Complaints About the Service
There are some new developments in that unique little case I told you about last week, and they have me thinking Wurtz v. Facebook could become the Washington state small claims judgment battle of the century. (Not a high bar to clear, but still!) Before we get to those developments, however, let’s check back in on a federal court case with a much higher profile, Parler v. Amazon.
The insurrection at the US Capitol is now more than a month behind us, but legal maneuvering continues over Amazon’s January 10 decision to boot “the world’s premier free speech platform,” Parler, from the Amazon cloud after Parler’s failure to stop its users’ calls to violence against Congress.
Upset about being bounced from the Amazon cloud, Parler filed suit in federal court, asking a judge to force Amazon to reinstate Parler’s web hosting services and alleging that Amazon’s move violated antitrust law and amounted to illegal interference with Parler’s business.
On January 21, the day after President Biden’s inauguration, Judge Barbara Rothstein said the evidence Parler had provided for its allegations was “inaccurate and unsupported.” She ruled against Parler’s request for immediate intervention to halt Amazon’s suspension and said the decision was “not a close call.” Not long afterward, Parler’s CEO, John Matze, was fired by Parler’s board, which is controlled by conservative mega-donor Rebekah Mercer. The reason for his firing remains unclear, but the Parler v. Amazon lawsuit remains linked to Matze in the form of two written statements he’d offered the court, both of which provide some of the evidence Judge Rothstein found so unpersuasive.
In those two statements, Matze alleged that one of Amazon’s real reasons for booting Parler was that it knew former president Donald Trump was thinking of joining Parler as the semi-mysterious “Person X,” an event that would likely have boosted Parler’s popularity among conservative users. Amazon, Matze claimed, wanted to “deny President Trump a platform on any large social-media service.” Matze also complained that as a result of Amazon’s suspension of Parler, the social media platform faced “the very real and immediate prospect of permanent destruction.”
Then, exactly one week ago today, Parler appeared back online. It got there thanks to help from a small web-hosting firm in Los Angeles that says it wants to support free speech, and it’s getting additional help, The New York Times reported, from “a Russian firm that once worked for the Russian government and a Seattle firm that once supported a neo-Nazi site.”
Does any of this change Parler’s approach to its ongoing lawsuit against Amazon?
It appears so. Back when he first filed the lawsuit, Parler attorney David Groesbeck, echoing then-Parler CEO Matze, described Amazon’s decision to suspend Parler as a “death blow” that would “kill Parler’s business.” As Groesbeck put it in a subsequent filing, Parler had become “an internet company that cannot get on the internet.”
To accommodate the “factual development” of Parler now being back on the internet, Groesbeck has requested—and received—more time for Parler to put together an amended complaint against Amazon. The new lease on online life for Parler “will have a material impact” on how that amended complaint reads, Groesbeck told the court. It’s due next Tuesday, March 2.
Groesbek has always been something of an eyebrow-raising choice to argue this case. Seattle Times reporter Katherine Khashimova Long, after noting that the address on one of Groesbeck’s filings was also “the address of Olympus Pellets, a firewood supplier in Shelton,” and that “other legal matters he’s been involved in are strictly small-time,” tweeted:
Now, factual developments have come to Parler’s legal team, too. On February 16, Angelo J. Calfo, a former Assistant US Attorney for the Seattle region, gave Judge Rothstein notice that he’d joined Parler’s legal squad for this case. In addition to knowing his way around federal court, Calfo has a resume that lists extensive experience in white collar criminal defense and complex commercial litigation. One of the more fun lines on his resume involves him representing David Copperfield Disappearing Act, Inc. for a case “arising out of cancellation of the illusionist’s Southeast Asian tour.” It was a breach of contract lawsuit, and breach of contract also happens to be one of the claims Parler has leveled against Amazon.
The day after Calfo appeared, two additional lawyers, both partners in the same DC lawfirm that specializes in “high-profile trial and appellate litigation,” announced they’d be joining the Parler legal team: Christopher Bartolomucci and Gene C. Schaerr.
“Groesbeck previously fronted for Bartolomucci when the latter fought against Seattle's $15/hr minimum wage ordinance,” the Seattle Times’ Long wrote. “Schaerr is best known for arguing against the legalization of same-sex marriage on the grounds that it would lead to lower birth rates.”
In other words, these fancy DC attorneys seem to sit at the conservative end of the legal spectrum. Where exactly will they go with this case now that Parler’s back online? We’re set to find out next week, but while we wait, here’s one possibility I’ve been wondering about.
Conservatives, urged on by US Supreme Court Justice Clarence Thomas and many other prominent voices, have been looking for a way to limit the protections of Section 230, the controversial and sweeping grant of federal immunity that allows tech giants such as Amazon to ban users over “objectionable” content. Amazon has specifically told Judge Rothstein that Section 230 gives it immunity from Parler’s current claims, while Parler has staked out the opposite position, arguing that Amazon “cannot hide behind” Section 230 immunity in this case.
Perhaps a couple of high-powered conservative attorneys from DC, representing a conservative-loved social media platform that’s bankrolled by a conservative mega-donor, would like to try and use Parler v. Amazon to create a new limit on Section 230 via an eventual Supreme Court ruling? Maybe one that ends up narrowing the range of options for internet infrastructure providers such as Amazon to drop “free speech” platforms such as Parler over “objectionable” content?
Just speculation for now. Next week should bring more clarity.
Now, back to a much lower court. Last week I wrote about how a 37-year-old political operative named Zach Wurtz had won an unusual case against Facebook in small claims court.
Wurtz’s allegations are similar those leveled against Facebook by Washington State Attorney General Bob Ferguson in his current lawsuit against the social media giant. Fundamentally, both legal actions originate from charges that Facebook has repeatedly refused to hand over political ad records the public is entitled to see.
Facebook didn’t show up for Wurtz’s eastern Washington small claims court hearing on January 11, leading a Yakima County judge to award Wurtz the $999 he’d requested from Facebook to make up for damages to his political ad-tracking business. But then last Monday, the same day I told you about “The Guy Who Beat Facebook in Small Claims Court,” a high-powered lawyer for Facebook filed motions to vacate that $999 judgment and dismiss Wurtz’s case altogether.
The lawyer? Rob McKenna, the former Washington State Attorney General who’s also presently defending Facebook in the superior court lawsuit brought by current Washington State Attorney General Bob Ferguson.
McKenna and Wurtz facing off in small claims court is not only a marquee small claims event but also a kind of full-circle moment for the two of them. (And, I guess, for me as well.)
Back in 2012, I wrote a short article on political “trackers,” using Wurtz as one of my main examples. At the time, he was being paid by Democrats to trail McKenna, a Republican, as McKenna made an unsuccessful bid for Washington state governor. McKenna was then in his second term as AG and Wurtz followed him everywhere with a video camera. “I’ve been on the road with him since January 2011,” Wurtz told me back then. “When he’s speaking, big grin. He hates my smile. He hates that I’m winning.”
It was Wurtz who captured video of one of McKenna’s bigger mistakes that campaign season:
It was April, and McKenna was on his way out of a campaign event when a young woman came up to him and followed him down the sidewalk, rattling off questions about reproductive rights. “Get a job,” McKenna told her. Instantly, it was up on YouTube.
Now, almost a decade later, McKenna and Wurtz are meeting again, this time in small claims court as McKenna presses for Wurtz’s recent victory to be overturned because, he argues, Wurtz’s case was “not properly served” on his client, Facebook.
Records in the case show that Wurtz hired a process serving company to deliver notice of his small claim to Facebook, and that an employee of that company, Service Above the Rest, handed off the notice on December 31, 2020, at 12:28 pm, recording the address the claim was delivered to, along with the name, age, height, weight, and hair-color of the person who accepted the delivery.
McKenna says the Tumwater, Washington address that Wurtz’s notice was delivered to is “not associated with Facebook.” But according to the Washington Secretary of State, it’s the address Facebook has provided for its local “registered agent” (a person who can accept legal notices on the company’s behalf).
Judge Kevin G. Eilmes of Yakima County small claims court noted this during the January 11 hearing, according to audio provided by the court. During that hearing, Judge Eilmes said of Facebook: “They were served and I am confident the address in Tumwater is for their registered agents in the State of Washington.”
McKenna has not yet responded to a question about this. But in a statement from Facebook employee Nicholas Wong that McKenna filed with the court, a theory is put forward that Wurtz’s notice somehow wound up in the hands of Amazon.
“My understanding is that Amazon, Inc. (‘Amazon’) was served with the claim instead of Facebook,” stated Wong, who works in Facebook’s eDiscovery and Information Governance Department.
It turns out that both Facebook and some parts of Amazon’s business rely on the same registered agent in Washington State, a global registered agent provider called Corporations Services Company that uses the Tumwater address where Wurtz’s process server delivered notice of his claim. Thousands of other businesses appear to use this same address and company for their registered agent needs.
Perhaps some confusion or mis-delivery ensued on December 31, 2020, when Service Above the Rest met Corporation Services Company in Tumwater in the matter of Wurtz v. Facebook. Whatever the case, Wong also stated that on that very same day, Facebook “was forwarded” a copy of Wurtz’s claim that was “largely illegible.” This hard-to-read copy of the claim, Wong said, “did not make its way through Facebook’s internal processes to me until January 11”—more than a week after it was received by Facebook.
January 11 was the date of the hearing in Yakima County. “As a result,” Wong said, “Facebook was unable to appear at the hearing.”
Will this odd chain of events ultimately lead to Wurtz’s $999 judgment against Facebook being vacated? Will Wurtz’s whole case be dismissed, too, as McKenna and Facebook desire? A hearing on the matter is set for two weeks from today, March 8.
Finally, a quick note on the epic standoff between Facebook and the country of Australia. Much has been written about Facebook’s decision to impose a ban on links from Australian news sites in response to a looming Australian law that will require Facebook and other digital platforms to pay the country’s news companies for the value those links provide.
Some people are calling this law an ill-conceived “shakedown” of Facebook (and Google) that will mostly end up benefiting Rupert Murdoch while not doing much to help the struggling local press. Others, like Emily Bell, director of the Tow Center for Digital Journalism at Columbia University, are saying this is an example of “where the rubber hits the road for Facebook and its civic intentions… It won’t comply with a democratic government law which it doesn’t agree with which costs it money.”
My quick note is that the situation Bell describes is familiar. It’s exactly the posture Facebook adopted in Washington state beginning in December 2018 when, in response to a political ad disclosure “regime” crafted by a democratic government, Facebook decided to simply ban all political ads targeting Washington’s state and local elections.
That’s the same reaction we’re now seeing in Australia: Don’t like a law? Ban all behavior on Facebook that could trigger that law’s application.
In Australia, Facebook’s ban on news links has been rather imperfect, affecting public health departments and charities, too. A similar thing has happened in Washington state, where Facebook’s continued sales of local political ads that it supposedly bans (coupled with Facebook’s continued flouting of disclosure rules for those ads) led to the attorney general’s present lawsuit.
Some of the stories I’ve been reading this week:
• Chat bots for loneliness — As a balm for pandemic isolation, they’re reportedly helping some people.
• Antitrust cases aren’t just for government lawyers — Private antitrust cases against tech giants are popping up, too, The New York Times writes, “with more expected to come.” One involves Mr. Sweepy.
• “Facebook is not compatible with democracy” — Congressman David Cicilline, putting his opinion succinctly.
• Cable TV providers in the Congressional hotseat — A hearing on Wednesday will look at their role in spreading “dangerous misinformation” during the presidential election.
• “I am not a cat” — And other highlights from the GameStop hearing.
• “An ideal platform for cults” — Sam Lessin’s take on the audio chat app Clubhouse reaches deep into human history and rests on this grim premise: “The social internet is rapidly evolving away from organizing around communities and toward cults.”
• “You have no right to my face” — A great interview with Shoshana Zuboff on free speech, the digital economy, and the threat of “surveillance capitalism.” Also reaching into history, Zuboff argues:
For most of human history, there was not a right to free speech because it wasn’t necessary. If your vocal cords worked and your physiology was intact, you could open your mouth and you could speak. You didn’t need a right to speak.
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