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Court denies Parler request for injunction against Amazon Web Services

Court denies Parler request for injunction against Amazon Web Services

“[T]he evidence at this point suggests that AWS’s termination of the CSA was in response to Parler’s material breach. Parler has therefore not demonstrated a likelihood of success on this claim.”

https://www.youtube.com/watch?v=7fyGQttLDjo

Amazon Web Services took down Parler from its cloud service, allegedly based on threats on the Parler platform, mirroring simultaneous actions by Google and Apple to remove the Parler App.

As previously documented, this appeared to be a pretext as part of a larger anti-Trump effort, The claim that Parler represents some unique risk to public safety is a lie driven by politics.

Parler sued AWS. You can find all the pleadings, affidavits, and other court submission in this post, Parler CEO: Unclear when will be back, sues Amazon Web Services for website takedown (Updates).

Argument on the Motion for a Temporary Restraining Order was held on January 14. It was a bad sign for Parler when it sought immediate emergency injunctive relief, and according to news reports, the judge indicated she was not in a rush to rule.

The federal judge in the Western District of Washington just ruled (Order), denying a preliminary injunction.

MORE TO FOLLOW.

Excerpts from the Order:

It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights, which exist only against a governmental entity, and not against a private company like AWS. And indeed, Parler has not disputed that at least some of the abusive and violent posts that gave rise to the issues in this case violate AWS’s Acceptable Use Policy. This motion also does not ask the Court to make a final ruling on the merits of Parler’s claims. As a motion for a preliminary injunction, before any discovery has been conducted, Parler seeks only to have the Court determine the likelihood that Parler will ultimately prevail on its claims, and to order AWS to restore service to Parler pending a full and fair litigation of the issues raised in the Complaint. Having reviewed the briefs filed in support of and opposition to the motion, and having heard oral argument by videoconference, the Court finds and rules as follows.

* * *

At this stage in the proceedings, Parler has failed to demonstrate that it is likely to succeed on the merits of its Sherman Act claim. While Parler has not yet had an opportunity to conduct discovery, the evidence it has submitted in support of the claim is both dwindlingly slight, and disputed by AWS. Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally—or even at all—in restraint of trade….

* * *

The gravamen of Parler’s breach of contract claim is that AWS terminated the Agreement without providing Parler 30 days to cure any alleged material breach 2….

[fn 2 AWS denies that it “terminated” Parler’s account, claiming it merely “suspended” its services. Opp. Br. at 6. As discussed below, the distinction is not material to Parler’s claim at this stage, however, as the CSA grants AWS the authority to take either action under the same circumstances. See CSA, §§ 6, 7.2(b)(ii).]

… In short, the CSA gives AWS the right either to suspend or to terminate, immediately upon notice, in the event Parler is in breach….

Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of contract claim.

There is no mention in the Order that AWS submitted any evidence that activity on Parler caused the Capitol Hill riot, but the Judge nonethless raised that possibility in addressing whether the equities favored Parler:

The Court explicitly rejects any suggestion that the balance of equities or the public interest favors obligating AWS to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol. That event was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection. The Court rejects any suggestion that the public interest favors requiring AWS to host the incendiary speech that the record shows some of Parler’s users have engaged in. At this stage, on the showing made thus far, neither the public interest nor the balance of equities favors granting an injunction in this case.

Let this be a lesson. The Capitol Hill riot will be exploited not just politically, but also judicially even as to people and entities not responsible for it.

The Court concluded:

Parler has failed to meet the standard set by Ninth Circuit and U.S. Supreme Court precedent for issuance of a preliminary injunction. To be clear, the Court is not dismissing Parler’s substantive underlying claims at this time. Parler has fallen far short, however, of demonstrating, as it must, that it has raised serious questions going to the merits of its claims, or that the balance of hardships tips sharply in its favor. It has also failed to demonstrate that it is likely to prevail on the merits of any of its three claims; that the balance of equities tips in its favor, let alone strongly so; or that the public interests lie in granting the injunction.

AWS signed a big hosting deal with Twitter, the place where it is documented some of the organizing of the Capitol Hill riot took place.

According to the criminal complaint, Sahady is the vice president of an organization called “Super Happy Fun America,” which allegedly purports to advocate for the “straight community.” Beginning on approximately Nov. 16, 2020, Sahady tweeted statements exhibiting a belief that the presidential election was stolen, and that people need to gather in D.C. on January 6, 2021 to respond. Photos posted on a Twitter account connected to Super Happy Fun America show Sahady on a bus with other individuals with the caption, “Bus 1 of 11 coming to Washington DC. See you there!”

According to the criminal complaint, Ianni is also involved with “Super Happy Fun America.” The complaint alleges that Ianni organized buses for Super Fun Happy America to transport individuals to Washington D.C. for the January 6, 2021 event. Ianni is pictured alongside Sahady in the bus photo on Twitter. Following the Capitol breach, the public and media posted photos and identified people who were at the riot and entered the Capitol. Photographs show Sahady and Ianni standing next to each other inside the U.S. Capitol during the breach.

Yet AWS has not closed Twitter’s use of its hosting platform.

——————-

Parler v. Amazon Web Services – Order Denying Preliminary Injunction 1-21-2021 by Legal Insurrection on Scribd

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Comments

2smartforlibs | January 21, 2021 at 3:46 pm

So why is it we have courts again? Parler has found other web services.

    Dathurtz in reply to 2smartforlibs. | January 21, 2021 at 4:19 pm

    So people can pretend like everything is fine until it is too late to do anything about it.

    You mean why do we have *contracts* if courts will not enforce them?

    It appears (to this non-lawyer) that Parler wrote its contract with AWS with the understanding that if there was some sort of dispute, they’d have 30 days to change vendors before AWS cut them off.
    -Then there was a dispute.
    -And AWS cut them off cold.
    -“But wait,” called out Parler “we had a deal. In writing.”
    -“Fools” scoffed AWS. “We did not cut you off. We merely suspended services.”

    Seems the proper role of the courts in this case is to say AWS is attempting a distinction without a difference, i.e. they can paint their cutoff purple with green spots, but it’s still a cutoff, and AWS should have to cough up substantial cash for them breaching the contract. (Yeah, call me naïve)

      Evil Otto in reply to georgfelis. | January 21, 2021 at 6:44 pm

      Amazon: “I am altering the deal. Pray I don’t alter it any further.”

        JusticeDelivered in reply to Evil Otto. | January 21, 2021 at 9:58 pm

        I initiated closing one Amazon account a week ago. Amazon is weaseling, if the courts will not hear virtually any of these cases, then citizen action, as in tens of millions walking away from Amazon, is what it will take to punish them. #BoycottAmazon I am doing so.

        felixrigidus in reply to Evil Otto. | January 22, 2021 at 3:25 am

        Wrong movie quote. After all, Darth Vader could be redeemed.

      You’d think a failing 1st year law student would understand the distinction. Apparently, for a U.S. Federal judge, it’s above her paygrade.

    If you actually receive justice from a court of law, it’s a fluke.

    JusticeDelivered in reply to 2smartforlibs. | January 25, 2021 at 11:57 am

    In this case to collect damages, hopefully enough that Amazon cries.

Punishment is the process. If you applied the same standards to the other platforms they would all fail on any reasonably objective moderation test that didn’t discriminate against the right.

I’ve been to the dark side. I was the controls systems lead technician for the Amazon “Make on Demand” facility here in Columbia, SC until December 8. I walked off the job in protest. I went “Galt” on them, and it was liberating!
I’ve never been so compelled to do that until now.
Screw Bezos, and this entire idea of “equity”.

Separate social media, separate news media, separate economies, separate morals, ethics and civics. Separate countries in the end.

The courts have failed us.

She took her sweet time when clearly she had made up her mind at the outset.
It is almost as if she wanted to run down the clock so Parler would suffer enormous damages before they can seek review of her decision. Emmett Sullivan did the same thing. Run down the clock to do maximum damage.

caseoftheblues | January 21, 2021 at 4:28 pm

Don’t bother seeking justice in America any longer…

This is what’s called a “Kangaroo Court”.

This is the court system of the Junta we now live under. We don’t have to live under it: we can get the hell out of it.

We truly live under a Junta, and the likes of John Roberts and Mitch McConnell are hiding in the corners of their offices like scared rabbits.

While we work on that, abandon all trust in anything “government”, “courts”, etc. We can only trust ourselves.

It has become imperative we do not intentionally or inadvertently fund any business doing the Junta’s bidding, such as Google, Facebook, Twitter, Amazon, Netflix, Apple and the like (this includes banks refusing to do business with . Each of us must make a list of Junta-complicit companies we will not do business with, and take it very seriously.

Florida bank says it has closed Trump’s accounts:
https://thehill.com/policy/finance/banking-financial-institutions/535282-florida-bank-says-it-has-closed-trumps-accounts

Our government agencies are agents of the Junta ruling our country. The likes of Christopher Wray still head the FBI, staining that organization into being a bad joke, and one none of us can trust.

We have to live amongst ourselves in a very insular way that we are not used to (the left is: they’ve cloistered themselves very carefully, and used that cloistering to exclude the rest of us from teaching positions, positions in certain industries and the like).

Welcome to life under the de facto rule of Communist China. It’s not going to be easy to survive or get away, but fighting for one’s freedom never is. We took our freedom for granted all our lives. Those days are over.

    SpaceInvader in reply to TheFineReport.com. | January 21, 2021 at 6:40 pm

    All the large companies are leftist. The best thing you can do is buy locally produced goods and services. Don’t just go to a local store that buys it’s stuff from a national distributor. Actually buy goods produced entirely in your community even if you have to pay more for them. I would also look for ways to barter or not use the dollar. When the system collapses those who are outside the system will have the easiest transition time.

    JusticeDelivered in reply to TheFineReport.com. | January 21, 2021 at 10:05 pm

    Regarding banks, if you have to use a bank, stick to smaller regional banks, better yet use a credit union.

    Three banks have closed Trump accounts, both business and personal, and his business insurance broker (and probably his insurance company too) dropped him. If his company doesn’t have bank accounts it can’t pay its debts or its employees. If it doesn’t have insurance it’s almost certainly in default on its debt obligations even if payments are current. Make no mistake, this is an attempt to bankrupt Trump.

Add to that, Rep. Maloney from NY (husband killed in gun free subway shooting in NYC) has requested the FBI investigate Parler’s actions to coordinate the attack on Capitol and ties to… tah dah… Russia.

    Read some time ago Antifa calls to the Jan 6 rioting on Twitter and Facebook were all legal, kosher and not questioned at all.

“There is no mention in the Order that AWS submitted any evidence that activity on Parler caused the Capitol Hill riot,…”

Of course not. Evidence is not required to impeach the POTUS, so why would evidence be required in ‘lesser’ proceedings?

so she allowed the shutdown silencing people that used it as it was.
so a government entity killed some users free speech.
yeah I know HELL of a stretch but whatever. at this point I don’t care.

Courts all seem to have joined the Leftists in total discrimination against Conservatives. So it’s open lawfair.

IMO, and there are many who disagree, the ‘internet’ broadly has become a public accommodation. This shouldn’t be limited to simple things like a personal Twitter account. It should be including financial services, delivery services ECT.

If a corporation (s) have a monopoly status with the effect that they could impose an ’embargo’ on any person or entity for what are lawful acts or common speech then they must not be allowed to utilize their power to destroy. My opinion.

Amazon is attempting to do to Wal-Mart what Wal-Mart did to the small town retailer; put them out of business. To a point that’s capitalism and that’s fine. When a single entity is the only game in town in practice if not quite literally then they are a monopoly and must either stop engaging in monopolistic practices or be broken up into smaller competing entities.

To say that Amazon can simply shut off services to Parlor means that you are taking the position that the hosting provider owns/controls the content of Parlor. Logically then, it is AWS not Parlor at fault for inappropriate content uploaded by an individual.

    daniel_ream in reply to CommoChief. | January 23, 2021 at 5:43 am

    the ‘internet’ broadly has become a public accommodation.

    “The Internet” is not four web sites. It isn’t even the world wide web.

    The Internet is not a “public accommodation” for the same reason your telephone or cell phone isn’t, but it is a common carrier.

    If a corporation (s) have a monopoly status with the effect that they could impose an ’embargo’ on any person or entity for what are lawful acts or common speech

    Amazon does not even remotely have a monopoly on cloud hosting.

    Amazon is attempting to do to Wal-Mart what Wal-Mart did to the small town retailer

    In 2017, Amazon bought Whole Foods, putting them in direct competition with Wal-Mart. Wal-Mart responded by telling all of its partners/suppliers/etc. that Wal-Mart would not do business with them if they were doing business with Amazon – which included hosting any of their IT infrastructure on AWS. That single act accounted for nearly the entirety of Microsoft’s Azure Cloud Service’s growth over the next three years.

    It’s a pretty blatant monopolistic act by Wal-Mart.

    When a single entity is the only game in town in practice if not quite literally then they are a monopoly

    Not only is AWS not a monopoly – there are about half a dozen Tier 1 public cloud providers, and dozens of Tier 2 and Tier 3 – there exist free and open tools that make migrating an entire application hosting infrastructure from one cloud provider to another a matter of minutes. Spreading your hosting across multiple vendors is in fact part of the standard “best practices” for any web application you care about.

    To say that Amazon can simply shut off services to Parlor means that you are taking the position that the hosting provider owns/controls the content of Parlor.

    No, and that makes no sense. AWS can shut off services to Parler because the contract Parler signed with AWS says AWS can.

    The problem here is that Parler’s technical staff went all-in on AWS with no plan for what they would do if AWS went down. That’s called vendor lock-in, and forget the political element; there have been enough technical “oopses” at AWS, Azure and the other Tier 1 cloud providers over the years that any tech team that didn’t plan for an eventual provider-wide outage is incompetent and should be replaced. Also, Parler went along with the “free account” TOS instead of negotiating a custom contract with AWS, something any serious business outsourcing their hosting infrastructure does.

    While what AWS is doing is a massive dick move, Parler’s problems are largely a result of their own naivete and inexperience operating a web-based business. Minds, for instance, has released a public statement indicating that they cannot be cancelled because they have invested in a vendor-independent and portable architecture that has been deployed on multiple clouds.

The truth is whatever the radical Leftwing Dems and media say it is. The courts and government bureaucrats will at best not challenge it and at worst enthusiastically agree.

What happens when half the country wakes up and recognizes this cold hard reality and doesn’t think this is the way it should be?

Thinking this implies that Amazon should be sued for not suspending service to Twitter and Facebook under this standard. If they are liable for one, they are liable for the other.

Sadly, it seems very necessary to point out that the First Amendment does not grant any rights. It merely protects them against government action.

Governments are instituted among Men to secure these rights, which is why the Bill of Rights only needed to protect the rights against the government itself.

The failure to accept this basic concept leads to injustice like the one perpetrated by this Carter appointee.

    This is more like a company town shutting down any so each it doesn’t like because the town square is “private property”

    practicalconservative in reply to felixrigidus. | January 22, 2021 at 6:58 pm

    If you permit oligarchies to collude to preclude meaningful speech at the behest of a political party the First Amendment is effectively dead.

A collusion between Amazon, Apple, and the Alphabet umbrella corporation? Resident evil.

Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally—or even at all—in restraint of trade…

Submit videotape or it didn’t happen? This isn’t a murder trial.

    tbonesays in reply to randian. | January 22, 2021 at 3:37 pm

    If two to five giants acting in concert to stamp out the upstart competitor doesn’t equal “restraint of trade”

    then what would it take?

    daniel_ream in reply to randian. | January 23, 2021 at 5:57 am

    The problem is that it’s very likely that there was no collusion, at least not in the way antitrust law generally understands the term. Nobody at Twitter privately called up anybody at AWS and said “hey, cut off this competitor of ours”.

    The nature of social media and the outrage-amplification feedback loop means that it is only necessary for the directors of Twitter and AWS to share broadly similar values, and for thousands of angry blue-haired lesbians[1] to scream bloody murder about Parler on various forms of social media. The directors of AWS see the accusations and pre-emptively act to cancel Parler with no direct communication between anyone at Twitter and AWS ever occurring.

    It is a very real weakness of current antitrust law that it simply has no way of handling a phenomenon like this. It was written at a time when collusion happened for obvious financial gain and had to be conducted via private channels. What we have today is the rough equivalent of the New York Times publishing an interview with the President of Standard Oil where he says “oil should be $200 a barrel for the good of all Americans” and Royal Dutch Shell reading it and saying “sounds good to us”.

    [1] by which I mean a half dozen bots impersonating thousands of angry blue-haired lesbians

No surprise there. Courts have been routinely siding with the Left. We saw strong evidence of that in the recent fraudulent election.

Leftists have a long history of running to the courts for injunctions against anything that they don’t like. Having done this so many times, they are well-practiced in making successful filings. Rightists, on the other hand, do not usually run to the courts for injunctions against things they don’t like. As a result, there apparently isn’t a rightist lawyer in the nation who knows how to even file for standing in a case.

Two lessons from this:
1) the great program of seating conservative judges was a farce
2) try not to file in courtrooms under Carter-appointed judges. They’re old

This is what a Democrat judge looks like by definition. They are just political hacks by design.

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