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ExclusiveEnthusiasts fill 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 peek 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 fill been unfair to Apple, arguing that their mission and methodology is entirely analytical and data-driven.
Accusations of color or unfairness to positive companies, a Consumer Reports spokesperson noted, is "not a unique complaint." In fact, there were times when Consumer Reports has been accused of color in the other direction — of liking Apple and its products too much.
"We believe that they fill certainly been unprejudiced 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 solitary year, and I deal with every company who has an issue and they issue well, why execute you fancy Apple so much more than you fancy my product.' or you fill other companies who issue "why don't you fancy [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 reach into play into their testing."
"We deal every company and every product the selfsame way. And it's been fancy that since 1936," Shecter added. "We deal with Apple products and Apple as a company the selfsame course 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 fill had robust dialogue with Apple, throughout the processes, and they are responsive to feedback that they procure 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 observe 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 execute fill one, and judging by the team's comments about it, it's somewhere between cordial and cooperative.
"We fill an ongoing dialogue with Apple," Shecter said. "Whenever they fill a myth that's coming out that we're going to muster Apple out — just fancy they would any other manufacturer — they muster them. And when they fill questions, they reply them.
Consumer Reports' says that their direct dealings with Apple are with complete 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 fill specific technical questions that they requisite to be asking and hearing their answers to. We'll fade 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 contradictory coasts.
"As they do, they invite manufacturers to reach and visit their facility. We're always interested to fade to other manufacturers' facilities," she said.
"I assume that when we've been in dialogue with them it's been salubrious faith on both sides," said Shecter. "There fill been times when we've had to be in constant contact if there's a myth coming out, or if there's more stories coming out, but every time they fill a question they reply 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 original product, the first time it didn't recommend the MacBook Pro. Its decision was reversed the following month, following lengthy assignation 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 assignation with Apple involved extensive communications, over the Christmas holiday that year.
"We race battery life tests on laptops," Maria Rerecich said. "And the course they race the battery life test is, they are doing a website cycle over Wi-Fi. They don't race those live over Wi-Fi, they fill a server with the webpages stored on it so it's consistent and their testing has to be the selfsame from time to time. So they don't want to encounter the vagaries of someone's website being down. So they fill the webpages stored, they race 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 complete to the selfsame brightness level, so again it's consistent across. So just let em race 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 counsel exactly when it's petered out. They race that once, they record the results, and they race it a second time. we're looking for consistency within five or ten percent."
"We set them up the selfsame as much as possible, they fade with default settings largely, but fill turned the cache off, and the understanding they circle 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 race the two trials of the selfsame test, they might procure 14 hours and 14.1 hours. They may procure 16 hours and then 16.3 hours. If it's more than that 5 percent variation, we'll race it a third time and observe where it falls. The case of the MacBook, they got 10 hours, then they got 4 hours. They never observe a variation fancy 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 birthright 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 skill to recommend the product. And what they told us for the myth 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 observation for the story. They published their myth and then there had more questions about trying to design out what the problem could be. So that was over Christmas, the year before [last], and they probably talked to them every solitary 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 course you are doing it, there's a bug being triggered in Safari," Shechter said they were told by Apple. "When you circle 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 positive 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 fill denied a recommendation for a specific reason, once the issue behind that understanding has been fixed. But they will not retest products that fill already been recommended. If they did that, she said, "we'd be re-resting products complete the time and we'd never even procure to original 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 furthermore questioned how Consumer Reports had reached some a determination in what appeared to be a solitary 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 positive high-profile products releases, including most iPhone and Galaxy devices. First peek assessments will furthermore sometimes bewitch peek at new, highly-touted features — such as the mug ID that debuted in the iPhone X — and furthermore peek at whether the product does positive things that it advertises doing.
"Because consumers will be very interested in a phone fancy that or a phone fancy the flagship Samsung phones or things of that nature, they will try to procure results out the first day," Recevich said. "So we'll execute this first peek sort of thing, with really big, needful 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 execute it for other products as well.
"Because the HomePod was sort of a erotic product and they knew a lot of people were interested in what it was fancy 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 fill that available, but the first day they got them in, they did some testing, so that they could give an imprint 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 fill 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 procure the product in, we'll rush it into the lab." said Rerecich. "We'll execute the testing that we'll accomplish on the first day, and then we're gonna procure 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 myth is about."
"We did a listening test. They actually ran through their entire audio property evaluation that day, and that was the basis of the first look, along with how it is to travail with, and things fancy that." Amplified Rerecich. "It was just comparing the one column, which I believe is complete they did on the first day. whereas the ranges that came out, combined everything else. For a speaker fancy that, the sound property 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 fill 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 property for speakers, but furthermore about ease of use, features, and overall versatility. Following those evaluations, the plenary report is issued.
Jerry Beilinson, Consumer Reports' content progress team leader and electronics editor for the Consumer Reports magazine, argued that the assessment, written by CR's Allen St. John, wasn't actually complete that negative.
"Very salubrious sound, far better than most other speakers, one of the best. The dispute seems to be that [we said] it wasn't the best speaker that was ever released. It's recommended, it got a very salubrious 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, bewitch into account the peek and aesthetics of the product. And design, it should fade without saying, is something historically very needful to Apple.
"We don't keeping much about aesthetics," brand Connelly, director of testing said during their tour of the facilities.
"We'll narrate them sometimes," said Rerecich. "Maybe for a washing machine that's not so important, but for something fancy a speaker that you might fill in your vital room, you might keeping what it looks like. They don't rate it and issue this one looks better than that one,' unless it's unusual in some way."
"Just to be clear, those are not piece of the numerical rating, they don't procure calculated as piece of it," said Jerry Beilinson. "What Consumer Reports can execute 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 accelerate of this laptop? Well I'm not going to peek 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 counsel whether they fancy the course it looks, they don't really requisite ConsumerReports or another outside authority to counsel them whether they assume the blue one or red one is better-looking."
"That's not a course in which a consumer might be lacking in information they requisite to Make the purchase," said Beilinson. "What we're really trying to do, primarily, is fill consumers in with information that they requisite to be able to Make salubrious choices."One side or another
We appreciate that Consumer Reports opened their doors to argue testing methodology, making the entire process a shrimp more transparent. Based on their commenters, AppleInsider readers and car aficionados fill had a dependence issue. Trust, once lost, is difficult to regain.
In the case of the "antennagate," the public-facing information was about the signal attenuation when the phone was held, with the repose of the myth behind a paywall. A paywall is any publication's right, as bills execute fill to procure paid, but the information that was propagated wasn't the whole myth —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 silent 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 myth for users is somewhere in between. They silent feel that this should fill been addressed with Apple before publication of the initial test results, though.
Regarding the more recent HomePod and the audio comparison, AppleInsider silent believes that the comparison the selfsame 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 execute not believe that any kindhearted of meaningful comparison between involved products fancy the HomePod and Google Home Max that Consumer Reports aims to execute can be completed from start to publication in a matter of hours.
This complete 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 execute not harbor a purposeful anti-Apple agenda, nor is there any sort of collusion against Apple afoot behind the CR walls. Their complete testing and evaluation process is conducted with integrity and in salubrious 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 connect 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 fill 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 lucid 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 alert 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 fill a disproportionate consequence on racial minorities (or women) regardless of whether the employer was motivated by a covet to discriminate against applicants based on race (or sex). It even applies when the employer was unaware of the disproprotionate consequence 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 fill a towering school diploma if such diplomas are more likely to be held by whites than by African Americans unless the employer can establish a industry necessity for doing so.
(Note, as I fill pointed out before, one problem is that complete job qualifications fill 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 contemporaneous sexism and racism. Academics fill agreed. And during the debates over the Civil Rights Act of 1991 (amending Title VII to at least own the actuality of disparate impact liability and restrict its application), Members of Congress repeatedly stated that disparate impact liability was for women and minorities. I am not conscious of any cases in which a white mannish has prevailed on a disparate impact theory.
All that means disparate impact liability discriminates against whites by not affording them the selfsame protections as others. Strict scrutiny would therefore requisite to be applied. (Arguably, intermediate scrutiny could be applied to the sex discrimination aspects, but since they were a package deal, strict scrutiny might requisite to be applied to the package instead.)
Some fill 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 resolve 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 original 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 immediate to qualified for the NBA (or many other jobs where whites may be statistically under-represented). He is silent 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, bewitch a peek at a talk I gave at the Federalist Society's 2018 Executive arm Review: It's Time for the Executive arm 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 assume 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 procure a handle on this issue. It needs to design out where statutes, regulations, and policies fill 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 procure a handle on why it is thought that it would pass strict scrutiny.
One possibility is for the Department of Justice to ask complete agencies that implement 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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