We Object! (Can We Do That?)
On Thursday, after federal Judge Barbara Rothstein put the brakes on Parler’s attempt to force its way back onto Amazon’s cloud service, I found myself thinking about Idaho.
The thoughts came after a full reading of Judge Rothstein’s decision, in which she wrote that rejecting Parler’s effort to reverse its suspension by Amazon was “not a close call.” Parler’s allegations of a conspiracy between Amazon and Twitter to hobble Parler at the very moment it was exploding in popularity were based on “faint and factually inaccurate speculation,” Judge Rothstein ruled.
She was similarly dismissive of Parler’s claim that Amazon had illegally interfered with Parler’s business when it suspended Parler with less than 30-days notice. The contract between the two companies, Judge Rothstein noted, allows Amazon to immediately suspend Parler for “objectionable” content, and Amazon had catalogued, before and after the January 6 assault on the US Capitol, “multiple examples of content posted on Parler’s site that undeniably meet this definition.”
As some endeavored to cast Parler vs. Amazon as a major free speech showdown, Judge Rothstein made clear that “Parler is not asserting a violation of any First Amendment rights.” She added:
The Court explicitly rejects any suggestion that the balance of equities or the public interest favors obligating [Amazon Web Services] to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol. That event was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.
Parler quickly declared itself “disappointed” with Judge Rothstein’s ruling and vowed to fight on. “We remain confident that we will ultimately prevail in the main case,” the company said in a statement posted on its web site, which is reportedly back online with the help of a Russian web security firm. “We also remind everyone that this litigation is still in its early stages and that the resolution of this case will have broad implications for our pluralistic society.”
But, like I said, by that point my mind was in Idaho.
Idaho is the origin of an intriguing footnote to Donald Trump’s historic banishment from Facebook and Twitter in the wake of the Capitol insurrection. Not long after those companies silenced Trump, stories began popping up about how one tiny North Idaho internet service provider, YourT1Wifi, was responding. On January 10, the same day Amazon suspended Parler, a Twitter user named Krista Yep shared a copy of an email that was said to be from YourT1Wifi. The subject line: “Blocking Sites for Censorship.”
The e-mail shared by Krista Yep said that after “fielding calls from concerned customers voicing the concern that they do not want [Twitter and Facebook] to be displayed,” YourT1Wifi “will be blocking these 2 and any other website that may also be Censoring.”
One relatively obscure Idaho internet service provider, it seemed, was banishing the platforms that had just days earlier banished Trump.
YourT1Wifi did not respond to requests for comment made by phone and through its web site. But a report from CBS affiliate KREM in Spokane said the station had spoken to the owner of YourT1Wifi and been informed that the company had, in KREM’s words, “changed course.” Instead of doing a blanket block of Twitter and Facebook, YourT1Wifi would be blocking Twitter and Facebook only for customers who requested the measure.
What’s more intriguing than the mystery of what, exactly, YourT1Wifi first intended to do is the location of its customers. They don’t all live in Idaho. The company also sells internet service to customers in Spokane, the second-largest city in Washington state. And since June 7, 2018—about six months after the Trump administration dismantled federal net neutrality rules—Washington state has had its own net neutrality law on the books.
Idaho doesn’t have a net neutrality law, according to a tracker maintained by the National Regulatory Research Institute. But the Washington state law mirrors the scrapped federal rules, in that it requires equal access to content over broadband internet. That means, for example, that in Washington state an ISP like Comcast can’t block or slow down customer access to Netflix movies while, at the same time, giving customers speedy access to Comcast’s own Disney+ streaming service.
According to Shannon Smith, who heads the consumer protection division of the Washington State Attorney General’s office, one major purpose of the law is to prevent people in Washington state from having to wonder whether such scenarios are affecting their online experience without their knowledge.
“The customer is entitled to all lawful content and applications that are available, without having to worry that their internet service provider is blocking or restricting their access to information,” Smith said.
While the AG’s office doesn’t normally comment on pending investigations, Spokane’s KREM, in its story about YourT1Wifi, reported that “a spokesperson for Washington Gov. Jay Inslee’s office” told them the AG’s Consumer Protection division was “taking a look at the matter.”
It’ll be interesting to see where this goes. But in light of the Parler vs. Amazon case, this unusual episode out of Idaho raises additional questions about potential limits to state-level net neutrality rules, not just in Washington state but in dozens of other states, too.
After all, if Amazon has a right to suspend Parler over “objectionable” content, why can’t an ISP like YourT1Wifi decide that Twitter and Facebook are “objectionable” and block them?
In technical terms, there’s an easy answer to this question—at least in the Washington state context.
Washington’s net neutrality law is focused on companies “providing broadband internet access service in Washington state.” That’s companies like Comcast or YourT1Wifi, which sell internet connections to Washington customers. That’s not, at least in the normal understanding of “broadband internet access,” companies like Amazon Web Services (which, in the case of Parler, was providing web hosting infrastructure to a social media platform).
But look at this from a different angle and things become murkier.
Amazon has said in court filings that, in addition to other good reasons for suspending Parler, it has an ironclad right to drop purveyors of “objectionable” content under Section 230 of the Federal Communications Decency Act of 1996.
That law literally says that any provider of “an interactive computer service” can, without fear of legal consequence, “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.”
In her opinion last week, Judge Rothstein didn’t rule on the Section 230 arguments in Parler vs. Amazon. But if Section 230 gives Amazon legal immunity for booting “objectionable” content from its cloud services, it would seem hard to argue that it doesn’t also give YourT1Wifi legal immunity for blocking Twitter and Facebook from its internet services because it finds them objectionable.
At this point, YourT1Wifi does not appear to be invoking Section 230 immunity as a justification for its recent actions. In fact, it now appears to be saying it doesn’t even block Twitter and Facebook for all users.
But take an easy-to-imagine hypothetical scenario: Another small internet service provider, this one operating in liberal Seattle, decides to block Parler because it finds Parler’s content to be “objectionable,” even when that content is not necessarily breaking any laws. Using this same justification, this Seattle ISP also does something predicted by a tech expert who was cited in last week’s newsletter: it blocks the web sites of One America News and Newsmax, too.
If this Seattle-based ISP were to then be hit with an investigation or lawsuit for allegedly violating Washington state’s net neutrality law, could the ISP successfully defend itself by invoking federal Section 230 immunity?
To put it another way: What happens when Section 230 and state-level net neutrality rules collide on the issue of “objectionable” content?
Smith, the head of the Washington State AG’s consumer protection division, told me: “It poses a lot of very interesting questions.”
Those questions arise, in part, because no one was thinking about them when Section 230 was crafted some 25 years ago. The same can probably be said of more recent net neutrality regulations. But in this environment of heightened sensitivity to the consequences of online speech and intense searches for previously unused mechanisms to diminish its negative consequences, it seems inevitable those questions will need to be answered.
Some of the stories I’ve been reading this week:
• The High Court of Facebook — It’ll be reviewing Trump’s suspension. What does that mean?
• What if Q was wrong? — Believers in the QAnon conspiracy come to grips with Biden taking power.
• Letter to Google — Member of Congress have asked the company to “make permanent changes to its recommendation system” in light of the Capitol attack.
• Facebook kept pushing users to political groups — Even after it said it no longer would.
• Slaughter — Biden’s pick to chair the Federal Trade Commission, Rebecca Kelly Slaughter, is expected to be tougher on Big Tech.
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