Mark Zuckerberg, Call Your Lawyer

by James C. Sherlock

“You don’t need a Weatherman To know which way the wind blows.” — Bob Dylan, Subterranean Homesick Blues.

Consider this:

“Facebook was hit with twin lawsuits by the Federal Trade Commission and attorneys general from dozens of states on Wednesday, in one of the most serious challenges ever to the Silicon Valley giant. The cases could potentially result in Facebook being broken up.

Here’s what you need to know.

The FTC and the states accuse Facebook of abusing its dominance in the digital marketplace and engaging in anti-competitive behavior.

“Facebook’s actions to entrench and maintain its monopoly deny consumers the benefits of competition,” Ian Conner, Director of the FTC’s Bureau of Competition, said in a statement. “Our aim is to roll back Facebook’s anticompetitive conduct and restore competition so that innovation and free competition can thrive.”

And that story was dated Dec. 11, 2020. 

Maybe last week was not the best time for Facebook to kick that hornets’ nest with another potential antitrust violation.

What happened? 

Kerry Dougherty raised this issue this morning.

Crisply put, the lords of Silicon Valley declared a national emergency this weekend and took coordinated action to address it.

I checked my Constitution and the laws of the United State and can’t find that provision anywhere.

Twitter, Facebook, Google, Apple and Amazon and a host of others acted simultaneously, with the stated intent of suppressing speech that incites violence, to: 

  • shut down Parler, a fast growing rival to Facebook. Parler depended on Google and Apple to distribute its apps and upon Amazon AWS to host its platform. All those rugs were pulled out simultaneously. The description of Parler on both Apple app store and Google apps before both were was pulled was: 

“Parler is a non-biased, free speech social media focused on protecting user’s rights. Create your own community and enjoy content and news in in real time. Apply moderation tools to filter content.” Who curates that content for Apple and Google?

  • remove “bots,” by which they refer to self-replicating internet robot malware that infects computers, not the good bots that let us order pizza online; and
  • deny certain individuals access to the internet because their very presence was considered to threaten public safety.

Private tech companies including Facebook that acted this weekend broadly and simultaneously against Parler in the name of “preventing violence” are going to need excellent attorneys, better ones than they had before they did it.  

They had options:

  • They could have left Parler alone and acted against material and bots that offended them.  
  • They could have brought evidence of the threat and sought an emergency court order from a federal judge in California or elsewhere to shut down Parler, a growing rival of Facebook and to some degree Twitter. One can get a federal court order in California for nearly anything. Yet they apparently failed to do so.  

Section 230 of the Communications Decency Act

I have already this morning heard on various media things like “Section 230 will keep them from getting sued.” Really?

Facebook, as we read above, is already being sued by federal and state governments for antitrust violations. Parler has already filed a suit against Amazon for shutting it down.

Section 230 of the Communications Decency Act passed in 1996 and is commonly referred to as the safe harbor provision. Section 230 absolves U.S. website operators from liability if third-parties use their platforms to post defamatory statements. Parler was protected by Section 230 from civil action in the courts against the activities the tech titans charged it with.  

So they took a more direct route.

The statute further provides “Good Samaritan” protection from civil liability for operators of interactive computer services in the removal or moderation of third-party material they deem obscene or offensive, even of constitutionally protected speech, as long as it is done in good faith.

Parler is not “material,” it is a platform.

The Ayatollah (60,000 likes), Chairman Xi (178 likes) and Vladimir Putin (3 million likes) are still up on Facebook and Twitter, as are the crazies on the American left that used Twitter and Facebook to initiate and coordinate last summer’s deadly and destructive riots.  

So “good faith” is not likely to work. But who can predict what will happen in court?

Contract

We have no idea of the provisions in the contract between Parler and Amazon, but I suspect we will soon find out. That may be the subject of Parler’s initial suit that has already been filed.

Antitrust

Both the federal and state governments have antitrust laws “aimed at preserving free and unfettered competition as the rule of trade” (Sherman Act). All such laws are subject to criminal and civil enforcement. Civil suits can be brought by governments or private entities harmed by unlawful activity.

The simultaneous actions suggest the possibility of a conspiracy. Filing criminal charges depends upon the evidence and is up to the discretion of state and federal prosecutors. It requires a prosecutor who thinks he or she can prove a case beyond a reasonable doubt. We’ll have to wait to see how that develops.  

The actions of Twitter and Facebook, even absent a conspiracy, represent actions by dominant players in restraint of a growing competitor. Do you suppose there were ever discussions at Facebook headquarters about the threat posed by Parler as a rival before the ugly events of last week? Me too.  

There is undoubtedly considerable documentation tracking the growth of Parler and its effects on Facebook’s user base. That is somebody’s job at Facebook.

On the government side, the Antitrust Division of the Justice Department may file a criminal or new civil suit or the FTC and state governments may try to add this as evidence in their existing Facebook suits or both.   

And Amazon has a new headquarters close to the federal D.C. Circuit Court.

Non-Government Civil Antitrust Actions

Money and lawyers, perhaps including the ACLU, will rush in to support Parler in civil antitrust actions. 

Even in non-government civil actions, plaintiffs can request and courts can take actions beyond monetary damages to mitigate the potential for future anticompetitive actions. Breaking up some of these dominant companies is in the realm of possibility.

The Effects

It doesn’t take an attorney to conclude that these companies face grueling years of court dates that will wind up in the Supreme Court. Good. They earned it.

But this is not just a legal issue.  

The Silicon Valley crowd thought they could earn some credits with the Biden Administration with this move in an attempt to prevent any further antitrust damage. I hope it has the opposite effect.

But worse, with the left already occupying the heights of the culture in Hollywood, music, the universities and the press, this attempt to forge a social media monopoly on the left under cover of “preventing violence” will itself incite additional anger on the right.  

Just what the nation needed.

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60 responses to “Mark Zuckerberg, Call Your Lawyer

  1. It will be good for them to have a new president who owes them big time and knows it. Elections have consequences.

    • Them who? FB or us as a nation?

      “Is that Lindsey of Graham, the treasonous Senator?”
      “No, he is Lindsy of Graham, the poet.”
      “Then stone him for his bad verse.”

    • They do indeed, Steve. I hope the nation survives the consequences of this one. The left continues to prod a hornets nest without any concept of how bad things can get. I hope they and we don’t find out. They may think they saw the worst last week, and I hope they are right, but I doubt it.

  2. Once again New York AG Letitia James is the hero of our story.

    If Parler was a threat to Facebook it would have been purchased by them already.

    There’s always MySpace!

  3. James Wyatt Whitehead V

    The Lords of Silicon Valley are safe at home. This gig has been bought and paid for.

  4. Well, it will be interesting if all those State AGs settle quickly and cheaply in the wake of Parler’s removal. Tit for tat?

    I did like this, “Parler is a non-biased, free speech social media focused on protecting user’s rights. Create your own community and enjoy content and news in in real time. Apply moderation tools to filter content.”

    It’s exactly what Larry Flynt would have written for Ted Bundy’s dating profile.

    So, this will anger the right? Big fuzzy duck! Everything, it appears, angers the Right.

  5. “But worse, with the left already occupying the heights of the culture in Hollywood, music, the universities and the press, this attempt to forge a social media monopoly on the left under cover of “preventing violence” will itself incite additional anger on the right. ”

    It has always amazed me that the Right’s biggest complaint is that the Left owns the country’s brain trust. Well, on that, you’ll get no argument from me. Snicker.

  6. Baconator with extra cheese

    The Zuck already circumvented lowly courts… he has people in Biden’s cabinet.
    His only worry now is the application of zinc oxide.

  7. What’s most amusing is that people who are cheering this own will be affected down the road. When their speech becomes to uncomfortable for the beast that they helped create.

    Censorship doesn’t stop once you start it.

  8. If the AGs smell money, they’ll be happy to sue in the name of the People and benefit of their department’s pocketbook.

  9. The better idea would be to break up AWS (and all cloud service providers) who controls Facebook and Twitter and YouTube. They are dangerous and they provide essential technical services to the Federal Government. Amazon Web Services can do what they did to Parler at any time and the federal government would be in chaos. Yes, you can break up Facebook and Twitter but, just for consideration, consider that they had no choice because AWS would have shut them down had they not restricted free speech. I also believe that all social media companies should be required to provide their own infrastructure instead of being allowed to partake of cloud services. That way they are free to make their own… questionable decisions and be responsible for them. Parlor’s CEO is now receiving death threats and cannot return home. That scares me because they are making an example of him for allowing free speech.

    • Cloud services are here to stay. The question is why it’s not a truly common service with lots of providers.

      Is AWS “big” in other countries – certaintly not China or Russia or Iran… and probably not Europe either.

      • Yes, AWS is big in other Countries as well. It’s a global service.

        • but surely not the only one, no?

          • Goalpost moved.

          • Nope. full actual reality invoked…

          • Larry, every hour of everyday Amazon brings a new LARGE data center online somewhere in the world. You need to use a search engine in order to understand this. The Gartner Group puts them as the dominant cloud service provider for the 10th year in a row. I did not infer that cloud services are not here to stay. They have many data centers in Europe. The 3rd largest bank in the world uses them. The federal government uses them almost exclusively and all they have to do is literally click a link to shut that access down.

          • “Click to Edit – 1 minute and 51 seconds
            LarrytheG | January 12, 2021 at 10:34 am |
            Nope. full actual reality invoked…”

            What is that supposed to mean?

            You asked a questions, when that question was answered you moved to another approach. That is the definition of “moving the goalposts”.

            That is literally how you comment everyday.

          • I don’t doubt that for a minute. Are we saying that somehow Amazon manages to be a monopoly in all other countries?

            How about they are a really good competitor with a really good product at a really good price?

            Even then, there are competitors… the question is why AWS manages to stay on top in multiple countries with different laws for monopolies.

    • Each social media company is free now to provide its own infrastructure. They use cloud services for good old capitalist reasons, they are cheaper.

      • They use cloud services because they don’t employ the people with the skill set to accomplish it on their own.

      • “free now to provide its own infrastructure”. What does that even mean? Do you think tech startups “provide their own infrastructure” even though they are “free” to do so? Some do later, but not at the beginning.

  10. Larry, here is a link that is an AWS link. It will answer all your questions…

    https://infrastructure.aws/

  11. I’m pretty sure there are competitors to AWS. And it would be dumb for the US govt to rely solely on AWS as well as some corporations…

    AWS goes down! What’s your backup? Good organizations have an ability to continue even if their main servers go down.

    quick search:

    Some Top Competitors of AWS are mentioned below:
    Google Cloud Platform (GCP) Google Cloud Platform (GCP) is one of the fastest and enormously growing cloud-computing platforms in the market. …
    Microsoft Azure. …
    IBM Cloud. …
    Oracle Cloud. …
    VMware Cloud. …
    Dell Technologies Cloud. …
    Alibaba Cloud.

    • Larry, AWS does NOT go down EVER by accident. Because they have redundant data centers in various parts of the world which keeps them safe from some natural disaster. There are competitors but I don’t see your point because I am not picking on AWS. I am picking on ALL cloud service providers who provide essential services to government organizations. No social media company should be allowed to use cloud services because of what they just proved they could do to shut down free speech if they wanted to. It is a clear threat. These cloud providers actually force companies like facebook, youtube, parler to toe the line or be shut down.

  12. Yes and another favorite is the Manchurian Candidate

  13. All this ranting about an “attempt to forge a social media monopoly on the left” is ridiculous. Conservatives use Facebook and Twitter all the time. One person has been banned. Because he espoused conservative views or praised the President? No, because he used his Twitter account to spread baseless charges and undermine the electoral process of the country and then he incited a group of his followers to storm the U.S. Capitol.

    Any conservative entrepreneur is free to set up a competitor to Twitter and be protected by Section 230.

    • “Any conservative entrepreneur is free to set up a competitor to Twitter and be protected by Section 230.”

      Dick, did you even read my essay? Parler was set up by a conservative entrepreneur as a competitor to Twitter and was destroyed in a weekend by AWS, Apple and Google. Section 230 protections were irrelevant.

    • That’s two days in a row you’ve attempted a false dichotomy.

      “Any conservative entrepreneur is free to set up a competitor to Twitter and be protected by Section 230.”

      They attempted and were just effective cancelled for their trouble.

      • No… Parler was destroyed in less than 5 minutes by AWS. Apple and Google had nothing to do with it. AWS is the monster here…

        • Google and Apple removed Parler from their respective app stores prior to AWS removing their hosting.

          So it was an Apple, Alphabet and AWS trifecta.

          • If you asked any of the three if they allowed foreign terrorists on their sites – what would they say?

            If you asked them if they allowed domestic terrorists on their site?

            If you asked them if they allowed people making deaths threats to others on their sites?

          • “LarrytheG | January 12, 2021 at 1:19 pm |
            If you asked any of the three if they allowed foreign terrorists on their sites – what would they say?

            If you asked them if they allowed domestic terrorists on their site?

            If you asked them if they allowed people making deaths threats to others on their sites?”

            Define “their” sites as none of the listed operate “sites”.

          • re” sites”… scractch that – how about services?

        • I thought AWS gave them a week to find another provider, no?

          I would think, ANY online service that relies on 3rd party cloud support – needs to have a backup plan.

          someone said AWS never goes down:

          ” Prolonged AWS outage takes down a big chunk of the internet
          51
          AWS has been experiencing an outage for hours

          By Jay [email protected] Updated Nov 25, 2020, 5:39pm EST

          it happens……

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