Last time, I covered the technical risks associated with using Amazon S3, investigating how sure we could be that S3 was reliable enough for our purposes.
Now (rather late) let’s turn to the simplest question of all: will Amazon let you use S3 to back up your music?
You will not use Amazon S3 in … any manner that might be discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
So before you use Tunesafe, you must erase Debussy from your iPod (“The Golliwog’s Cakewalk”), all of Wagner (a known racist), and anything by NWA – to name but a few.
Yes, you say, but surely I could encrypt everything so that Amazon don’t notice?
You agree to provide such additional information and/or other materials related to your Application as reasonably requested by us or our affiliates to verify your compliance with this Agreement.
Well, no, actually. Amazon require the right to listen to all your music to make sure that it is the sort of thing they want to have on S3. This is reasonable. How can they tell whether your encrypted confidential data are illegal or not, if you don’t let them read your data?
What if we ignore this and go ahead anyway?
If your Application is determined (for any reason or no reason at all, in our sole discretion) to be unsuitable for Amazon Web Services, we may suspend your access to Amazon Web Services or terminate this Agreement at any time, without notice.
How thoroughly will Tunesafe have to censor its users’ content? Would it be OK to have music by Tom Lehrer on your iPod, or is poisoning pigeons in the park an illegal activity? (after all, the Audubon Society objects to it). To answer this kind of question definitively you will have to have a detailed knowledge of the criminal law of the state of Washington.
Your lawyers will not be idle. Apart from keeping tabs on Washington law and Washington politics they will have to check the Amazon Web Services Agreement hourly, since
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Amazon Website. Your continued use of Amazon S3 following our posting of a change notice or new agreement on our site will constitute your binding acceptance of the change.
…so that even if possessing Poisoning Pigeons in the Park isn’t grounds for erasure today, a quick addition of “cruelty to animals” to Amazon’s list of Banned Things could easily make it so tomorrow.
Committing crimes with electricity
Amazon S3 is meant to make data storage into a commodity, just like electricity. So I called my local electricity company to ask them if I was allowed to use electricity for criminal purposes. If they knew I was committing a crime, could they cut me off? Could they monitor my activities in order to check whether they needed to cut me off?
No, they said. I can use electricity to make defamatory statements, or to publish racist and genocidal propaganda, or to be cruel to badgers or bats. I could even use it to grow cannabis plants (except that British cannabis growers steal their electricity by bypassing the meter). As long as I pay my bills, the electricity company will continue to supply me with power to continue my illegal activities.
The contractual basis of doing business with Amazon
Amazon will claim that their licence agreement was drafted by a moron in a hurry and that they don’t really mean any of it. “We don’t mean any of these nasty things, really. You know we’re nice guys so just go ahead and don’t worry about the contract”.
This is a widespread modern trend in both contracts and legislation. It puts the customer (or the citizen) permanently in the wrong but spared the consequences of his wrongdoing by magnanimous corporations and governments. It essentially abolishes the rule of law and replaces it with administrative fiat.
The Amazon licence agreement is not a suitable basis for any serious commercial relationship and anyone who bases a business on this contract is failing in his duty of care to himself and his investors.
Why the contract is the way it is
Internet law is a shambles – international, national and state law all cemented together into a legal breccia, with no-one knowing quite where the lines of fracture will go when the whole thing is stressed. There is no universal consensus as to where criminal liability lies for the storage or transmission of data. Different jurisdictions take contradictory approaches. Some of them enact absurd laws and trust that they won’t be used: in the UK, for example, if I ring up a friend and encourage him to have a cigarette to get over an emotional crisis, my telephone company has committed an offence simply by transmitting my voice.
It is natural that Amazon’s lawyers (aware that their company is a large target with deep pockets) try to shrug the entire liability onto their users by banning any activity that might get Amazon into trouble. It is also natural that the users, reading the contract carefully, will avoid any activity that might get Amazon into trouble by avoiding any activity at all involving Amazon.
For the health of the entire Internet services market, someone has to establish the extent to which data storage and transmission are to be treated, like electricity, as an opaque commodity without a legal weight of their own. I can’t do it and Tunesafe is too small. It is the responsibility of large corporations such as Amazon to buy a few legislators (preferably, ones with international connections) and get the job done properly, to the benefit of us all.
Next time, how Amazon’s future actions could mean S3 users being liable to arrest and imprisonment if they ever travel to the UK.