How Section 230 might not help Amazon in the Parler lawsuit


Parler sued Amazon [PDF of complaint] yesterday alleging three things: antitrust violations, breach of contract and tortious interference. Each of these claims relates to Amazon’s decision to kick Parler off of AWS servers. To use Section 230’s language, Amazon took action to “restrict access to or availability of material.”

That language comes from Section 230(c)(2), which reads more fully as:

No provider . . . of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Section 230

Said more plainly, a company in Amazon’s position should not face legal trouble if it acts in good faith to take down material that it thinks fits into certain categories of bad – even if removal of the material would violate a person’s free speech interests.

It is easy to see how Amazon might claim this form of Section 230 immunity to defend itself from Parler’s claims. (Please note that this is a separate issue from whether Parler’s claims are any good on their merits. Amazon will have good defenses other than Section 230, but we are not talking about those right now.)

So why might Section 230 not help? For one, a court may find that Amazon did not act in good faith. Second, material taken down may not fall into one of Section 230(c)(2)’s listed categories of bad.

Key to evaluating both of these issues is that Amazon kicked all of Parler offline, not just particular pieces of content that were bad. Among the material removed was content that was entirely benign. I posted there, and I know what I put up was entirely lawful and friendly. I do not have data as to what portion of Parler content was truly awful versus what was lawfully disagreeable. (Perhaps the hackers who may have violated the Computer Fraud and Abuse Act will compile this for us.) But I would venture to guess the really bad stuff (that is, stuff that was excessively violent, filthy, etc.) was just a small fraction of Parler. Does Amazon’s ham-fistedness in taking down the entire platform in these circumstances fit within what we mean by “good faith”? That is a good question for litigation.

As for the question of whether the material taken down actually falls within one of Section 230(c)(2)’s categories of bad, we can look to what the Ninth Circuit said in Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040 (9th Cir. 2019), in which the court held that Section 230 did not immunize an anti-malware software provider that flagged a competitor’s software on the basis of it being “otherwise objectionable”. This anti-competitive activity could not be the kind of conduct that is “otherwise objectionable” and supportive of immunity.

In this case, to the extent Parler can show that Amazon is motivated by marketplace reasons hostile to Parler (e.g., did Twitter try to persuade Amazon to take Parler down?), the court may not agree that Parler fits into any of Section 230(c)(2)’s bad categories, including being “otherwise objectionable”.

About the author: Evan Brown is a technology and intellectual property attorney in Chicago. This post originally appeared on evan.law.

The post How Section 230 might not help Amazon in the Parler lawsuit appeared first on Evan Brown.


Tags: Amazon, Law, Chicago, Computer Fraud and Abuse Act, Ninth Circuit, Said, CFAA, Evan Brown, Section 230, Parler, Malwarebytes Inc, Computer Crime, Enigma Software Group USA LLC

Source:  http://evan.law/2021/01/12/how-section-230-might-not-help-amazons-defense-in-the-parler-lawsuit/



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