A lot is going on in yesterday's decision in FTC v. Amazon, 2016 WL 1643973 (W.D. Wash. Apr. 26, 2016) — some excellent and some troubling.
First, the good news. A Seattle district court held that Amazon engaged in unfair or deceptive practices when it embedded within its apps options to take actions that cost real (not virtual) money without obtaining informed consent for the charges. This practice of imposing "in-app" charges without proper consent went on for a period of years and was targeted at apps intended for children, the court found. Particularly damning were some of things Amazon's own officials had to say, either while this scheme was ongoing or afterward.
What was that evidence, you wonder?
Ah, now for the bad news. The court — while reaching what seems clearly the right result — redacted significant swaths of its opinion. The redactions included a good deal of information that was central to court's decision, including the evidence showing what Amazon officials knew and when, the FTC's estimate of damages, the length of the injunction the FTC was seeking, and more. All of these are of great public importance to understanding what Amazon was doing, what the FTC argued to the court, and why the court ruled as it did. It's hard to see how any of the categories I just mentioned are trade secrets; instead, they reveal the nature of the scheme and the results of government (not internal) calculations and decisionmaking.
How do I know in such detail what the court redacted? As Wendy Davis at MediaPost explains, the redactions were clumsily implemented: the "redacted version has large swaths of text covered with black bars, but the opinion can be read in its entirety by cutting and pasting it into another file." Here is the link to the redacted opinion, with the feature described by MediaPost. The unredacted opinion is also available on Westlaw at the citation in the first sentence of this post. (But it's worth seeing the original opinion also, because it contains screen shots from Amazon that show how difficult it would be for an ordinary consumer to figure out the in-app purchases.)
A couple of important lessons here, which seem too basic to need stating but which clearly haven't been learned: Businesses should not dupe their customers. Courts should not (absent a compelling interest) seal their opinions. Both are part of troubling trends.
