. A paywall is any publication's right, as bills do have to get paid, but the information that was propagated wasn't the whole story —as the group did recommend the iPhone in that paid report.
With the 2016 MacBook Pro, Apple's declarations on the matter, and Consumer Reports still differ. CR has clarified its stance on the matter to us now, and Apple has not beyond it being not a consumer setting —so the whole story for users is somewhere in between. They still feel that this should have been addressed with Apple before publication of the initial test results, though.
Regarding the more recent HomePod and the audio comparison, AppleInsider still believes that the comparison the same day that the product was released wasn't handled well at all. Additionally, while an analysis in a vacuum of a product can be done rapidly, they do not believe that any kind of meaningful comparison between complex products like the HomePod and Google Home Max that Consumer Reports aims to do can be completed from start to publication in a matter of hours.
This all said, there are a few things they conclude from their visit to Consumer Reports. Having viewed their testing process and met with their team, they are confident that they do not harbor a purposeful anti-Apple agenda, nor is there any sort of conspiracy against Apple afoot behind the CR walls. Their complete testing and evaluation process is conducted with integrity and in good faith.
However, there may very well be something about CR's analytical, numbers-driven process that clashes with the design-heavy Apple ethos, and makes their conclusions about Apple products different from those of more traditional reviewers. Even so, this hasn't stopped them from recommending most of Apple's lineup.
In Ricci v. DeStefano (2009), a Title VII case that concerned the tension between liability for actual discrimination and liability for disparate impact, Justice Scalia began his concurrence this way:
I join in the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of [Title VII] of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?
Scalia wasn't the first to question the constitutionality of disparate impact liability. After Grutter v. Bollinger (2003), it was made clear that the Supreme Court would apply strict scrutiny to laws and policies that discriminate against the racial majority and not just against racial minorities. That set off alarm bells among disparate impact liability's supporters. The constitutionality issue identified by Scalia had thus been getting attention from scholars (and not just conservatives) for a while.
Disparate impact liability--as adopted in Griggs v. Duke Power Co. (1971)--presumptively forbids employers from using hiring criteria that have a disproportionate effect on racial minorities (or women) regardless of whether the employer was motivated by a desire to discriminate against applicants based on race (or sex). It even applies when the employer was unaware of the disproprotionate effect of its hiring criteria. Only "business necessity" (an undefined term) is a defense. So, for example, an employer cannot require the applicants for a particular job to have a high school diploma if such diplomas are more likely to be held by whites than by African Americans unless the employer can establish a business necessity for doing so.
(Note, as I have pointed out before, one problem is that all job qualifications have a disparate impact on some protected group. This makes everything presumptively illegal. But that's another story.)
The U.S. Commission on Civil Rights flatly stated back in the 1980s that disparate impact liability "cannot be sensibly applied to white males" given that the purpose of the liability is to uproot historical and contemporary sexism and racism. Academics have agreed. And during the debates over the Civil Rights Act of 1991 (amending Title VII to at least acknowledge the existence of disparate impact liability and limit its application), Members of Congress repeatedly stated that disparate impact liability was for women and minorities. I am not aware of any cases in which a white male has prevailed on a disparate impact theory.
All that means disparate impact liability discriminates against whites by not affording them the same protections as others. Strict scrutiny would therefore need to be applied. (Arguably, intermediate scrutiny could be applied to the sex discrimination aspects, but since they were a package deal, strict scrutiny might need to be applied to the package instead.)
Some have suggested that disparate impact could and should be fixed by applying it everybody. But even if it did extend it to white males, I don't believe that would solve the problem. Equal Protection is about individuals, not groups. If one applies disparate impact liability to, for example, the NBA to aid whites and to the City of New Haven Fire Department (which was the employer in the Ricci case) to aid African Americans, that doesn't even things out. Frank Ricci was qualified for a promotion at the Fire Department. He isn't close to qualified for the NBA (or many other jobs where whites may be statistically under-represented). He is still being discriminated against on account of his race. If half the industries in the country discriminate against African Americans and the other half discriminate against whites, that's not equity. That's just an abundance of discrimination.
The question is then: Can Griggs-style disparate impact liability survive strict scrutiny? If you want to know my thoughts, take a look at a talk I gave at the Federalist Society's 2018 Executive Branch Review: It's Time for the Executive Branch to Conduct a "Disparate Impact Inventory." (The link is to a written and footnoted version of the talk.) In it, I roughly sketch out why I think disparate impact liability under Title VII might not survive.
Here (as well as in the talk) I am more interested in a limited point: Because the Trump Administration has a duty to comply with the Constitution, it needs to get a handle on this issue. It needs to figure out where statutes, regulations, and policies have been interpreted to extend to disparate impact in a racial context and where they haven't been and why. In addition, for each statute, regulation, or policy that is being interpreted to impose liability for disparate impact, it needs to get a handle on why it is thought that it would pass strict scrutiny.
One possibility is for the Department of Justice to ask all agencies that enforce an anti-discrimination statute, regulation, or policy dealing with race to respond to the following questions:
Especially given Justice Scalia's concurrence in Ricci, this issue deserves to be taken seriously.
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