{"id":8225,"date":"2021-02-04T22:55:53","date_gmt":"2021-02-04T22:55:53","guid":{"rendered":"http:\/\/ncjolt.org\/?p=8225"},"modified":"2021-02-04T22:55:53","modified_gmt":"2021-02-04T22:55:53","slug":"parlers-suit-against-amazon-should-we-have-to-rely-on-amazon-enforcing-a-private-contract-to-ensure-public-safety","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/parlers-suit-against-amazon-should-we-have-to-rely-on-amazon-enforcing-a-private-contract-to-ensure-public-safety\/","title":{"rendered":"Parler\u2019s suit against Amazon \u2013 Should we have to rely on Amazon enforcing a private contract to ensure public safety?"},"content":{"rendered":"\n

After the extraordinary events unfolded on the Capitol Hill on January 6, many tech companies sprang into actions. Among them was Amazon Web Services taking Parler offline with less than thirty hours of notice,effective midnight January 10. In Amazon\u2019s notice to Parler, Amazon said the reason for its action was \u201c[b]ecause Parler cannot comply with our terms of service and poses a very real threat to public safety.\u201d<\/a><\/p>\n\n\n\n

       Uproar by Parler\u2019s users and supporters ensued. Parler brought a suit against Amazon the very next day for injunctive relief, asking the Court to order Amazon to reinstate Parler\u2019s account. Parler made claims against Amazon on three counts: 1. Antitrust claim under the Sherman Act that Amazon contracted or conspired with Twitter to restrain trade; 2. Amazon breached contract because the suspension was really a termination and it failed to provide the thirty-day notice before termination as required by the contract; 3. Amazon tortiously interfered with the contracts Parler had with its present and potential future users. Amazon responded the next day with its rebuttal of all three claims, and on top added Section 230 as a shield that it said protected it from the interference and antitrust claims. <\/p>\n\n\n\n

        The reporting on Parler\u2019s lawsuit against Amazon has focused mainly on the antitrust claim. Some<\/a> have concluded that it is a weak claim. To establish the antitrust claim, Parler<\/a> and Amazon<\/a> seem to agree that the following elements need to be satisfied: 1) the existence of a contract, combination or conspiracy; 2) which is intended to restrain trade and 3) actual injury to competition. It appears that Parler did not allege sufficient specific facts to satisfy these elements. The only facts Parler presented were that Amazon entered into a multi-year deal with Twitter a month ago and Parler\u2019s own belief that Amazon treated Twitter more favorably. Amazon not only denied these allegations entirely, it also asserted that Parler did not plead enough facts to meet the pleading requirements established by the famous antitrust case Twombly<\/em><\/a>. <\/p>\n\n\n\n

“Parler cannot comply with our terms of service and poses a very real threat to public safety.\u201d<\/p><\/blockquote>\n\n\n\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Parler\u2019s stronger claim may be the breach of contract claim. At the outset, there seems to be a dispute about whether Amazon\u2019s action was a termination or a suspension. Parler deems Amazon\u2019s action a termination, while Amazon insists it was merely a suspension. In Amazon\u2019s notice to Parler<\/a>, Amazon said it \u201cplan[ned] to suspend\u201d the account. However, Parler pointed to language in the notice which said Amazon had preserved all Parler\u2019s data and would help Parler migrate the data to its own servers as proof that the action was a permanent termination even though Amazon used the word \u201csuspend\u201d<\/a>. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 If Amazon\u2019s action is a termination of the account, Parler has a strong claim that Amazon did not comply with the thirty-day notice requirement for termination. If it is only a suspension, then Parler\u2019s case is weaker, it needs to amend its claim to argue that it is an improper suspension. According to Amazon, the contract explicitly gives it the right to immediately suspend Parler\u2019s account if it fails to immediately eliminate content that \u201cmay be harmful to others\u201d<\/a>. Amazon focused its argument on how Parler violated the contract terms by failing to eliminate the harmful posts timely after several warnings and reasoned that Amazon by contract terms had the right to suspend Parler\u2019s account immediately. It seems Parler could raise some arguments as to whether the contract term content that \u201cmay be harmful to others\u201d<\/a> is too broad, and in turn whether allowing immediate suspension of the account when Parler failed to eliminate the content immediately is reasonable given the significant harm a suspension could cause Parler.<\/p>\n\n\n\n

            Although Parler\u2019s antitrust claim may be \u201chollow<\/a>\u201d because of the lack of specific facts, the intuitive antitrust related questions this case triggers may be valid, such as whether Amazon has too much power over Parler and whether it has used its power unreasonably. Several factors contribute to Amazon\u2019s power over Parler. First, cloud services are becoming a vital service for many platforms as they move away from the old business model of building their own storage facilities. Also, Amazon Web Services controls more than 30% of the global cloud services market<\/a>. Further, Parler said in its complaint that \u201cboth [its] apps and website were written to work with AWS\u2019s technology\u201d<\/a> indicating there are substantial switching costs. It could be argued that these three together makes Amazon\u2019s services essential to Parler\u2019s business, like utilities to a factory. If something is essential like utilities, should it be regulated like utilities?<\/p>\n\n\n\n

\"\"<\/figure><\/div>\n\n\n\n

             At the end of the day, probably the most disturbing question from this case is: Why had the responsibility and the ability to ensure public safety fallen largely on a cloud services company\u2019s private contract? When people think about ensuring public safety, they think about the government, not Amazon. Amazon could have chosen not to enforce the contract. But what would have happened if Amazon did not take Parler offline? Could the government or the court have stepped in to order Parler to eliminate the violent content or to go offline if the content is not eliminated, and could they have done so in a timely manner, or would the immunity under Section 230 have stood in the way? All this is uncertain. When issues of public concerns arise, the society should be able to use tools in its public toolbox to address these concerns rather than having to rely on a private party\u2019s choice to enforce its private contract.<\/p>\n\n\n\n

            As of January 17, Parler has found another provider to host its services and said it was confident that it would return by the end of the month.<\/a><\/p>\n\n\n\n

Ting Zheng & Alex Rutgers<\/strong><\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

After the extraordinary events unfolded on the Capitol Hill on January 6, many tech companies sprang into actions. Among them was Amazon Web Services taking Parler offline with less than thirty hours of notice,effective midnight January 10. In Amazon\u2019s notice to Parler, Amazon said the reason for its action was \u201c[b]ecause Parler cannot comply with …<\/a><\/p>\n","protected":false},"author":4,"featured_media":8226,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8225"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=8225"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8225\/revisions"}],"predecessor-version":[{"id":8227,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8225\/revisions\/8227"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/8226"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=8225"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=8225"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=8225"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}