Parler's Laughably Bad Antitrust Lawsuit Against Amazon

from the i-mean,-what? dept

As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I’ve been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler’s CEO claims that his own lawyers quit (would these be the same “lawyers” who stupidly advised that the company doesn’t need Section 230?). Instead, they found a small time independent practitioner who doesn’t even have a website* to file what may be the silliest antitrust lawsuit I’ve seen in a long time. It’s so bad that by the end of it, Parler may very well be paying Amazon a lot of money.

There are so many other things I’d rather be writing about, so I’ll just highlight a few of the problems with Parler’s very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it’s going to do more harm to Parler than good.

The key part of the lawsuit is that Parler, without evidence, claims that Amazon had “political animus” against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and… even if it did show proof of political animus, that’s… not against the law. And that’s kind of a big deal. They’re basically saying it’s an antitrust violation to dislike Parler. Which it’s not. But even if it were, they are simply making up false reasons for why AWS booted Parler.

AWS?s decision to effectively terminate Parler?s account is apparently motivated by political animus. It is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter.

I mean, even just this paragraph makes no sense. You may have noticed that Amazon and Twitter are different companies. The complaint is against Amazon. Amazon doesn’t compete with Parler. None of this makes any sense. The next paragraph demonstrates how rushed and stupid and bad this lawsuit is:

Thus, AWS is violating Section 1 of the Sherman Antitrust Act in combination with Defendant Twitter. AWS is also breaching it contract with Parler, which requires AWS to provide Parler with a thirty-day notice before terminating service, rather than the less than thirty-hour notice AWS actually provided. Finally, AWS is committing intentional interference with prospective economic advantage given the millions of users expected to sign up in the near future

With Defendant Twitter? Let’s scroll back up and look at the caption again:

There’s only one defendant. And it’s not Twitter.

The complaint goes on and on about how there’s also bad stuff on Twitter, as if somehow that makes it wrong for AWS to be upset about Parler. But… Parler’s whole entire claim to fame is that it moderates differently than Twitter, so claiming that there’s the same stuff on Twitter is meaningless. Even worse, the example that Parler uses of how Twitter and Parler have similar content is around people suggesting that political officials including Congressional Representatives, Senators, and VP Mike Pence should be hanged. But the evidence that Parler itself provides undermines its own case, and in some cases directly contrasts its own claims. That’s not just bad lawyering, that’s legal malpractice.

Here is what Parler says:

What is more, by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler?s account are but pretext. In its note announcing the pending termination of Parler?s service, AWS alleged that ?[o]ver the past several weeks, we?ve reported 98 examples to Parler of posts that clearly encourage and incite violence.? Exhibit A. AWS provide a few examples, including one that stated, ?How bout make them hang??, followed by a series of hashtags, including ?#fu– mikepence.?…

AWS further stated to Parler that the ?violent content on your website . . . violates our terms.? Id. Because, AWS declared, ?we cannot provide services to a customer that is unable to effectively identify and remove content that encourages or incites violence against others,? AWS announced the pending termination of Parler?s account.

However, the day before, on Friday, one of the top trends on Twitter was ?Hang Mike Pence,? with over 14,000 tweets. See Peter Aitken, ?Hang Mike Pence? Trends on Twitter After Platform Suspends Trump for Risk of ?Incitement of Violence?, Fox News (Jan. 9, 2021), https://www.foxnews.com/politics/twittertrending-hang-mike-pence. And earlier last week, a Los Angeles Times columnist observed that Twitter and other social media platforms are partly culpable for the Capital Hill riot, by allowing rioters to communicate and rile each other up. See Erika D. Smith, How Twitter, Facebook are Partly Culpable for Trump DC Riot, LA Times (Jan. 6, 2021), https://www.latimes.com/california/story/2021-01-06/howtwitter-facebook-partly-culpable-trump-dc-riot-capitol. Yet these equivalent, if not greater, violations of AWS?s terms of service by Twitter have apparently been ignored by AWS

This leaves out some fairly important context. For one, the “Hang Mike Pence” trend was driven mainly by people calling out the insurrectionists who were saying that — and which Twitter very quickly removed under their content moderation practices. Parler, on the other hand, made it clear that it was still trying to figure out how to moderate, and hoped to rely on volunteers. That’s in Parler’s evidence. That it didn’t have a real plan in place yet. And that is why Amazon kicked it off.

On top of that, Parler’s lawsuit claims that AWS needed to give it 30 days notice, but really only gave it a couple of days. Yet, in the evidence that Parler itself provides, Amazon mentions to Parler’s policy chief that it has been sending dozens of examples of content that violate its policy for several weeks.

Amazon, for its part, appears to have not even waited to be served by Parler, but hit back hard with a very damning response to Parler that just dismantles Parler’s argument bit by bit in fairly explicit terms.

This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler?s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (?AWS?) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. There is no legal basis in AWS?s customer agreements or otherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that its content violated the parties? agreement, requested removal, and reviewed Parler?s plan to address the problem, only to determine that Parler was both unwilling and unable to do so. AWS suspended Parler?s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.

As Amazon says, the antitrust claims are obviously silly, but even the breach of contract claims are ridiculous because if anyone breached the contract, it was Parler:

Despite Parler?s rhetoric, its lawsuit is no more than a meritless claim for breach of contract. But the facts are unequivocal: If there is any breach, it is Parler?s demonstrated failure and inability to identify and remove such content. AWS was well within its rights to suspend Parler immediately for those failures. Parler also cannot hold AWS liable in tort for enforcing the agreement?s express terms. And there is no antitrust claim where, as here, Parler cannot plausibly plead an agreement to cause it harm and the complained-of conduct is undeniably compatible with a legitimate purpose.

Compelling AWS to host content that plans, encourages, and incites violence would be unprecedented. Parler has no likelihood of prevailing on the merits, and the balance of equities and public interest strongly tip against an injunction. The motion for a temporary restraining order should be denied.

In the Amazon filing, the company notes that it began sending breach reports to Parler in November of last year and detailed the nature of the content that it was concerned about, often directly calling for violence. They include a ton of screenshots of the kind of violent speech that was on Parler, that goes way beyond what you’d see on other platforms, and which other platforms would remove.

Amazon also notes that the exhibit is only a small sampling:

The content AWS provided to Parler is merely representative of volumes of content that poses a security risk and harms others, in direct violation of the AUP. See id. Exs. E-F (examples). That content includes, but is not limited to, calls for violence against a wide range of individuals, including elected officials, law enforcement officers, and teachers. People have acted on these calls: Parler was used to incite, organize, and coordinate the January 6 attack on the U.S. Capitol. See Doran Decl. Exs. F-G. AWS reported to Parler, over many weeks, dozens of examples of content that encouraged violence, including calls to hang public officials, kill Black and Jewish people, and shoot police officers in the head. Executive 2 Decl. Exs. D-F. Parler systematically failed to ?suspend access? to this content, much less to do so immediately, and demonstrated that it has no effective process in place to ensure future compliance.3 Executive 2 Decl. 7. Parler itself has admitted it has a backlog of 26,000 reports of content that violates its (minimal) community standards that it had not yet reviewed. Id. Parler?s own failures left AWS little choice but to suspend Parler?s account.

As for Amazon treating Twitter differently? Turns out (beyond everything I mentioned above) there’s a bigger problem: Twitter doesn’t use AWS:

Parler?s Complaint is replete with insinuations that AWS had equal grounds to suspend Twitter?s account and thus discriminated against Parler. For example, Parler cites the hashtag ?#hangmikepence,? which briefly trended on Twitter. … But AWS does not host Twitter?s feed, so of course it could not have suspended access to Twitter?s content.

Finally, Amazon notes that Section 230 also protects its practices here:

In addition to their facial deficiencies, Parler?s interference and antitrust claims also fail under Section 230(c)(2) of the Communications Decency Act. Under that statute, the provider of an ?interactive computer service? is immune for acting in good faith to restrict access to material that is excessively violent, harassing, or otherwise objectionable.

This is actually interesting, in that rather than using 230(c)(1) like nearly every case, Amazon recognizes this is one of those rare (c)(2) cases, giving it the right to restrict access to violent, harassing, or otherwise objectionable content. This part of the law is rarely tested, as (c)(1) handles most moderation claims, but probably doesn’t fit here, given the fact that Amazon was denying overall service to Parler, not just moderating specific speech.

Parler’s going to lose this lawsuit. And it’s going to lose badly.

* In a very, very strange set of circumstances, there is another lawyer with the identical name, David J. Groesbeck, (including middle initial) who is a patent lawyer, also based in Washington state and registered to practice in NY, but they are different, and the patent lawyer (who does have a website) had to put a notice on his website saying he’s not the same David J. Groesbeck who has Parler for a client, and giving that lawyer’s phone number, since he’s being inundated with calls, yelling at him for representing Parler.

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Companies: amazon, parler, twitter

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Comments on “Parler's Laughably Bad Antitrust Lawsuit Against Amazon”

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41 Comments
Anonymous Coward says:

Daniel Fellner v Travel 4 All Seasons LLC ???

I don’t understand the relevance of the Fellner case. You have it embedded above Amazon’s reply to the motion for TRO.

Perhaps you meant to embed another document? Like Parler’s complaint or motion for TRO?

 

Incidentally, and fwiw, I notice that Parler has now filed its reply on the TRO motion. That was due today by noon PST, and wasn’t up yet when I checked earlier this morning.

This comment has been deemed insightful by the community.
Cdaragorn (profile) says:

Re: Re:

Being "ready and able" to use violence against others is not the same thing as "encouraging or inciting" violence against others.

I have never met anyone in the military of any branch that encourages the use of violence despite many people constantly trying to pretend that just maintaining the ability to use violence or even saying you’re willing to use it is somehow the same thing.

Anonymous Coward says:

Re: Re: Re:

I was going to comment on your blindness towards "encouraging or inciting violence" against approved military targets, but this is already a rabbit hole unrelated to the original topic.

I’ll only mention "encouraging or inciting violence against themselves" to point out that the "towards others" seems kind of unnecessary to the phrase.

Anonymous Coward says:

Re: Re:

Since AWS has contracts with the military and I’m sure the military, is an organization that "encourages or incites violence against others", do you think that they have different TOS?

Yes, they do. Amazon has different contracts in a number of government and specialist areas that are different from their usual TOS.

Having said that, they still do have restrictive language in their other contracts as well; there’s certain stuff that’s just not allowed on AWS/S3, even if it’s being used for good instead of evil.

Anonymous Coward says:

Re: Re:

The US emphasizes civilian control of the military for good reason. Stupid and bad a defense as it sounds they just carry out the violence instead of encouraging it. Practically they almost certainly have a different contract just from the sheer military acquisitions contracting bureaucracy and requirements. For one I could see hard requirements for termination delay of multiple months if not years in addition to penalties.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

It gets better

As Amazon notes in their response Parler’s own words shoot their arguments in the back.

Regarding the ‘harm’ of Amazon pulling service and the necessity of a TRO preventing that from happening:

‘Finally, Parler’s allegations of harm contradict its own public statements. Parler’s CEO has assured users that Parler “prepared for events like [the termination] by never relying on amazons [sic] proprietary infrastructure,” that the site will be fully operational “with less then [sic] 12 hours of downtime” after termination, and that Parler has “many [companies] competing for [its] [hosting] business.” Doran Decl. Exs. J-K. Accordingly, the balance of the equities and public interest weigh strongly against the issuance of any injunction.’

And when it comes to Parler’s claims that they quickly take down ‘problematic’ content and therefore Amazon was being unreasonable:

Parler itself has admitted it has a backlog of 26,000 reports of content that violates its (minimal) community standards that it had not yet reviewed. Id. Parler’s own failures left AWS little choice but to suspend Parler’s account.’

Not only is it a terrible lawsuit that I expect will be laughed out of court the biggest counters to Parler’s arguments will be their own words and stance towards moderation, which is just priceless.

Anonymous Coward says:

Re: It gets better

Parler has “many [companies] competing for [its] [hosting] business.” Doran Decl. Exs. J-K.

This is actually prompted by PaulT’s comment response to that in the previous thread.

I’d be interested in seeing the list.

Exclusive: Parler CEO says social media app, favored by Trump supporters, may not return”, by Elizabeth Culliford, Reuters (via Fox), Jan 13, 2021

“It’s hard to keep track of how many people are telling us that we can no longer do business with them,” said Matze.

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Anonymous Coward says:

Re: Re: Re: It gets better

One second, I need to remember where I put the nano-violin…

To the tune of the world’s smallest violin

First they came for 8chan and I didn’t care because they were internet trolls,

Then they came for Trump’s shitpost accounts and I didn’t care because they were full of shitposts,

Then they came for Parler and I didn’t care because it was catering to a bunch of insurrectionists,

Tune ends abruptly

Eventually they came for Techdirt because it dared say something that Hollywood / Some Idiot Politician / Etc. didn’t agree with, and there was no-one left to care for me.

Be careful for what you wish for, because you might just get it.

romeosidvicious (profile) says:

Re: Re: Re:2 It gets better

This is the exact free market that the right advocates, they claim that anyone can refuse service to anyone (see: cakes and gay people) right up until it affects them. The irony is thick here. Free association is just that. These companies have chosen to not associate themselves with a platform that allowed literal calls for violence, rape, insurrection, and so on. It’s a call that the right wing claims is allowed unless, apparently, it’s against one of their own darlings.

Yes the baker and gay people analogy is bad. It’s apples and oranges. LGBTQIA+ aren’t literally calling for others to be injured. I use it only to highlight the hypocrisy here.

It’s also completely ironic that the CEO of a platform that allowed calls for physical harm, death threats, rape threats, and more is now afraid to return to his home because of the very thing he allowed to be directed towards others. I abhor death threats but I’d be lying if I said I wasn’t amused at the poetic nature of what’s happening.

That One Guy (profile) says:

Re: Re: Re:2 'First they came for the government, and we slapped them down'

Trying to use a poem that was against fascists and how it was bad to ignore it when they went after people to defend fascists and argue it’s bad when people don’t ignore them… it’s a little late but someone sure seems to be trying for funniest of the week.

Bloof (profile) says:

Re: Leave Parler alone.

They still have 4chan, Reddit and Facebook. Yes, I know Reddit and Facebook supposedly cracked down, but Reddit are already quietly unbanning propagandists and will soon goi back to ignoring all the hate subs, and Facebook, well, a literal genocide didn’t make them change for the better long term, this sure as hell won’t.

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Whoever says:

Re: Leave Parler alone.

Its a great way to track whats happening in that world.

Maybe, but this is just the twitching of the dead carcass of Parler. Parler is gone. It is never coming back. There is no reason for the Mercers to spend any more money on it. Instead, they will help create some new outlet for insurrectionists to congregate on.

PaulT (profile) says:

These people love to throw around antitrust, but I don’t think that the cloud services market counts as any kind of monopoly. At a quick glance on Wikipedia AWS has 33% of that market (Microsoft has 18%, Google has 9%), and anything they do can be done without cloud services or by rolling your own cloud platform.

I’m no expert here, but doesn’t antitrust require that you hold a dominant monopoly position, thereby making a 1/3 share with strong competition inapplicable?

"But AWS does not host Twitter’s feed, so of course it could not have suspended access to Twitter’s content."

Even if they did, they wouldn’t have access to the platform on a granular level. They could restrict or take down Twitter as a whole, but it would not be possible for them to affect a single feed or account. Unless you expect Amazon to have root level access to any RDS or other database it hots, which would be way more problematic than anything presented here.

Anonymous Coward says:

Re: Antitrust [was ]

… doesn’t antitrust require…

There’s a distinction between § 1 Sherman Act [15 USC § 1] and § 2 Sherman Act [15 USC § 2].

The latter begins—

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations . . .

Parler’s claim, though, was brought under § 1 Sherman Act, which begins—

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. . . .

Here’s a very brief intro to restraint of trade from FindLaw. That article is too short to really discuss ‘requirements’, and the more I read it, the less I like it. But it was what I found with a quick google, and it’s the only result in the first few pages that seems to hit the right level to get you started.

Going just a little bit deeper into § 1 Sherman Act, DoJ emphasizes that for per se violation, such as horizontal price fixing—

Agreement Is Key. The agreement is the essence of a Section 1 violation.

Tanner Andrews (profile) says:

Re: Re:

Unless you expect Amazon to have root level access to any RDS or other database it hots

Of course I expect that. They may expose a virtual machine to the user, but somewhere in the data center is some physical machine to which they have physical access. Also, no doubt they have some form of remote access to the actual machine, from which they can control the myriad virtual machines.

That level of access means that, in effect, they have at least root level access to the virtual machines inside their physical machines.

PaulT (profile) says:

Re: Re: Re:

There’s a few problems with what you’re saying. First, you’re referring to machines whereas I was referring specifically to databases. There’s no use case where Amazon would need to have access to the actual data on a customer’s database under normal daily operation. They provide a system on which databases can be operated, they have no need to access that actual database structure for this.

But, even with virtual machines, there’s no need for Amazon to have any direct management control, and their security is fairly tight. For example, when you start up a virtual machine on EC2, it can initially only be accessed with the key pair you specify when creating the machine. If you lose that key pair, Amazon don’t have access to it and can’t give it to you again. If you need to regain access, you need to create an image of the instance and launch it as a new instance with a new key pair.

Amazon have no need to have any of the connection details for your server, which is good security practice, and they have no need to access any individual customer’s data to carry out their role. This is as it should be, otherwise it’s asking for some major trouble (for example, can you imagine if Amazon had access to the customer databases of competing retailers that host on AWS, or if they had root access Netflix’s infrastructure on there?)

"Also, no doubt they have some form of remote access to the actual machine, from which they can control the myriad virtual machines."

Yes, they have access to the actual physical servers, on top of which they will be running some kind of hypervisor to manage a range of virtual machines, on top of which they will be running the database provision and/or individual virtual servers for customers. They don’t need to access anything on a higher level than their own virtual machines.

"That level of access means that, in effect, they have at least root level access to the virtual machines inside their physical machines."

Their virtual machines, not the customers machines running on top of them. The system is generally designed so that nobody can gain access to individual customer machines without alerting a customer, as it should be.

PaulT (profile) says:

Re: Re:

"Well banning Parler seems to have sent the extremists underground to places like Telegram,"

Well, that’s not really "underground" if authorities and the press are both aware of it and able to track/monitor posts. The point here isn’t to pretend they don’t exist, the point is to keep them away from the mainstream and to allow platforms that don’t want them to be able to have their right to free association.

"where they are planning armed civil war, if anyone cares."

They’ve been doing that for a while. The question is whether you treat them lightly as they were treated on the 6th, or whether action is taken at least on the level of "unarmed BLM protest in the way of a church photo op". I think that given recent events, they will be taken seriously.

Mike says:

Thought they were special

Regardless of where you stand on Parler, the hilarious part is that by the time Parler was gaining momentum, they had years of Gab’s experience to use as a reference for "what comes next." Asking the Mercers for $2M to buy some real estate and park a ton of servers in it would have been totally legit.

But as we see with Matze, he’s like "I believe in freedom of speech! Also, I believe I should be allowed to ban users who question my ToS!" I mean yes, you can get all pedantic about the 1A here, but come on. Freedom of speech is as much a cultural value as a legal one, and the CEO never understood things like "no, banning users over trivial things really is a bad look for Parler."

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Ruben says:

–The Techdirt Team

You are wrong. You pointed out section 230, where as AWS wants to use it avoid any lawsuits. But explain to me how is AWS able to use 230 to justify its actions while allowing other clients such as Twitter to continue with allowing of inciting other violence and also uses that same rule to counter on a lawsuit? You can’t have it both ways. All Parler needs is a judge to rule in their favor whether they’re wrong or not.
Also, I’m Mexican-American, brown AF, so am I an extremist for using Parler? BLM and ANTIFA literally destroyed communities and they used Twitter, FB, and other social media outlets, but AWS took no action against them. Discrimination doesn’t only apply to gays and blacks, it also applies to companies.

PaulT (profile) says:

Re: –The Techdirt Team

"AWS able to use 230 to justify its actions while allowing other clients such as Twitter"

Section 230 enables them to make their own decisions as they wish. That’s the point. They have many competitors if you want to take your business elsewhere, and there’s plenty of worse examples of companies being inconsistent with the way they applied their rules (Parler, for example).

Also, despite the muddying of the waters from people desperate to pretend there’s a big conspiracy, Amazon have only just signed an agreement with Twitter. If they give the same leeway they gave to Parler, it will be months before they make any decisions.

"Also, I’m Mexican-American, brown AF, so am I an extremist for using Parler?"

You’re pretty dumb if your preferred platform is the one that openly courts white supremacists, and lets them run wild while censoring dissenting liberal voices, but that’s your choice.

"they used Twitter, FB, and other social media outlets, but AWS took no action against them"

Get out of the right wing cesspools and deal with reality for a moment. What action could AWS possibly take against Facebook? Read up on some actual details, you’ll be surprised at how dumb you sound.

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