“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.

Parler Resists War of Words with Amazon Web Services and Insists Parler Will Likely Go Out of Business Absent Judicial Intervention

Parler, LLC v Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash,).  Telephone conference with court set for 10 a.m. PST on January 14, 2021.


In Reply to Amazon Web Services’ (AWS) Opposition to Parler’s Motion for Injunctive Relief, Parler argues that AWS miscasts termination as suspension, a position negated by AWS’ statement to Parler that Parler could do nothing to be restored to service.

 

Parler offers that AWS never advised Parler what contractual obligation Parler had allegedly breached. Most significantly, AWS breached the contract by failing to adhere to the thirty day period before termination the agreement requires.

 

AWS has always been aware of, and never questioned, Parler’s proactive practices concerning problematic posts, which are reactive and use a jury system issues with posts.  Parler envisioned moving to prospective artificial intelligence screening in the coming year. Moreover, AWS expressed interest in Parler’s adoption of AWS’ proprietary software, an arrangement which, if consummated, would essentially marry the two entities.

 

Parler states that it has always responded to any posting issues presented to it by AWS.  When competitor Twitter terminated Donald Trump’s account and created a Parler account, mass migration from Twitter to Parler caused Parler not only to crash but to face a backlog of troublesome posts.

 

Parler worked diligently to address problematic material, advising AWS of its progress, and was all but finished with the backlog when AWS terminated service to Parler.

 

Parler notes that no one arrested in connection with the January 6th violence in the U.S. Capitol had a Parler account, An individual killed there had an account that was dormant since November.  The posting of videos by account holders does not establish that the poster was present at the Capitol.

 

Parler argues that AWS has succumbed to pressure to suppress conservative speech as well as to deny the President social media access. 

 

Parler further argues that AWS has unlawfully preferenced the bigger and wealthier Twitter, ensuring Twitter’s market dominance by forcing Parler out of business.

 

Surely AWS can be seen as having interfered with business relationships, Parler argues, as AWS’ termination of Parler interfered with Parler’s relationships with every one of its fifteen million users.

 

Section 230 of the Communications Decency Act does not operate as a bar to an antitrust action:  Section 230 immunizes speech, not anticompetitive conduct, which the Ninth Circuit has recognized.

 

Parler states that AWS’ termination has made it difficult for Parler to find a new web hosting partner, making it likely that Parler will go out of business absent judicial intervention.  

 

If the court fails to enjoin AWS, Parler submits, AWS’ termination will likely be fatal to Parler, but an injunction will require only that AWS provide services as required in its contract with Parler, balancing the equities in Parler’s favor.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.). Parler Reply (2021-01-13)

 

It’s not us, it’s them: Amazon Web Services States Parler’s Breach of Agreement with AWS Permitted Suspension, Denies Antitrust Violation, and Claims Immunity under Section 230 of the Communications Decency Act of 1996

Parler, LLC v. Amazon Web Services, No. 2:21-cv-00031 (BJR) (W.D. Wash.). Opposition to motion for injunction filed January 12, 2021.


Amazon Web Services (AWS) has opposed Parler’s motion for injunctive relief, asserting that its agreement with Parler permitted AWS to suspend or terminate Parler because of repeated troubling postings after the November election and after the January 6th eruption of violence in the Capitol.

 

AWS states that its agreement with Parler specifically permits the actions that it took. Amazon Web Services states that Parler was slow or failed to remedy threatening postings, and that when tens of thousands of posts went unaddressed, AWS was within its contractual rights to terminate or suspend Parler

 

Parler cannot state a claim for tortious interference with business relationships in the absence of a breach of contract, AWS reasons.  AWS states that Parler has not in fact been harmed, given Parler’s assertion that it would be offline for only half a day.

 

AWS argues that Parler cannot state a claim for violation of the Sherman Act where there is no evidence of any anti-competitive communication, let alone agreement, between AWS and Parler’s competitor Twitter.  Any difference in treatment between Parler and Twitter by AWS exists because of differences in AWS’s agreements with the two entities. 

 

Finally, and perhaps most importantly, AWS asserts that Section 230 of the Communications Decency Act of 1996 immunizes AWS from liability for any actions it has taken to remove offensive or harmful material from Parler, including suspension or termination..  The immunities conferred by Section 230 preclude Parler’s claims for breach of contract and anticompetitive conduct, AWS argues.

 

AWS states that injunctive relief is inappropriate where an injunction would inhibit or preclude AWS from entering into or policing its agreements.

 

AWS has submitted redacted copies of allegedly problematic postings from Parler and has submitted, with a request that they remain under seal, unredacted copies of such material.

 

Parler may submit a response today. At this writing no time for oral argument has been established.

Parler LLC v. Amazon Web Services, No. 2.21-cv-00031 (W.D. Wash.) Opposition to Motion for Injunction

David Versus Goliath (and Goliath). Parler Challenges Amazon Web Services’ Suspension as Anti-Competitive and in Breach of Contract

Parler LLC v. Amazon Web Services, No 2:21-cv-00031 (BJR) (W.D. Wash.) Verified Complaint filed January 11, 2021.


Amazon Web Services (AWS) has suspended webhosting services to Parler, a relative newcomer to the social media marketplace because, AWS has stated, AWS doubts Parler’s capacity to monitor postings that incite violence.

 

AWS suspended  Parler almost immediately after Parler’s competitor Twitter permanently terminated the account of Donald J Trump.  This  termination prompted a mass migration of customers from Twitter to Parler as well as a significant spike in new customers. 

 

AWS towers above other web hosting services globally.  By comparison with the shuttered Parler, Parler observes that AWS has promised Twitter timeline and enhanced services.

 

Parler asserts in its Complaint in federal court in Washington that because of the suspension, which Parler says has been presented like a termination, AWS has irreparably damaged Parler’s business and reputation.  

 

Even if Parler is able to find another platform, Parler avers, the time and other costs associated with rewriting Parler’s AWS-compatible code will be extraordinary.

 

Parler alleges that AWS’ agreement to enhance services to Twitter while forcing Parler from the marketplace violates the Sherman Antitrust Act. 

 

Parler also asserts that by effectively terminating Parler without the thirty day’s notice required by the agreement between the two, AWS has breached its agreement with Parler.  

 

Parler denies any breach of its agreement with AWS, stating that it removed any allegedly unacceptable comments that AWS brought to Parler’s attention.  Parler observes that similar content has been retained without comment on Twitter.

 

Briefing concerning injunctive relief will close January 13th.  A time for oral argument has not been set.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.) Verified Complaint

Life Online: Court Declines to Order Discovery of Litigant’s Internet Identities and Activities in Its Entirety


Lindke v. Freed, No. 20-10872 (S.D. Mich.) November 2, 2020.


Plaintiff sued the city manager of Port Huron, Michigan, asserting that deleting unfavorable or politically disadvantageous comments from the city manager’s Facebook page violates LIndke’s First Amendment rights.

The Second Circuit has concluded that public officials’ public social media accounts may not exclude opinion because of disagreement.  Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2nd Cir. 2020), petition for cert. Filed August 20, 2020 (20-197). 

Freed seeks discovery, broadly stated, of all plaintiff’s social media history and activity, which plaintiff argues is beyond the scope of the lawsuit.

Defendant objects to the idea that the discovery must be cabinned to the case:  the information sought is essential to establishing that plaintiff is a “cyberbully.”

The court recognized that discovery in support of a cyberbully defense could be had but not until Freed better articulates the nature of the defense he intends to present so that discovery can be reasonably related to the case and not overly broad or unduly burdensome.  

This is particularly important, the court pointed out, where states have adopted various definitions as components of “cyberbullying.”  The court noted that whether such activities qualify for First Amendment protections may remain open for exploration, as the range of definitions of “cyberbullying” vary from unprotected “true threats” to annoyance.  Michigan criminal law tends toward “true threats” but of interest concerning discovery is which definition Freed intends to advance.

In addition the issue of whether the plaintiff posted using multiple pseudonyms may be relevant but the discovery request remains too broad.  Freed may be able to seek information about plaintiff’s behavior on Freed’s site but not throughout the internet.  Postings and accounts unrelated to Freed are not discoverable, the court has concluded.

The court declined to enter  protective order limiting discovery to matters in the complaints as discovery is already limited in that way.  Further refinement at this time is not necessary, the court concluded, but the court left open the issue of whether an order would be appropriate in light of the defendant’s refinement of his defense. 

Lindke v. Freed (E.D. Mich. 2020) Order November 2, 2020

Eternal Vigilance: Depictions of Press Freedoms and Hazards Around the World

A bit out of the ordinary for JustLawful, but the link below, created by VisualCapitalist.com, provides striking depictions of the ease (or not!) of disseminating information around the world.  Moreover, for those accustomed to observing the lives of the White House Press Corps (i.e., find seat, observe, report), it is deceptively easy to form the belief that reporting is always that cozy.  Not so!

And in further discoveries, the oft-repeated phrase alluded to here, i.e., “Eternal vigilance is the price of liberty,” has not been confirmed by the keepers of the Jeffersonian flame, who offer that the expression was in widespread use in the 19th century.  With no pride of authorship found to reside in founding father Jefferson, the phrase may be more accurately attributed to Irish lawyer, judge, and firebrand John Philpot Curran.  Those dismayed by the unending onslaughts of the digital age may find respite in the slower, yet potent, pace of the 1817 Curran memoir linked below.

Mapped:  Press Freedom Around the World.  Routley, N. Visual Capitalist.  May 2, 2020

Thomas Jefferson Foundation:  “Eternal Vigilance” May Be  a Spurious Quotation

Minnesota Legal History Project_.Memoirs of the Legal, Literary & Political Life of John Philpot Curran

 

 

 

 

 

 

 

 

 

 

 

Who’s Zoomin’ Who? Pandemic’s Videoconferencing Darling’s Security Failures Alleged to Have Permitted Data Breaches With Each Use

Cullen, et al.  v. Zoom Video Communications, Inc.,  No. 5:20-cv-02155-SVK (N.D. Cal.). Class action complaint filed March 30, 2020.

Taylor, et al. v. Zoom Video Communications, Inc., No. 5:20-cv-02170 (N.D. Cal.)  Class action complaint filed March 31, 2020. 

Motion to consider cases to be similar filed in the Cullen case on April 8, 2020.  


Videoconferencing exploded exponentially with the COVID-19 pandemic, as a declaration of national emergency and state and local stay-at-home orders inspired ingenuity in communications for business, personal, health and other reasons.  

“Zoom,” as the platform is known, emerged as a most popular platform, somehow almost immediately eclipsing other platforms such as Google Meet.

In signing on to use Zoom, Zoom represented to users that their privacy interests would be protected.  For health care practitioners, Zoom permitted the creation of business associate agreements that would, ostensibly, aid in attaining compliance with the Health Insurance Portability and Accountability Act (HIPAA).

All to the good, one might think.

Except Zoom seems to have been incorrect in its privacy and data assurances.

Zoom’s application sent data identifying the user to Facebook every time the application was downloaded and every time the user logged in.

This discovery irked more than health care providers, for whom the federal government’s relaxation of compliance requirements for telehealth during the COVID-19 crisis did nothing to relieve providers of ethical obligations to clients to maintain confidentiality.

Likewise distressed were non-professionals whose functioning depends on assurances of confidentiality.

Along with disclosures about the software insecurity came a flood of pranksters practicing “zoom bombing,” interrupting online meetings with pornography and toxic messaging.  Some churches were not amused. 

Within days of discovery and disclosure two class actions were filed in federal court in the Northern District of California.  The complaints allege violations of several consumer and privacy protection statutes and aver that even if Zoom Video Communications remedies its technology, it remains responsible for the damage incurred prior to that time.

Since disclosure, Zoom has launched a campaign to underscore its innocence, its concern, and its plans for repair.  Many of the statements come quite close to admissions, perhaps reflecting the confidence of technology scions who are, in their own minds, intent on doing good and refraining from being evil.

Or perhaps Zoom believes that it has so captivated the market that all it needs to do is to appear contrite, fix the application, and move on.  

Simple, but time-honored, security measures not prevalent in the past have come to be required, such as passwords.

And Zoom has hired Facebook’s former security chief to head Zoom’s mitigation maneuvers. 

At this time, it does not appear that Facebook has acknowledged any relationship with Zoom nor is it known whether or how much money was paid to Zoom for user information.

At the same time, Facebook is taking steps to persuade some of the market to use Facebook’s platform rather than Zoom’s.

In addition to private lawsuits, it appears that the Federal Bureau of Investigation and state attorney generals have questioned Zoom’s practices. 

Cyberspace privacy concerns and pointers for managing Zoom have been proffered by non-profits such as the Electronic Frontier Foundation.

The class actions are in their early stages.  With courts either shuttered or (ironically) reliant on videoconferencing for proceedings, it is not known when or if the court will rule on the recently filed motion to treat the Cullen and Taylor cases as related.  An initial case conference in Cullen is scheduled for June 30, 2020.  


Northern District of California Case Information

Cullen, et al. v. Zoom Video Communications, No. 5:20-cv-02155-SVK (N.D. Cal.).

Taylor, et al. v. Zoom Video Communications, Inc., No. 5:20-cv-02170 (N.D. Cal.)

Related Media

iMore.com, March 27, 2020: Responding to Backlash, Zoom Stops Sharing User Data with Facebook

New York Times, March 30, 2020: Attorney General Looks Into Zoom’s Privacy Practices

Zoom Blog, April 1, 2020: A Message to Our Users

Forbes, April 2, 2020: Why Zoom Really Needs Better Privacy: $1.9M Orders Show the Government’s COVID-19 Response is Now Relying On It

Electronic Frontier Foundation, April 4, 2020: Harden Your Zoom Settings to Protect Your Privacy and Avoid Trolls

Motley Fool, April 4, 2020: Facebook Wants to Take a Bite Out of Zoom Video’s Growth

Wall Street Journal, April 4, 2020: Zoom CEO: “I really messed up,” on Security as Coronavirus Drove Video Tool’s Appeal

Boston.com, April 7, 2020: Massachusetts Schools, Churches, Have Been Targeted by Hackers on Zoom

Forbes, April 8, 2020: Zoom Brings on Former Facebook Security Head to Fix Privacy Problems

 

 

 

 

 

Appearances Do Not An Electronic Public Square Make: Ninth Circuit Rejects Assertion that First Amendment Applies to YouTube

Prager University v. Google LLC f/k/a Google Inc. and YouTube, LLC, No. 18-15712.  February 26, 2020.


Like the universe, the internet and its multiple platforms appear to be ever-expanding, even as the law of this new domain runs to catch up with novel features and equally novel claims.  The development of largely open online platforms upon which all and sundry may present their ideas, including their video recordings, gave rise to this suit. Prager University (“PragerU”), an informational resource which is not a true university, presents video discussions about politically conservative ideas.   

PragerU has objected to YouTube’s classification of its content as subject to YouTube’s “restricted” setting and to YouTube’s concomitant limitation on some of PragerU’s advertising.  The “restricted” setting is a user driven device which permits filtering content that some may see as objectionable. YouTube manages the classifications of content. Content providers who object to YouTube’s restricted classification may appeal, but the factors involved in classification and the reasons for decisions remain internal to YouTube.

PragerU has argued that YouTube is subject to the First Amendment because YouTube acts as an electronic public square.  Much as with traditional public squares, speech must be on a come one, come all basis, without hindrance by the platform provider. As such, PragerU has insisted, YouTube’s limitations on the visibility of PragerU’s content violate its First Amendment rights.

Not so, says a panel of Ninth Circuit justices, relying on an observation from the Supreme Court’s last term that the mere hosting of another’s speech will not make a private entity public.  Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).  

The First Amendment constrains only the government.  PragerU’s argument that YouTube has assumed a traditionally and exclusively governmental function falls far short of the mark. Inviting the public to avail itself of private property will not make a private property holder a state actor.  Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).  

Unlike the government, which is forbidden by the First Amendment from interfering in citizens’ speech, a private entity may do as it pleases, notwithstanding that its choices may at times displease.  

The panel also rejected PragerU’s assertion that YouTube’s terms of use constituted false advertising in violation of the Lanham Act.  If this were so, the court observed, any agreement could be transformed into marketing material.

Finally, the Ninth Circuit refused to recognize any binding effect to YouTube’s public pronouncement that it aspires to uphold First Amendment principles.  Notwithstanding its legal tone, this statement was mere opinion.  More importantly, there is no “opt-in” feature that would allow a private actor to become a state actor by force of its own will.

JustLawful prognostication:  This decision will not end this matter.  There is simply too much speech at stake and too few platforms of YouTube’s scope to think otherwise.  This is not to suggest that the Ninth Circuit is incorrect, but that further exploration of these issues is expected.  This is particularly so where, as the Ninth Circuit noted, both parties offered that were the court to rule against them, the sky would surely fall (Slip. Op., pp. 13-14).  

Prager University v. Google 9th Cir. February 26 2020

 

Viral Publication and Opinion in a Divided Nation: CNN Settles with High School Student Said to Have Been Defamed by Broadcast of Video of Confrontation with Native American Protester on the National Mall

Sandmann v. Cable News Network, et al., No. 2:19-cv-00031 (E.D. Ky.).  Related matter:  Sandmann v. Washington Post Company, No. 2:19-cv-00019 (E.D. Ky.)


Nicholas Sandmann visited the National Mall on January 18, 2019, joining with fellow Catholic High School students in a March for Life event.  There Sandmann was confronted, face to face, by Nathan Phillips, a Native American participating in a separate event, subsequent to what appears to have been a series of taunts exchanged among protest groups. 

The video confrontation, published nationally by mainstream media, including Cable News Network (CNN), precipitated officials, news commentators, church officials, and others to characterize Sandmann, shown in a “MAGA” (“Make America Great Again”) hat, a symbol of the current executive administration, as a racist. 

Sandmann filed complaints against several media entities separately, two of which, against the Washington Post Company and CNN, have been assigned to the same senior federal judge in the Eastern District of Kentucky.  

Following dismissal with prejudice of the complaint against the Washington Post, Sandmann was granted reconsideration which set aside the dismissal in part and granted Sandmann leave to amend his complaint against the Washington Post.  

In October, 2019, CNN’s motion was denied to dismiss and Sandmann’s motion to amend his complaint were granted. 

A proposed discovery and pretrial schedule was submitted to the court in the Eastern District of Kentucky in both cases on  January 3, 2020. The parties to the CNN case reported publicly on January 7, 2020 that settlement with CNN without trial, on undisclosed terms, had been reached. 

Whether the settlement signals a change of course among other media defendants will likely unfold in the not distant future. 

Notwithstanding — and perhaps particularly in light of — the rhetoric accompanying this case, the legal issues, while well grounded in history, seem to call for particular examination in the age of instant worldwide publication and the simultaneous formation of opinions.  Whether a matter is one of fact, and therefore actionable in defamation, or of opinion, and therefore not, is a longstanding principle. Whether this is changed or modified or subject to new refinement in the age of instant worldwide transmittal and simultaneous formation and publication of opinions remains to be seen.

CNN’s account of the settlement may be found at:

CNN Settles Lawsuit Stemming from Viral Video Controversy

The opinion dismissing Sandmann’s initial complaint against the Washington Post, of some historic note, may be found here:

2019 07 26 Sandmann v. WP Company__Memorandum and Order Granting Motion to Dismiss

Not Without Merit: Federal Court in New York Allows Student Accused of Sexual Assault to Proceed with Defamation Case

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.)  Motion to Dismiss denied September 27, 2019.


Alex Goldman and Katherine Reddington were students at Syracuse University whose overnight encounter following a party ended with Reddington sensing that something had gone awry, although she had no recollection of assault until after psychotherapy months later.  Reddington obtained a physical examination which produced no evidence of assault. The district attorney declined prosecution for lack of evidence.  

However, Syracuse University took note of Reddington’s Title IX allegations and expelled Goldman, who subsequently enrolled in another university and sought employment with an engineering firm.

Goldman’s complaint states that Reddington boasted of succeeding in her case against Goldman on campus at Syracuse and online, and that she either posted or republished online comments calling him a ‘monster.’  Those comments, which attracted attention and public commentary, were tagged to Goldman’s new school and employer.

Goldman was summarily fired from his job.

The United States District Court for the Eastern District of New York has rejected Reddington’s argument that Goldman failed to plead facts sufficient to establish defamation or tortious interference with business relations and declined to address Reddington’s argument that an injunction against further commentary would violate her First Amendment rights, as a motion to dismiss addresses the complaint and not the remedies sought.  

The court did not agree with Reddington’s defense that she had offered non-actionable opinion about Goldman where that opinion was premised upon defamatory accusations of criminal conduct.  

Reddington’s tagging or republication of online posts she claims did not originate with her are not insulated from liability, the court held, for republication of defamatory material is itself actionable. 

Moreover, Goldman could go forward on his claim of tortious interference with business relationships as the claim can be premised on defamation.

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.) September 27, 2019