Amazon Responds to Parler's Lawsuit

I figured people would be interested to see Amazon's response to Parler's lawsuit. I'm not an antitrust or contract lawyer so I have no real commentary to provide. But it does seem that Parler fucked itself in a few ways.

Amazon describes the agreement that Parler entered into (back in June 2018):

Parler accepted the terms of the AWS Customer Agreement. Id. Ex. A. The Agreement requires that Parler “ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law,” and makes clear that Parler is “solely responsible for the development, content, operation, maintenance, and use of” the material on its service. Id. § 4.2; see also id. § 4.5 (“You will ensure that all End Users comply with your obligations under this Agreement ....”). The Agreement also requires Parler to “immediately suspend access” to content that it learns violates its obligations under the Agreement. Id. § 4.5.

and

The Agreement further makes clear that AWS may suspend or terminate an account “immediately” upon notice if AWS determines that an end user’s use of the services “poses a security risk to the Service Offerings or any third party,” or otherwise breaches the Agreement.

The response then describes that as early as November 2020, Amazon contacted Parler and asked them to better explain their content moderation policy.

For a platform specifically dedicated to not moderating user content, I'd be curious to find out more as to why Parler didn't choose a more laissez-faire service provider.

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.

and

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. Mot. ¶ 4. But AWS does not host Twitter’s feed, so of course it could not have suspended access to Twitter’s content.

Parler's CEO appears to have shot himself on the foot by simultaneously accusing Amazon of antitrust violations, but then also:

That evening, Parler’s CEO posted that “[w]e should be operational within less then [sic] 12 hours of downtime after Amazon abruptly pulls our access.” Doran Decl. Ex. K. He also posted that Parler had “prepared for events like this by never relying on amazons [sic] proprietary infrastructure and building bare metal products.” Id. Ex. J.

My hunch is that this lawsuit is unlikely to be the vehicle to challenge Big Tech hegemony primarily because the facts don't seem to align well with the cause of action.

But is it fair to expect something other than this contract given the relative power that established institutions wield with contracts of adhesion? For those that don't know, contracts of adhesion are basically "take it or leave it" standardized offers. When you sign up for a bank account, there is no world where you will have the opportunity to negotiate individual clauses of the 96 page terms of service contract. There's a good reason for that, they've already spent a boatload of money on compliance attorneys, they're not going to be bothered to consult with their lawyers over the concerns of an inconsequential customer. And the corporations also don't want to deal with non-uniformity. If their standard contract has a 30-day arbitration clause, it gums up the works to remind everyone of the carveout that Shannon's Ice Cream Shop has with regard to that rule.

I'm sympathetic to the concerns that contracts of adhesion entail (I've had to deal with those issues myself), but I just don't see how it applies here. Parler was marketing itself as a viable alternative to Twitter. It was backed up by some significant money. It's a super lame excuse to just throw in the towel and claim there was no way to find a provider that wouldn't axe them for their content moderation policy when the entire basis of their business is how different their approach to content moderation is. Parler themselves claimed that they set things up in such a way to not be dependent on AWS. So I think there'd need to be more evidence to conclude they were helpless.