Op-Ed: TOS enforcement is not a 1A violation!

by on Jan.11, 2021, under Editorial/Opinion

Unless you’ve been living under a rock and haven’t read any news, social media, or even talked to anyone for the past week and a half, you know that some really screwed up stuff’s been happening. In this article, we’ll touch lightly on what all happened in DC, the fallout, and the reason why Parler was kicked off of AWS. Contrary to the popular “conspiracy theory” belief, we will step through why Parler was kicked.

WARNING! PLEASE READ FIRST.

While it seems that everything these days is highly politicized, I’m trying to keep as much of the political part out of this discussion. This is primarily focusing on the items that pertain to Parler getting kicked off of AWS and other services.

Electoral Chaos

On January 6th, 2021, both houses of Congress (the Senate and the House of Representatives) convene to certify the results of the Electoral College. This is a “point of no return” for elections, it is the moment where the Congress ratify the voting of the Electoral College and the winner is the next President of the United States.

While this was occurring, there was a rally being held not too far away where people were protesting the election, citing various conspiracy theories. The mob quickly moved from the rally site to the Capitol building, where they proceeded to breach the building.

Insurrection

The rioters proceeded to push back Capitol Police, and forced their way into the building. While the insurrection was underway, Congress members were evacuated by the security team to safe locations. There were several injuries and five deaths, but ultimately the insurrection was stopped and Congress reconvened later that night and certified that the next President and Vice President is Joe Biden and Kamala Harris.

Ok, but what does the Capitol have to do with Parler?

For those not in the know, Parler is a highly conservative (extremist) social media site, think of it like the Republican Twitter that supposedly prides itself on First Amendment Rights (1A). Once word got out that the insurrection had been planned on Parler, several large tech companies banned the current president from their platforms (Facebook, Twitter, Shopify, etc… etc…)

Twitter: https://blog.twitter.com/en_us/topics/company/2020/suspension.html
Facebook: https://about.fb.com/news/2021/01/responding-to-the-violence-in-washington-dc/
Shopify: (Vox) https://www.vox.com/recode/22218863/shopify-bans-trump-store-merch-capitol-facebook-twitter

In conjunction with this, Apple and Google Play decided to boot Parler from their platforms, and ultimately, Amazon AWS decided to boot Parler from their cloud platform.

Google: https://www.bbc.com/news/technology-55598887
Apple: https://techcrunch.com/2021/01/09/apple-suspend-parler-from-app-store/
AWS: https://www.washingtonpost.com/technology/2021/01/09/amazon-parler-suspension/

So, what is a TOS/AUP anyway?

When you sign up for a service (literally any service), there is a huge multi-paragraph, multi-page document called the Terms of Service (TOS). Some services also have an Acceptable Use Policy (AUP). Almost no one reads them as they’re full of legalese and lawyer-speak that makes even the most intelligent human’s eyes glaze over in sheer boredom. But just like with getting a credit card with no payments for 60 days, the devil’s in the details. (Credit cards also have Terms of Service, and a bank’s TOS doesn’t just apply to their website.)

In AWS’s terms of service (here), Section 1.4 outlines the below:

If we reasonably believe any of Your Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates a material term of the Agreement (including the documentation, the Service Terms, or the Acceptable Use Policy) (“Prohibited Content”), we will notify you of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled.

Essentially: If you’re hosting content that is illegal or breaks the TOS or the AUP, they will delete your account. They will ask you to take action first, then they will take action.

In AWS’s Acceptable Usage Policy (here), it outlines the below:

Illegal, Harmful or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.

Essentially: You can’t use AWS to do anything illegal.

In its entirety, the TOS and the AUP together dictate what you can (and more importantly, what you can’t do on a service or platform. Every service provider has one, from datacenters, to hosting providers, even carrier services all have TOS and AUP policies. Each provider has their own TOS and AUP and enforce them in various ways.

Violations can result in fines, service throttling, suspension and ultimately termination, but it varies with each company.

But is inciting a riot really illegal?

Yes, actually. In Title 18, Part 1, Chapter 102, section 2101 (here), inciting a riot is indeed illegal.

(a)Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
(1)to incite a riot; or
(2)to organize, promote, encourage, participate in, or carry on a riot; or
(3)to commit any act of violence in furtherance of a riot; or
(4)to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;

and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph— [1]Shall be fined under this title, or imprisoned not more than five years, or both.

TL;DR: If you try to incite a riot, you are breaking the law, even if you weren’t the one rioting.

One small thing… that’s actually pretty large.

A lot of people are claiming “First Amendment” violation when AWS, Google, Facebook, Twitter, etc. booted Parler off of their platform, but here’s the thing.

The First Amendment only applies to a governmental attempt to suppress free speech. It does not cover corporations suppressing the use of their platform!

Here’s the First Amendment in all it’s terse glory (here):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s the entire First Amendment as it appears in the Bill of Rights. It doesn’t say anywhere anything about service providers, platform providers, services, strictly Congress.

In a nutshell, if you try to incite a riot, you are breaking the law, you are violating the service provider’s AUP, and have broken their TOS, and you are subject to the ramifications of your actions.

Chain reaction

Parler got booted off Google, Apple, Facebook, Twitter, AWS, etc. for breaking the law, breaking each company’s TOS and AUP, and becoming unhostable. It’s not the first service, and it’s definitely not the last.

Another such site, 4chan also got booted off of several service providers, even affecting their datacenters and hosting providers various peering agreements. It is not without precedent that hosting providers come under fire for hosting bad content.

When a web property (like Parler or 4chan) is rejected by all hosting providers, infrastructure providers, and connectivity providers because of their reputation, they are essentially unhostable and remain offline.

Kick, or be kicked

What if AWS hadn’t kicked Parler? If AWS didn’t kick Parler off for inciting the insurgency, then peering providers (Layer 3, Cogent, AT&T, etc..) could very well stop peering with AWS, causing no end of outages and difficulties for legitimate users. Not to mention, AWS’s reputation being tarnished by hosting extremist content that they were made aware of.

Let’s say for theory’s sake that a user of this site posted content that incited a riot. If I as the site owner didn’t stop them and took no action, people would get a negative reputation of this site hosting inciteful content. The site could be reported to the hosting provider, and they could also get a negative reputation for hosting the content. Peering providers that connect the hosting providers to the Internet may also get a negative reputation for connecting the hosting provider.

Although it could be viewed through a more altruistic lens for the greater good, no one would willingly host content that risks their own company’s reputation. I won’t host content that threatens this site’s reputation, my hosting provider won’t host content that threatens their reputation, the hosting providers peers won’t connect to providers that threaten their reputation. That’s all it is.

No, Charlie Brown. Parler getting the boot isn’t a 1A violation, it’s a TOS violation. Also, Parler was booted to protect company reputation, not because of some conspiracy.


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