The PopulistCast

I go over the pleadings in the Parler vs Amazon case and talk about a some of the other news of the day.

Show Notes

Thomas Talleyrand  0:02  
Hello, this is Thomas Talleyrand. And welcome to the populace cast. 

Thomas Talleyrand  0:07  
And here we go. Episode Two, we took a look at the Parler VS. Amazon Web Services complaint, the initial filing. Now we've had two more filings. We've had the response from Amazon, saying that they've done nothing wrong, they promise. And then they've had the response to that response from parler, where you can tell that they kind of held a few things back to let Amazon step in it. So first things first, according to Amazon, that it's parlor who's all in the wrong that parlor conducts the absolute minimum of content moderation. That parlor operates a social media service. This is reading section two, paragraph 25. Or line 25. Excuse me. parlor operates a social media service that has gained favor as an alternative to Facebook and Twitter. Partly parler prides itself on its hands off approach to moderating user content. borrowers homepage tells users to speak freely and express yourself openly without fear of being deep platformed for your views, somehow, this is evil. According to Amazon, the CEO says that he's gonna do what he says he's gonna do, which is try to give people his fair place to speak as possible. On June 12 2018, parlor signed up with AWS with which provides hosting and cloud computing services for businesses, nonprofit and the CIA. I mean, I'm sorry, and government organizations globally. There's a declaration from their executive that's supposed to mean something. There's a copy of their acceptable use policy, which they do not enforce. parlor repeatedly violates the agreement. They point out sometimes that they have pointed out things that needed to be taken care of. And they are indeed, in some cases, absolutely awful, and I believe parlor says that they will take care of those things and they're trying to AWS exercise its right to suspend parlors or count on January sixth 2021 rioters supporting president's efforts to overturn President Elect Biden's victory stormed the US Capitol. That whole sentence seems borderline perjury to me continuing on by people died, including a police officer who did not die from wounds from the Capitol. At least they're not sure of that yet. The FBI and other law enforcement agencies have since opened at least 25 domestic terrorism cases related to these incidents, there is no law for domestic terrorism.

Thomas Talleyrand  3:17  
There's only a law for other types of violence. This is also possibly illegal I don't know it to me, it seems like perjury, content encouraging violence and continue to grow rapidly after the events January 6, AWS reported additional examples of that content says that the executive spoke on January 9 2021, Apple and Google terminated Parler's account we know this that evening Parler she posted that he should be operational within less than six hours downtime. I do not understand what this matters. Just because they had a plan doesn't mean that that is good enough. You know, in other words, what partner is saying is well, there's no problem with this doing this. I guess they're trying to limit damages, because they could do something else, no matter if it costs them another $300 million to do that, or what the effort is that that takes forth, or whether that customer a lot of business doesn't matter because they can fix what we screwed up. It says that parler alleges no facts that could possibly support its claims for breach of contract. tortious interference with prospective economic damages, excuse me with prospective economic advantage or violation of the Sherman act. A temporary restoring or restraining order is an extraordinary and drastic remedy. Lopez vers Brewer. I will say this that's a case from 2012. In my personal experience, temporary restraining orders are quite easy, especially in a situation like what Parler's  doing where you're putting somebody out of business. That's what they're for. Therefore when the bulldozers there and there's no way to stop it and they're going to bulldoze over the tree or the house or in this case where they're going to eliminate Parler from basically the base of the earth. It goes over several other issues. Basically what they're saying is that they suspended Parler they didn't terminate the accounts Parler gets to pay for this month so Parler claims AWS I'm reading from line 23. parlor claims AWS breached their agreement by failing provide 30 days notice of termination To be clear, AWS suspended and didn't terminate the account, but it was parler who breached the agreement by hosting content advocating violence and failing to timely take the content down. The agreement requires Parler to ensure that neither its content nor the content of Parler's users violates AWS policies or the law. Executive to declaration example a or dot j. The policies include a up which prohibits illegal or harmful use, including content that may be harmful to others and requires parler to immediately suspend access if it becomes aware. The content violates the agreement. It Parler fails to comply with this duties AWS may immediately suspend Parler's account, there's a copy of the contract in there, we're not going to get into the content. A Ws provided Parler is merely representative of volumes of content that poses a security risk and harms others in direct violation up. The content includes but is not limited to cause for violence against a wide range of individuals, including elected individuals, law enforcement officers and teachers. People have acted on these calls people Parler was used to incite organize and coordinate the January sixth attack on the US Capitol. AWS reported Parler over many weeks, dozens of examples of content that encourage violence and the lawsuit goes on to give a list. You're welcome to look at that list. I'm not going to repeat it here but it's terrible stuff just like we see on Twitter and other services all day every day. One only needs to go look at any of the old tweets to Trump or to Trump Jr. Or to anybody who stands up for the constitution to see violence being called for. And Twitter, a noted customer of AWS never has been even emailed as far as we can tell.

Thomas Talleyrand  7:50  
AWS reported to Parler over many weeks 1000s of examples just like I said, and Parler's complaint is replete with insinuations that AWS had equal grounds to suspend Twitter's account this discriminated against Parler , or example Parler sites, the hashtag blank, which briefly tweeted on Twitter, but AWS does not host Twitter's feed, so of course it would not have suspended access to sweaters excuse me access to Twitter's content. Twitter has since independently blocked that hashtag parler cannot plead around at around its contract claim by asserting a claim for tortious interference. This is under AWS did not torturously interfere with Parlerbusiness expect an interference claim requires the plaintiff to establish a valid contractual relationship or business expectancy. Okay, they do that that defendant had acknowledged of that relationship. The defendant did an unintentional interference, including or causing a breach or termination of the relationship or the expectancy that offended interfered for an improper purpose or use improper means and resulting damage Parler fails to allege several of these elements however, I don't think that they needed to in that first thing, and we'll get to that in the next reading. Basically, they go into how they didn't violate the Sherman act because they say so. And section 230 This is the funniest thing section 230 bars interference antitrust claims, section 3230 does no such thing. In addition to their facial deficiencies, Parler's  interference and antitrust claims also fail under 230 of the communications decency act. Under that statute, the provider of an interactive Computer Services immune for acting in good faith to restrict access to material that is excessively violent, etc, etc, etc. The thing is, section 230 does not get any kind of immunity to the Sherman Antitrust Act. It does not give immunity for breach of contract, it does not give immunity for fraud by Emily, according to Amazon parlar would suffer no damages for being off the internet for months on end, or days on end, when even seconds count. They feel like they can do whatever they want to do. They can damage however they want to just tell you what I think about this answer. They had to have some kind of answer. And their lawyers were left with needing to do something. Now, if you ask me my opinion, my personal opinion, is this is one of the worst answers to a lawsuit I've ever read. Since I've been doing this. The claims are laughable. The clients protection by Amazon are absolutely laughable. That doesn't mean that they won't get granted though. So far, they have a judge that was appointed by Jimmy Carter. However, just looking at this from a populace perspective, which is the layman's perspective, and the clear meaning of the law, the TR o should 100% get granted. The more interesting thing in my opinion in this whole thing is the response from Parler. Amazon has only had a few things that it could actually use as a defense. I think that the them using section 230 as a defense shows how bad that they know that they are in trouble. I think that they would probably rather not have due to the risk of having bad lobbyists stablished against section 230 something that the media companies have invested 10s of millions of dollars into what say expanding the scope of over the last few decades, they might have even spent hundreds of millions of dollars. And no, I'm not just talking about what they donate to political campaigns and deeper political campaigns. It's my understanding that they also donate to liberal

Thomas Talleyrand  12:11  
think tanks to law schools. And they are trying to shape the thought of the judiciary at the beginning of their careers so that at the end of their careers are as they're on up in their careers. And they begin to take these judicial spots with more and more authority that they'll continue to rule in their favor. This is the reply from Parler to Amazon's reply to the original complaint. Introduction. As with its suspension of service to Parler, AWS is opposition to Parler tr o motion. That spin depends on speculation and falsehood. For example, to avoid a clear 30 day notice requirement for terminating its contract. AWS claims its action against Parler was a suspension not a termination, but the indisputable facts showed that AWS action was in fact determination. During the final call between Parler and AWS before the ladder pulled the plug. AWS officials told Parler officials, there was nothing parler could do to get it service back. See infra two dot six. Even more perniciously AWS says opposition relies heavily on the assertion at seven. That Parler was used to incite organize and coordinate the January 6 pack on the US Capitol. But AWS offers no evidence to support that ascertain only unsupported speculation from reporters. And AWS has confirmed that none of the arrested participants participants in that unconscionable attack, who had been publicly identified as of the filing of this action. even had a Parler count much less used it to incite, organize, or coordinate the attack. For these and other reasons. AWS attempt to defeat Parler TRL motion must fail Parler has a high likelihood of prevailing on at least one of its claims it has established irreparable injury in the form of a high likelihood of being forced out of business forever. And it is shown that the equities and the public interest all weigh in favor of a to borrow at a minimum Parler has established the requisite serious questions going to the merits. breach claim Parker has demonstrated a likelihood of success. AWS claims at seven that Parler failed to identify the specific term of the contract AWS breached yet parler quoted from the specific term of the contract Section seven dot two And that section entitled termination for cause only allows for termination for a material breach of a contract if that material breach remains uncured for a period of 30 days from receipt of notice by the other party. AWS cannot satisfy the contract because it terminated the contract just over 24 hours after giving notice of what it deemed a material breach to be at no time before January 9 2020. Did AWS notify Parler? That Parler was a material breach of the agreement, those blindsiding Parler and in the period up until then AWS implicitly assured Parler that the two companies had a positive relationship that would continue into 2021 or example from the beginning of the contractual relationship and repeatedly throughout AWS was aware of partners reactive rather than prospective content moderation policies, using a jury system and never before January 8 2021. Did AWS express any concerns with that system? In November when AWS knew that President Trump would likely begin using a Parler account Parler and AWS disgust Parler switching to AWS proprietary databases, and software, a mood that would mean Parler could not easily leave AWS identity AWS again attempted in mid December 2020 to sell parlar proprietary software that would permanently attach parlar to Amazon's hip. Also in

Thomas Talleyrand  16:43  
November AWS black some content for a Parler, but any content that encouraged violence Parler promptly investigated and removed for the next month. AWS occasionally sent similar material to Parler, which Parlerinvestigated and removed not once during this time, that AWS and foreign Parlerthat Parlersystem of handling this material was inadequate, or that Parler was in breach of its contract. Neither did AWS flag any specific content from December from December 19 2020 until January 8 2021. And in mid December, AWS pledge that it was definitely in this journey with parlar. Regarding abuse reports, and AWS conceded that other customers experienced similar problems with abuse reports, and that it expected Twitter would experience more abuse reports and now that AWS was handling its timeline workload. And so on January 6, after forwarding a generic complaint to parlar, about problematic content, and after parler inform AWS of its new escalation procedure to further address content moderation issues. AWS responded that parler should consider the matter resolved. Likewise, between January 6 and April 2021. In text between an AWS representative and Parler CEO AWS expressed no concerns with Parler's  content moderation. But this same AWS representative repeatedly asked whether the President had joined or would join parler now that he was blocked by Twitter and Facebook. Wow. Just Wow. After Twitter banned President Trump on January 8, the increased new users and activity caused parler to go down for several hours resulted in a backlog of 26,000 instances of content that potentially encouraged violence. However, over the next few days, parler was able to systematically remove almost all of this content, which progress was reported to AWS and within 48 hours by the end of Sunday, when AWS shut Parler down Parlerhad removed all but some 1000 problem like problematic post. Parler also identified additional steps it was taking to quickly identify and remove problematic content. Indeed, AWS had known since mid December, that parler would be adopting in 2021, an artificial intelligence system that would pre screen and appropriate content, which would sound promising initial results, and there was discussion Parler's  adopting AWS, his own artificial intelligence system. But in the end, none of this seemed to matter to Amazon Web Services. Furthermore, despite media attempts to tie Parlerto the capital riot, not one person that the news media has reported so far, as of the filing of this suit, was arrested for the riot has a pop up excuse me has a Parleraccount the woman killed by law enforcers When she forced her way into the Capitol Building, Ashley Babbitt did have a Parler account, but it has not been used since November. She also had a Twitter account that was used the same day of the right January 6 2020. Even the government claims that the attack was coordinated in part by Twitter and claim showing reportedly showing Parler users being involved in the capital right because a metadata on videos uploaded to Parler revealed a location where they were recorded. misunderstand the evidence videos recorded by others, shared and then uploaded by a separate Parler user will still show the original video like location, even at the Parler user wasn't there and didn't record the video. Additionally, AWS claims that suspended and did not terminate the account.

Thomas Talleyrand  20:58  
It is true that in its email to Parler AWS use the term suspend. However, the agreement only authorizes a temporary suspension. And two things make clear that there was nothing temporary, about AWS his actions. First, the very next sentence in the email after notifying parler that AWS would suspend Parler's account was this, we will ensure that all of your data is preserved for you to migrate to your own servers, comma, and we'll work with you as best we can develop your migration that was in quotes. It makes no sense for AWS to migrate all of Parler's data off of AWS servers are a temporary suspension. Second, after the email, notifying Parler that its account would be suspended. in conversations with parler. AWS made it clear that there was nothing parler could do to continue its relationship with AWS. And it was and that this was no near suspension, and it certainly wasn't temporary emphasis added by me on the temporary. Thus by its words and actions AWS evidence that whatever it wanted to call it AWS was permanently terminating its agreement with Parler's  alleged breach of the agreement. And according to the agreements playing terms, a termination for a material breach required 30 days notice, which notice AWS did not provide those clearly breaching the contract. Why would AWS so willfully breach its contract with parler first, Amazon was getting pressure from its progressive employees to use the capital Riot as an opportunity to suppress conservative voices, and Amazon succumbed to that pressure the same day it was applied. Second, Amazon apparently wanted to support the effort in some circles that deny any meaningful social media platform to Trump, while at the same time protecting its major client Twitter from the economic fallout of Trump's moving from Twitter to a competitor. Of course without discovery parler doesn't know for sure, at this point why AWS chose to breach its contract, but it doesn't have to establish a motive for the breach. It is clear that a breach occurred. There's a Annie Palmer of Amazon employees call or company to cut ties with Parler after a deadly US Capitol Riot published on CNBC. There's also a Katharine Ross, Amazon employees demand company stopped providing cloud services to Parler. It was a Yahoo News article that's in the appendices. Amazon contends that Parler cannot meet several elements necessary for a claim of tortious interference. First JW s argues that it was merely asserting its right to suspend Parler and therefore Parler lacked a reasonable expectancy and cannot assert an interference claim. As noted above, however, this argument lapses in the face of the fact that AWS a and substance did not suspend but rather terminated Parler service, and B did so immediately without require, excuse me waiting they're required 30 days. AWS further posits that parler has not alleged any interference for its improper purpose or done through improper means. Yet Parler's complaint clearly alleges that AWS terminated, partners account for political animus into reduced competition in the microblogging services market to the benefit of Twitter. a much larger customer of AWS than Parler and Parler documented the rising threat that Parler was to Twitter. AWS ignored more egregious behavior. On the other side of the political spectrum by Twitter that's Parler has patently alleged that AWS interfered with the context parler had, with its 15 million users as well as the millions of is expected to gain in the next short while out of greed, retaliation or hostility. AWS violated section one of the Sherman act as to the Sherman act contrary to AWS suggestion, Parker. That excuse me that Parler  never argued that AWS is contract or any other written agreement with Twitter, contemplating carding harming it expressly. The complaint focused not on the AWS contract with Twitter,

Thomas Talleyrand  25:47  
but rather on the timing of Parler's  removal, AWS, lack of concern with Twitter's equal egregious violations. It's close to business relationship with Twitter, and harm to Twitter if Parler continued operating after Twitter ejected President Trump does AWS his decision to pull the plug on Parler after three months of mutual cooperation? As soon as it became clear that Twitter unquestionably the wealthier client risk losing a substantial share of its base as powerful circumstantial evidence of an agreement or conspiracy to restrain trade in violation of section one? Then they get into whether it's a legitimate business reason, and of course, there's no legitimate business reading to do what they did. Finally, AWS claims that Parler failed to explain how competition was harmed, I think is pretty obvious how competition was harmed and parler did in fact say that section 230 does not bar Parler interference, your antitrust claims IWC SS immunity defenses under Section 230 of the communications decency Act, which AWS correctly does not assert against partners breach of contract claim also fail. The 230 claims fails on a plain reading of the statute simply forbids any provider or user of an interactive computer computer service from being treated as the publisher or speaker of any information provided by another information content provider. Here part of the Parler does not attempt to treat AWS as a publisher or speaker, nor could it AWS as an interactive computer surface, as this Parler, does by its terms shields AWS from liability only for actions or statements authored by someone else as Ricky or Richie verse, teamsters union local 456. But it is not a complete bar to liability for all wrongdoing. Indeed, because antitrust claims do not trade interactive Computer Services as content providers, at least one court and that circuit has held that 230 does not bar antitrust claims against media companies. Like I said, I think the section 230 claims are specious. at best. They're actually laughable in my personal opinion. I'm not a lawyer, though, some lawyer might want to correct me if I'm wrong. I will say that if I was going to analyze this just on the pleadings, and what I know of the law, which is a mentally look little or at least a limited, I would say that Amazon does not stand a chance in avoiding an injunction a temporary restraining order and probably a final injunction. But they will end up probably settling out of court with parler. The exposure that Amazon Web Services has here could be in the billions of dollars, but we'll just have to say first of all, they've got to get the TR o then they've got to get the temporary injunction which should take place in a few months. Once they get back to holding the status quo. We'll see how things go. I'm sure that Parler will be subject to increased scrutiny by Amazon that they will start sending them demands that they are due to cause for every single tweet that they get, excuse me, partly that they get. Now to move on into the next thing. We've had another lawsuit and we'll get into it as soon as I get my hands on a copy of it. Leave afraid did a quick little blog with him fishing Congratulations Mr. Frey for catching some fish. And even better that you released them. I'm going to do another podcast in the next few hours or tomorrow. Concerning the guy that got released out of Utah, I think his name is salvin I've got to get more into the court documents, but apparently the assistant US Attorney up there just either purposely bungled things or bungled things within competence to begin with. I don't think us attorneys get to be us attorneys by being incompetent. But you know, you still make a mistake when you're rushing things. So we'll see how things pan out there. But basically, the leader, or one of the guys seen doing the most antagonistic and inciting of riots, names a guy named Sullivan was the person

Thomas Talleyrand  30:39  
that was arrested, they have clouds, let's step in the indictment. So it'll take a little bit of breaking down to to get that done with we'll also do the rumble account. And I've got another podcast that's gonna look at the history of Rutherford B. Hayes, is fraudulence himself, the man who is made president after four states electors were rejected. That's right, electors can be rejected. There's four states electors had their electors attacked us being rejected. And then there was a compromise deal that put him into the White House pulled the troops out of the South. It's fascinating stuff. I've read a few books on it, but I'm going to brush up on it and get another podcast out in the next 12 hours or however, to wrap things up for good. I wanted to have a brief discussion about populism and what it means to me and how I see it. And basically, my definition of populism is limited government, and corporations that basically abide by the founding thoughts and efforts of the country. And right now we don't have that we have corporations that seem to think that they need to control the world that they're in. And that is not their goal. That is not their place, they have too much power to make that kind of unchecked. influence on our country. No one elected them. They just got lucky. In some cases, when you look at some of these social media companies, there's nothing innovative about anything that they did. So I don't and even if there were something innovative about what they did, I don't believe that gives them the right to then turn around and tell us how to think if they did even close to a fair job on social media, of eliminating the communication that was harmful. Outside that's one thing, but they can't even police child pornography, effectively. I damn sure don't think that they need to be telling political speech, what they can do, and they shouldn't do. Obviously, if somebody makes a material threat that should be dealt with, and it should be dealt with as quickly as possible. Yet, Twitter and YouTube and other social media outlets like Facebook, they have threats that have been made against Donald Trump against conservative people that have been up for years and years and years. 

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PopulistCast focuses on Politics, News, Legal, and Culture from a layman's point of view. Digging in past the censorship and fake news to fight the establishment.