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Judge refuses to reinstate Parler after Amazon shut it down

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Re: Judge refuses to reinstate Parler after Amazon shut it down

#211

Post by jcranmer »

JumpCrisscross wrote: post #155
nickysielicki wrote: post #138

Earlier quoted context omitted.

IANAL and I'm not saying I disagree with your conclusion, but I do think the case is more interesting than just AWS booting a malicious customer (with regards to their TOS). > there's the fact that AWS doesn't host Twitter's feed This is funny (as in, LOL funny) to point out because it makes parler seem completely inept, but it's only technically correct. They just negotiated a fat contract to host twitter, and that'…

> parler can make an interesting case about AWS picking a winner and damaging a loser Parler made this specific allegation under the Sherman Act. It was rejected because "Parler...proffered only faint and factually inaccurate speculation in support of a Sherman Act violation. AWS, in contrast...submitted sworn testimony disputing Parler’s allegations." That said, Parler "has not yet had an opportunity to conduct disc…

> Parler made this specific allegation under the Sherman Act.

Well, tried to. They didn't do a good job of it at all. What they actually alleged (relevant towards this theory) was:

* There was set to a mass exodus of Twitter users to Parler

* AWS also hosts Twitter

... They didn't even allege that AWS conspire with Twitter. Sure, they don't have any evidence of that conspiracy without discovery, but they didn't even allege a fact that could be proven with discovery.

These two facts are supposed to sustain the theory that AWS had no other reason to kick off Parler other than a conspiracy to keep Twitter the dominant platform. Despite the complaint itself opening up by alleging that AWS kicked off Parler because Parler espouses conservative views and later conceding that Parler knew that its content violated AWS's terms, albeit Parler was attempting to rectify it.

There's another issue with Parler's claims that I haven't seen anyone else bring up: if Parler was expecting the influx of Twitter users as a result of Twitter banning Trump, how would kicking off Parler keep these users on Twitter or otherwise buttress Twitter's dominance?

Re: Judge refuses to reinstate Parler after Amazon shut it down

#212

Post by triceratops »

nostromo wrote: post #204
triceratops wrote: post #196

Earlier quoted context omitted.

> The electoral college actually favored Biden this time I think we're operating on different definitions of "favored". The definition I'm using (and which most of the English-speaking world uses) is "have a fundamental advantage". He won the electoral college narrowly. He won the popular vote handsomely. That's a sign of a thumb on the scale in a pretty fundamental way.

> He won the electoral college narrowly. He won the popular vote handsomely. He didn't though. He won 57% of the electoral vote and 51% of the popular vote.

Another way of looking at it though, is he won the electoral college by a margin of 40k votes (the margin of victory in the states that mattered). He won the popular vote by a margin of 7m votes.

Re: Judge refuses to reinstate Parler after Amazon shut it down

#213

Post by mercurialshark »

Someone1234 wrote: post #187
mercurialshark wrote: post #162

Earlier quoted context omitted.

Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation): Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” o…

> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Amazon isn't the state. > Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity. Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity. > AWS's behavior may be viewe…

There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation.

--

> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state.

Amazon isn't the state.

- Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

Re: Judge refuses to reinstate Parler after Amazon shut it down

#214

Post by umvi »

xoa wrote: post #134
umvi wrote: post #92

Earlier quoted context omitted.

Should Verizon and T-Mobile have free speech rights too then? Why should they allow literal Nazis to communicate over their infrastructure?

> Should Verizon and T-Mobile have free speech rights too then? Try reading the whole paragraph (emphasis added): >particularly if they in some way are significantly making use of government power themselves ( limited spectrum allocation for cellular carriers for example Come on. > Why should they allow literal Nazis to communicate over their infrastructure? Because they're making use of a government granted monopoly…

> Because they're making use of a government granted monopoly on a physically limited common. They should in turn operate as common carriers.

Hmm, not always though. I use WiFi 99% of the time, including for voice calling, which isn't using any government-allocated cellular spectrum. So in my case, T-Mobile should be able to filter packets going through their servers and censor undesirable speech, right? Their servers, their ToS, right?

Re: Judge refuses to reinstate Parler after Amazon shut it down

#215

Post by timdev2 »

mercurialshark wrote: post #162
mercurialshark wrote: post #55

Earlier quoted context omitted.

Tech attorney here (with no relation to this specific matter). I wouldn't say they don't have a leg to stand on. I think it will prove to be very interesting.

Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation): Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” o…

I don't see how Packingham or Marsh are likely to be relevant here.

While the former has some lofty language about central social media has become in society, it's still a decision about state action.

Marsh seems like a reach as well - PragerU tried that and it didn't work. I'm not convinced Parler would fare any better here.

Re: Judge refuses to reinstate Parler after Amazon shut it down

#216

Post by dragonwriter »

nickysielicki wrote: post #138
tptacek wrote: post #2

Here's the denial of the TRO: https://drive.google.com/file/d/1qhXD-4Kaw5dCEBv0dUM8buygEKg... Parler hasn't lost the case, just a TRO that demands reinstatement on AWS, but the ruling on the TRO requires the judge to tip their hand about the case, and Parler is going to lose. I don't think you even need to read the AWS AUP to know that Parler has no real case here. To buy Parler's contract claim, you'd have to believ…

IANAL and I'm not saying I disagree with your conclusion, but I do think the case is more interesting than just AWS booting a malicious customer (with regards to their TOS). > there's the fact that AWS doesn't host Twitter's feed This is funny (as in, LOL funny) to point out because it makes parler seem completely inept, but it's only technically correct. They just negotiated a fat contract to host twitter, and that'…

> This is funny (as in, LOL funny) to point out because it makes parler seem completely inept, but it’s only technically correct.

This is one of the cases where technically correct is actually the best kind of correct, because it goes directly to Parler’s claim that Twitter is a similar situated entity hosted on AWS being treated differently.

> They just negotiated a fat contract to host twitter, and that’s set to go live in the next few months. Can that really not be considered an endorsement of twitter’s content with respect to AWS’ ToS?

Um, no?

(1) Because if Twitter is under the standard TOS, they’ll be subject to the same reactive enforcement and quick cancellation as anyone else. Bringing someone on on those terms simply means you have the same trust as you’d extend to a random member of the public that they won’t break your TOS.

(2) Since they just “negotiated a fat contract”, they may or may not even be under the same TOS as are offered to people who just want to pick up hosting without negotiation. Which would be even farther from an endorsement of their content adhering to the general TOS.

> I do think that parler can make an interesting case about AWS picking a winner and damaging a loser.

Its possible that they could do so in the abstract, but they have made an argument along those lines, and its pretty clear that that concrete argument, as opposed to any hypothetical one they could have made, was, in the context of the particular evidence they’ve profferred to support it, unconvincing to the judge.

Re: Judge refuses to reinstate Parler after Amazon shut it down

#217

Post by duskwuff »

echelon wrote: post #186
duskwuff wrote: post #175

Earlier quoted context omitted.

> he was saying that their tech rep at Amazon gave no hints that they were in danger of being shut down And I wouldn't expect them to do so! They're a tech rep, not a legal rep.

So deplatforming by surprise is okay? Facebook and Twitter don't own their data centers. If the DCs responded to the same pressure about hosting illegal content, the social media giants would disappear too. Edit: the downvotes and rate limits are about to push me away from HN for good. This is ridiculous. My platform is anti-fascism. I'm tired of people on both sides trying to shut down the other side.

No, literally all I'm saying is that a technical support liason at AWS is not going to be in a position to discuss legal issues regarding the customer's account. It's not their job. If AWS operates similarly to most other companies I've worked with, technical support staff are strictly forbidden from discussing legal issues -- that's the responsibility of the legal department.

Re: Judge refuses to reinstate Parler after Amazon shut it down

#218

Post by JackC »

mercurialshark wrote: post #162
mercurialshark wrote: post #55

Earlier quoted context omitted.

Tech attorney here (with no relation to this specific matter). I wouldn't say they don't have a leg to stand on. I think it will prove to be very interesting.

Without addressing the specifics of the TRO (which is simply an early stage request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation): Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state. Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” o…

Regarding Marsh v Alabama: "Recently the case has been highlighted as a potential precedent to treat online communication media like Facebook as a public space to prevent it from censoring speech. However, in Manhattan Community Access Corp. v. Halleck [2019] the Supreme Court found that private companies only count as state actors for first amendment purposes if they exercise 'powers traditionally exclusive to the state.'"

https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_hi...

Manhattan Community Access Corp. finds that _public access television stations_ aren't subject to the First Amendment, let alone private web hosts.

I mean, as an attorney, I think it would be kind of interesting to see what happened if the Supreme Court ruled that private web hosts in general, or Amazon in particular, are somehow state actors. It would be one of the most practically disruptive-to-society court decisions I can think of, about as interesting to watch as declaring that all warehouses are now public parks. But it's against both recent precedent and common sense.

Re: Judge refuses to reinstate Parler after Amazon shut it down

#219

Post by mercurialshark »

dragonwriter wrote: post #199
mercurialshark wrote: post #110

Earlier quoted context omitted.

Sure, I'll circle back with a longer form response in a few minutes. In the meantime, I find it interesting that people think down voting my comment will intimidate me into changing the analysis. That's not how legal judgment works. That's not how anything works...

> I find it interesting that people think down voting my comment will intimidate me into changing the analysis. I find it interesting that you think you can read minds as what expectations downvoters have about their downvotes’ effect on your behavior. As you say, “That’s not how anything works…”

I do not possess power to read minds, nor anticipate the court's actions. I find it all, very interesting!

Re: Judge refuses to reinstate Parler after Amazon shut it down

#220

Post by 8note »

snoshy wrote: post #36
throwaway45349 wrote: post #11

Earlier quoted context omitted.

I do believe that should've also been in their threat model - these guys should've acted like they were hosting The Pirate Bay 2 given the state of American politics. For instance, they could've had a low-traffic backup in read-only mode, or prevent new sign-ups. Or have an application layer switch to reduce outgoing bandwidth (HTML only) to squeeze into a coloc facility on short notice.

I'm not sure if I agree with that. Outside of unabashed copyright infringement and grossly objectionable content (child porn, etc.), there hasn't been a real precedent for a tech player getting booted like this on a moment's notice. If a scenario has never occurred before, I don't see why you'd add it to your threat model. That being said, they did not have the engineering expertise to even make a resilient stack on…

OFAC compliance seems like an obvious comparison?

If your company gets put on an terrorist list, you'll be removed from US services very quickly.

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