Pennie v. Twitter, Inc. et al

Filing 58

Order by Chief Magistrate Judge Joseph C. Spero granting 43 Motion to Dismiss. (jcslc2S, COURT STAFF) (Filed on 12/4/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DEMETRICK PENNIE, et al., 7 Case No. 17-cv-00230-JCS Plaintiffs, 8 v. ORDER GRANTING MOTION TO DISMISS 9 TWITTER, INC., et al., 10 Re: Dkt. No. 43 Defendants. United States District Court Northern District of California 11 12 I. INTRODUCTION This case arises from a July 7, 2016 mass shooting in which Micah Johnson ambushed and 13 14 killed five police officers in Dallas, Texas. Plaintiffs are Rick Zamarripa, the father of one of the 15 deceased officers, and Demetrick Pennie, another Dallas police officer who was one of the first 16 responders to the attack. The loss and suffering caused by Johnson‘s horrific act of violence are not in doubt. The 17 18 only issue before this Court, however, is whether Plaintiffs state a claim for relief against the 19 particular defendants named in this case. Plaintiffs seek to hold Defendants Twitter, Inc., Google 20 Inc., and Facebook, Inc. liable for providing material support to Hamas, a Palestinian entity 21 designated as a foreign terrorist organization, primarily in the form of access to Defendants‘ online 22 social media platforms. Defendants move to dismiss for failure to state a claim pursuant to Rule 23 12(b)(6) of the Federal Rules of Civil Procedure, and the Court held a hearing on September 22, 24 2017. Because Plaintiffs have not plausibly alleged a causal connection between the shooting and 25 Defendants‘ alleged conduct, and because the Communications Decency Act immunizes most if 26 not all of the conduct at issue, Defendants‘ motion is GRANTED.1 27 1 28 The parties have consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c). 1 II. BACKGROUND 2 A. 3 Plaintiffs filed this action on January 17, 2017. See Compl. (dkt. 2). Defendants moved to 4 dismiss for failure to state a claim, see dkt. 40, and on June 9, 2017, Plaintiffs filed their operative 5 First Amended Complaint in lieu of opposing the motion. See 1st Am. Compl. (―FAC,‖ dkt. 41). 6 The Court denied the first motion to dismiss as moot in light of the amended complaint. See Order 7 (dkt. 42). Defendants now once again move to dismiss. See Mot. (dkt. 43). The general premise of Plaintiffs‘ First Amended Complaint is that Defendants have 8 9 Procedural History and Allegations of the First Amended Complaint provided material support to Hamas by allowing Hamas and its members and affiliates to use Defendants‘ social media platforms, despite Hamas‘s designation as a terrorist group under United 11 United States District Court Northern District of California 10 States law. See FAC ¶¶ 1, 21–23.2 According to Plaintiffs, ―Hamas‘s use of Defendants‘ sites‖ 12 was responsible ―in part‖ for ―radicaliz[ing]‖ Micah Johnson, who killed five police officers and 13 wounded several other people when he ―ambushed and fired upon a group of police officers in 14 Dallas, Texas.‖ Id. ¶¶ 1, 123. Plaintiff Rick Zamarripa‘s son Patrick, a six-year veteran of the 15 Dallas Police Department, was among the officers killed in the attack. Id. ¶ 124. Plaintiff 16 Demetrick Pennie, himself an officer of the Dallas Police Department, was among the first 17 responders to the scene of the attack and personally knew the deceased officers. Id. ¶ 137. 18 Plaintiffs continue to suffer emotional distress as a result of the attack. Id. ¶¶ 137–38. 19 Hamas, founded during the First Intifada in 1987 as an offshoot of the Muslim 20 Brotherhood, is a militant Palestinian organization that has ―carried out thousands of terrorist 21 attacks in Israel, the West Bank, and Gaza, murdering hundreds of Israeli and U.S. citizens . . . and 22 wounding thousands more.‖ Id. ¶¶ 15–20, 24. The United States has designated Hamas as a 23 ―Foreign Terrorist Organization‖ pursuant to 8 U.S.C. § 1189 in 1997, and as a ―Specially 24 Designated Global Terrorist‖ pursuant to Executive Order 13224 in 2001. Id. ¶¶ 21–23. Plaintiffs allege that ―[w]ithout Defendants Twitter, Facebook, and Google (YouTube), 25 26 2 27 28 Although Defendants disputed the accuracy of certain allegations in the First Amended Complaint at the hearing, factual allegations are generally taken as true on a motion to dismiss under Rule 12(b)(6). Nothing in this order should be construed as resolving the factual accuracy of Plaintiffs‘ allegations. 2 1 HAMAS‘ ability to radicalize and influence individuals to conduct terrorist operations outside the 2 Middle East would not have been possible.‖ Id. ¶ 2. Hamas operates an official English-language 3 Twitter account with more than 37,000 followers, and an Arabic-language account with 281,000 4 followers, among other accounts, and ―has used Google (YouTube) and Facebook in a similar 5 manner.‖ Id. ¶¶ 3–6. As reported by various government officials, news outlets, and other 6 commentators, Hamas and other terrorist groups use Defendants‘ products—including direct 7 messaging features—to recruit members, solicit funds, and ―spread propaganda and incite fear.‖ 8 Id. ¶¶ 25–59. All Defendants place advertisements on (and thus derive revenue from) Hamas 9 postings, and because Google shares revenue with the creators of some videos posted to YouTube, Plaintiffs allege that Google has provided funds to Hamas. Id. ¶¶ 90–102. Plaintiffs assert 11 United States District Court Northern District of California 10 liability on the grounds that Defendants provide ―infrastructure‖ to Hamas, profit from Hamas‘s 12 use of their service and ―create unique content‖ by placing ads on Hamas‘s posts, and, in the case 13 of Google, share advertising revenue with Hamas. Id. ¶ 7. 14 Although Plaintiffs‘ theory of how Defendants support Hamas is relatively clear, the 15 connection between that support and the Dallas shooting is not. Plaintiffs assert in a conclusory 16 fashion that, ―[o]n information and belief, Micah Johnson was radicalized, in part, by reviewing 17 postings of HAMAS and other terrorist groups on the internet and Defendants‘ social media sites.‖ 18 Id. ¶ 129; see also, e.g., id. ¶ 132 (―Micah Johnson was radicalized by HAMAS‘s and other Black 19 Separatist Hate Groups‘ use of Defendants‘ tools to conduct terrorist operations.‖). The First 20 Amended Complaint does not, however, include allegations addressing particular content posted 21 by Hamas that Johnson allegedly viewed. 22 The crux of Plaintiffs‘ complaint is instead that Hamas is connected to various purported 23 ―black separatist hate groups‖ that in turn influenced Johnson to shoot police officers. See id. 24 ¶¶ 103–22. To connect Hamas to such ―groups,‖ Plaintiffs identify a scattershot of statements 25 from social media users whom Plaintiffs characterize as ―HAMAS sympathizers and members‖ 26 expressing solidarity with what Plaintiffs characterize as ―the uprising in Ferguson,‖ Missouri, 27 including statements that ―[t]he oppressed stands with the oppressed‖ and advice for how to 28 mitigate the effects of tear gas. Id. ¶ 105. Plaintiffs also allege that a photograph purportedly 3 1 showing a member of Hamas beheading a prisoner has been edited by ―black separatist hate 2 groups‖ to show the beheading of a police officer and has been shared by those groups on 3 Defendants‘ social media platforms. Id. ¶¶ 106–07. Casting a wider net, Plaintiffs allege 4 connections between African American protest groups and other Palestinian or pro-Palestinian 5 groups besides Hamas, including: (1) statements by the ―BDS movement‖ (i.e., supporters of 6 boycotts, divestment, and sanctions targeting Israel), a leader of the Council on American-Islamic 7 Relations, and ―Khalilah Sabra, another Islamic leader‖ in solidarity with ―BLM‖ (i.e., ―Black 8 Lives Matter‖) protestors; (2) a YouTube video ―uploaded by a user named Black-Palestinian 9 Solidarity‖; and (3) a 2015 visit ―to the occupied Palestinian Territories and Israel‖ by ―Black journalists, artists and organizers representing Ferguson, Black Lives Matter, Black Youth Project 11 United States District Court Northern District of California 10 100 (BYP100), and more,‖ which included participating ―in a weekly riot‖ in the West Bank to 12 throw stones at Israeli soldiers and police officers. Id. ¶¶ 108–11, 113, 119–20. Plaintiffs also 13 note that ―[i]n 2016, Pro-Palestinian David Sheen completed a whirlwind tour to ISM3 and BLM 14 leftist groups across the U.S. receiving housing and support from well-known anarchists and other 15 radicals.‖ Id. ¶ 112. Next in the chain of causation, Plaintiffs allege statements by so-called ―black separatist 16 17 hate groups‖ supporting violence against police officers. Id. ¶¶ 113–18. Plaintiffs cite, for 18 example, ―demonstrators apparently calling for the deaths of police officers‖ during December 19 2014 protests in New York City—more specifically, a video on YouTube showing ―a few dozen 20 protestors marching down Fifth Avenue . . . apparently yelling out in unison ‗What do we want? 21 Dead cops. When do we want it? Now.‘‖ Id. ¶ 115. During another demonstration, Plaintiffs 22 allege that ―Austin rotesters hant [sic4] ‗What‘s Better Than 12 Dead Cops? 13 Dead Cops.‘‖ Id. 23 ¶ 116. During a 2016 Black Lives Matter protest, Plaintiffs allege that a speaker encouraged 24 demonstrators to ―pull your pistol out and . . . bust that‖ if confronted by police officers. Id. ¶ 118. 25 As noted above, Plaintiffs also allege that social media users shared the image of a police officer 26 being beheaded (edited from an original image of an alleged Hamas beheading), among other 27 28 3 4 This abbreviation is not defined in the complaint. Presumably intended to be ―protesters chanted.‖ 4 1 posts calling for violence towards police officers. Id. ¶ 117. Aside from the conclusory assertion that ―Johnson was radicalized, in part, by reviewing 2 3 postings of HAMAS and other terrorist groups,‖ id. ¶ 129, the only specific allegations regarding 4 Johnson‘s use of Defendants‘ products are that he ―‗liked‘ the Facebook pages of Black 5 Nationalist organizations such as the New Black Panther Party (NBPP), Nation of Islam, and 6 Black Riders Liberation Army, three groups which are listed by the SPLC as hate groups,‖ as well 7 as ―the Facebook page of the African American Defense League, whose leader, Mauricelm-Lei 8 Millere, called for the murders of police officers across the U.S. following the fatal 2014 shooting 9 of Laquan McDonald.‖ Id. ¶¶ 130–31. The First Amended Complaint does not allege any 10 connection between those specific groups and Hamas. Plaintiffs bring five claims for relief: (1) liability under 18 U.S.C. § 2333 for aiding and United States District Court Northern District of California 11 12 abetting an act of international terrorism, FAC ¶¶ 156–66; (2) liability for conspiring in 13 furtherance of such acts, id. ¶¶ 167–71; (3) providing material support to terrorists in violation of 14 18 U.S.C. §§ 2333 and 2339A, FAC ¶¶ 172–77; (4) providing material support to a designated 15 foreign terrorist organization in violation of 18 U.S.C. §§ 2333 and 2339B, FAC ¶¶ 178–83; and 16 (5) negligent infliction of emotional distress, id. ¶¶ 184–87. The final claim, like the preceding 17 four, is based entirely on Defendants‘ alleged provision of support to Hamas. Id. ¶¶ 185–86. 18 B. 19 Similar Cases 1. Fields v. Twitter Judge Orrick considered allegations similar to those presented here in Fields v. Twitter, 20 21 case number 16-cv-00213-WHO (N.D. Cal.). The plaintiffs in that case were family members of 22 United States government contractors killed in Jordan by a Jordanian police officer, Anwar Abu 23 Zaid, in an attack for which the designated foreign terrorist organization ISIS5 later claimed credit. 24 Fields v. Twitter (―Fields I‖), 200 F. Supp. 3d 964, 966 (N.D. Cal. 2016). Although the plaintiffs 25 in that case did ―not allege that ISIS recruited or communicated with Abu Zaid over Twitter, that 26 5 27 28 This order uses the term ―ISIS,‖ short for the ―Islamic State of Iraq and Syria,‖ for consistency with Judge Orrick‘s orders in Fields. The group has also been known as the ―Islamic State of Iraq and the Levant‖ (or ―ISIL‖), the ―Islamic State‖ (or ―IS‖), or in Arabic, ―ad-Dawlah al-Islamiyah‖ or ―ad-Dawlah al-Islamiyah fi al-Iraq wa ash-Sham‖ (or ―Daesh‖). 5 1 ISIS or Abu Zaid used Twitter to plan, carry out, or raise funds for the attack, or that Abu Zaid 2 ever viewed ISIS-related content on Twitter or even had a Twitter account,‖ they sought to hold 3 Twitter liable for the attack under 18 U.S.C. § 2333(a) based on allegations that ISIS used Twitter 4 to spread propaganda, raise funds, recruit members, and disseminate instructions for terrorist 5 attacks, and that ISIS‘s use of Twitter—and Twitter‘s alleged allowance of such use—was a 6 proximate cause of Abu Zaid‘s attack. Fields I, 200 F. Supp. 3d at 967. 7 Twitter moved to dismiss based on the Communications Decency Act (the ―CDA‖), which 8 provides in relevant part that ―[n]o provider or user of an interactive computer service shall be 9 treated as the publisher or speaker of any information provided by another information content provider.‖ 47 U.S.C. § 230(c)(1). Judge Orrick held that § 230 applied to bar liability, rejecting 11 United States District Court Northern District of California 10 two specific arguments from the plaintiffs to the contrary. First, the plaintiffs contended that 12 § 230 did not apply to claims based on Twitter providing accounts to ISIS, rather than based on 13 particular content. See Fields I, 200 F. Supp. 3d at 970–75. Judge Orrick held that such a theory 14 did not align with the plaintiffs‘ allegations, which in fact focused on the content of ISIS‘s Twitter 15 usage, in particular ―‗spreading extremist propaganda, raising funds, and attracting new recruits.‘‖ 16 Id. at 971–72 (quoting the complaint). He also held that providing accounts for Twitter‘s service 17 was sufficiently connected to Twitter‘s ―‗status or conduct as a publisher‘‖ to fall within § 230‘s 18 grant of immunity, id. at 972 (quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 19 2009)), and that the causal connection between Twitter‘s alleged conduct (or inaction) and Abu 20 Zaid‘s attack, which was ―tenuous at best regardless of the particular theory of liability plaintiffs 21 decide to assert,‖ was ―particularly weak under the provision of accounts theory because it [was] 22 based on specific content disseminated through Twitter, not the mere provision of Twitter 23 accounts,‖ id. at 974. As for the plaintiffs‘ contention that ISIS‘s alleged use of Twitter‘s ―Direct 24 Messaging‖ feature fell outside the scope of § 230 immunity, Judge Orrick held that the private 25 nature of such messages did not alter the analysis, examining the broad meaning of ―publication‖ 26 in the context of defamation law and citing several decisions that applied § 230 in cases involving 27 nonpublic messages ―without questioning whether the [statute] applies in such circumstances.‖ Id. 28 at 975–76. Judge Orrick therefore granted Twitter‘s motion and dismissed the complaint with 6 1 2 leave to amend. Id. at 976. The plaintiffs amended their complaint in an attempt to remedy the deficiencies identified in Fields I, but as in their initial complaint, the plaintiffs still did not allege that ISIS interacted 4 with Abu Zaid using Twitter or that Abu Zaid had a Twitter account. Fields v. Twitter, Inc. 5 (―Fields II‖), 217 F. Supp. 3d 1116, 1118 (N.D. Cal. 2016). In other words, ―[t]here [was] no 6 connection between Abu Zaid and Twitter alleged.‖ Id. Although the plaintiffs again argued that 7 their claim was based on providing accounts, rather than regulation of content, Judge Orrick held 8 that any policy of denying accounts to members of ISIS would require regulation of content—i.e., 9 whatever content in a user name, profile picture, or tweets might identify a user as affiliated with 10 ISIS—and thus fell within Twitter‘s role as a publisher and within the protection of § 230. Id. at 11 United States District Court Northern District of California 3 1123–24. Judge Orrick also held that the focus of the allegations remained based on ISIS‘s 12 objectionable use of Twitter rather than mere provision of accounts, and that the plaintiffs had ―not 13 alleged any facts linking Twitter‘s provision of accounts to ISIS to Abu Zaid‘s attack,‖ rejecting 14 their contention that it was enough to ―alleg[e] that Twitter provided ISIS with material support in 15 the form of a powerful communication tool and that ISIS has claimed responsibility for Abu 16 Zaid‘s actions.‖ Id. at 1125–27. Judge Orrick once again rejected the plaintiffs‘ theory that use of 17 direct messages fell outside the scope of § 230, and also rejected a new argument that policies 18 underlying the CDA required an exception to § 230 for ―‗speech that aids designated terrorist 19 organizations.‘‖ Id. at 1128–29 (quoting the plaintiffs‘ opposition brief). Judge Orrick 20 determined that he was ―not at liberty to create‖ an exception that Congress failed to include in the 21 statute, and that such an exception, despite targeting unquestionably objectionable content, could 22 impose substantial burdens on service providers like Twitter and thus chill the free expression that 23 such platforms otherwise promote. Id. at 1129. Judge Orrick dismissed the case with prejudice, 24 id. at 1129–30, and an appeal is currently pending before the Ninth Circuit, see Fields v. Twitter, 25 Inc., No. 16-17165 (9th Cir.). 26 The similarities between Fields and the present case extend beyond merely raising similar 27 issues. Although Fields was brought by different plaintiffs represented by different counsel, the 28 complaint in this case borrows many of its allegations verbatim from the Fields plaintiffs‘ 7 1 complaint—to the extent that certain paragraphs and headings here refer to ISIS where Plaintiffs 2 presumably intended to reference Hamas. E.g., FAC ¶ 165 (―Defendants‘ provision of material 3 support to ISIS was a proximate cause of the injury inflicted on Plaintiffs.‖); cf. 2d Am. Compl. 4 ¶ 86, Fields v. Twitter, Inc., No. 16-cv-00213-WHO, ECF Doc. No. 48 (N.D. Cal. Aug. 30, 2016) 5 (―Defendant‘s provision of material support to ISIS was a proximate cause of the injury inflicted 6 on Plaintiffs.‖); see also, e.g., FAC ¶ 102 (―Thus, not only does each Defendant provide material 7 support to HAMAS by allowing ISIS to make use of their social media sites, each Defendant 8 derives revenue from ISIS postings irrespective of the content of HAMAS‘ postings.‖).6 Despite 9 the substantial overlap between the allegations here and in Fields, and Defendants‘ substantial reliance on both Fields decisions in their present motion (see Mot. (dkt. 43) at 3–4, 5, 9, 10, 13– 11 United States District Court Northern District of California 10 15, 16, 18 & nn.1, 3), Plaintiffs do not acknowledge either of those decisions in their opposition 12 brief. See generally Opp‘n (dkt. 44). 13 2. Gonzalez v. Google 14 The allegations in this case also overlap significantly with those of Gonzalez v. Google, 15 Inc., No. 16-cv-3282-DMR (N.D. Cal.), another case filed after Fields and brought by plaintiffs 16 represented by the same counsel as Plaintiffs here, in that case based on a 2015 shooting attack in 17 Paris allegedly caused by Twitter, Google, and Facebook‘s support of ISIS. One paragraph of the 18 present First Amended Complaint, for example, is copied from Gonzalez without alteration: ―The 19 services and support that Defendants . . . provided to ISIS constitute material support to the 20 preparation and carrying out of international terrorism, including the attack in which Nohemi 21 Gonzalez was killed.‖ FAC ¶ 164. In a decision issued after the hearing in this case, Judge Ryu granted Google‘s motion to 22 23 dismiss in Gonzalez, holding that the CDA barred all of the plaintiffs‘ claims. Gonzalez v. 24 Google, Inc., __ F. Supp. 3d __, No. 16-cv-03282-DMR, 2017 WL 4773366 (N.D. Cal. Oct. 23, 25 26 27 28 6 Although Plaintiffs have substituted ―Hamas‖ for ―ISIS‖ in other allegations, certain allegations still appear out of place, as where Plaintiffs allege that material support provided by Defendants— internet social media companies that only achieved ubiquitous global usage in roughly the last decade—―has been instrumental to the rise of HAMAS,‖ FAC ¶ 1, an organization active since the First Intifada in 1987, see id. ¶ 16. 8 2017). Judge Ryu rejected the plaintiffs‘ argument that the 2016 Justice Against Sponsors of 2 Terrorism Act (―JASTA‖) repealed the CDA‘s immunity provision for claims related to terrorism, 3 as well as an argument that applying the CDA to the plaintiffs‘ claims would be an improper 4 extraterritorial application of United States law. Id. at *5–9. Like Judge Orrick‘s decision in 5 Fields, Judge Ryu also rejected the plaintiffs‘ distinction between a claim based on published 6 content and a claim based on providing ISIS with accounts, and thus ―access to powerful tools and 7 equipment to publish their own content,‖ holding that the plaintiffs‘ claims were ―inextricably 8 bound up with the content of ISIS‘s postings.‖ Id. at *10–11 (emphasis added). Judge Ryu 9 further held that the plaintiffs could not establish liability based on Google‘s imperfect efforts to 10 remove offensive content—specifically, the fact that accounts removed by Google allegedly were 11 United States District Court Northern District of California 1 able to ―reconstitute‖ themselves easily by using similar names and ―bulk friend/follow 12 requests‖—relying on the Ninth Circuit‘s decision in Fair Housing Council of San Fernando 13 Valley v., LLC, 521 F.3d 1157 (9th Cir. 2008), which recognized that Congress 14 enacted the CDA to allow interactive computer service providers to police user-generated content 15 on their platforms without becoming liable for any such content that the provider failed to remove. 16 Gonzalez, 2017 WL 4773366, at *11–12. 17 Judge Ryu also addressed the plaintiffs‘ arguments that Google, rather than its users, 18 should be treated as the creator of content related to ISIS. Id. at *12–15. With respect to targeted 19 advertisements that Google allegedly paired with ISIS‘s YouTube videos, Judge Ryu noted that 20 the plaintiffs did not allege that any of the advertisements themselves promoted terrorism or were 21 otherwise objectionable, and held that Google did not become the creator of the videos merely by 22 displaying advertisements alongside them, distinguishing a Northern District of Texas case where 23 a service provider supplemented user-generated content with titles and headings that were 24 themselves defamatory. Id. at *12–14 (distinguishing MCW, Inc. v., 25 L.L.C., No. Civ.A.3:02-CV-2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004)). To the 26 contrary, the plaintiffs did not ―suggest that Google‘s targeted ad algorithm is anything but content 27 neutral,‖ and the Ninth Circuit has ―held that held that a search engine‘s provision of ‗neutral tools 28 to carry out what may be unlawful or illicit searches does not amount to [content] ―development‖ 9 1 for purposes of the immunity exception.‘‖ Id. at *13 (quoting, 521 F.3d at 1169). 2 Finally, Judge Ryu rejected an argument the plaintiffs raised at the hearing that Google‘s sharing 3 of advertising revenue provides a basis for liability, holding that the complaint did not plead that 4 theory, and that the plaintiffs failed to allege that Google actually shared revenue with ISIS or that 5 any such revenue was connected to the terrorist attack at issue. Id. at *14. 6 C. Parties’ Arguments 1. Defendants’ Motion 7 Defendants move to dismiss on a number of grounds. First, they argue that, as in Fields, 8 the CDA bars all of Plaintiffs‘ claims, because Defendants are providers of ―interactive computer 10 services‖ and acted as publishers of third-party content with respect to all of Plaintiffs‘ allegations. 11 United States District Court Northern District of California 9 Mot. at 8–15. According to Defendants, the allegations that they placed targeted advertisements 12 alongside the content at issue and derived revenue from those advertisements do not change the 13 analysis, id. at 10–12, nor does Plaintiffs‘ characterization of the claim as based on providing 14 accounts or ―infrastructure‖ rather than publishing content, id. at 13–15. Defendants also contend 15 that the alleged causal chain between allowing Hamas and its members or supporters to post 16 content and the Dallas shooting does not satisfy either a ―direct relation‖ or ―substantial factor‖ 17 test of proximate cause, id. at 15–19, that the Dallas shooting was not an ―act of international 18 terrorism‖ within the meaning of 18 U.S.C. § 2333(d), see Mot. at 19–21, that Plaintiffs have not 19 sufficiently alleged that Hamas ―committed, planned, or authorized‖ the shooting within the 20 meaning of that statute, id. at 21–22, and that Plaintiffs have not alleged that Defendants conspired 21 with or aided the shooter, Micah Johnson, in any way, id. at 22–24. With respect to Plaintiff 22 Demetrick Pennie, Defendants argue that Pennie cannot establish cognizable emotional distress 23 damages because he lacks a familial relationship with any victim and did not directly perceive the 24 attack itself. Id. at 24–25. Defendants request that this action be dismissed with prejudice. Id. at 25 25. 26 2. Plaintiffs’ Opposition 27 In their opposition brief, Plaintiffs contend that statements of purpose and intent in JASTA 28 appearing as notes to § 2333, such as the purpose of ―‗provid[ing] civil litigants with the broadest 10 possible basis, consistent with the Constitution of the United States, to seek relief,‘‖ compel denial 2 of Defendants‘ motion. Opp‘n at 3–4 (quoting Pub. L. No. 114-222, § 2(b), 130 Stat. 851, 852 3 (2016)) (emphasis added by Plaintiffs). Plaintiffs argue that the Dallas shooting qualifies as 4 international terrorism because ―HAMAS has been declared an international terrorist 5 organization‖ and uses Defendants‘ platforms to radicalize individuals and provoke attacks across 6 national boundaries, including the Dallas shooting. Id. at 5–6. Plaintiffs also argue that their 7 allegations satisfy the tests for conspiracy and aiding and abetting as articulated by the D.C. 8 Circuit in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). Opp‘n at 6–11. Addressing an 9 argument not raised in Defendants‘ motion, Plaintiffs‘ contend that their complaint alleges 10 sufficient mens rea because deliberate indifference is enough to state a civil claim under the 11 United States District Court Northern District of California 1 statutes at issue. Id. at 11–14. They argue that ―but for‖ causation is not required for a claim 12 under § 2333, particularly in light of the statements of purpose in JASTA, and that a plaintiff need 13 not show a direct causal link between a defendant‘s contribution of support to a terrorist 14 organization and a particular attack carried out by that organization. Id. at 15–16 (citing, e.g., 15 Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (en banc)). As for 16 whether Hamas itself is sufficiently linked to the Dallas shooting, Plaintiffs present the following 17 extended analogy: 18 19 20 21 22 23 24 25 26 27 28 Assume that ―Smith‖ gave a loaded gun to ―Jones‖. Smith has knowledge that Jones is engaged in illegal, violent activity and although he does not have knowledge of what Jones might do with the gun, Smith is aware that Jones uses guns to commit violent, illegal acts. Jones places the loaded gun in a schoolyard hoping that a child will find the gun and shoot someone with the gun. Subsequently, ―Tommy‖ finds the gun and shoots ―Billy‖. First, even though Jones did not specifically know that Tommy would find the gun and shoot Billy, Jones would have liability for Billy‘s shooting. See Auto Club Prop.-Cas. Ins. Co. v. B.T., 596 F. App‘x 409, 410 (6th Cir. 2015). ―Evidence that a defendant left a loaded gun in a place which he knew or should have known to be accessible to a child too immature or indiscreet to exercise the required care in the control of such an instrument has frequently been held to raise a jury question as to the defendant‘s responsibility for injuries caused by a child with a gun so left.‖; See also United States v. May, 430 F. App‘x 520, 526 (6th Cir. 2011). Unlike the two cases cited above, our hypothetical Jones intended someone to find the gun. Auto Club and May found liability for 11 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 mere negligence. Liability would thus certainly attach here because Jones intended that someone would find the gun and engage in a violent act even though Jones never knew of Tommy or Billy. So too would liability for Smith. The above example is what we have here. Each Defendant plays the role of Smith. HAMAS is Jones. Micah Johnson is Billy. Each victim is Tommy. Defendants allow HAMAS to conduct terrorist operations using their tools. FAC ¶ 1. While Defendants do not directly participate in any of HAMAS‘ activities, they are aware that HAMAS is a terrorist organization and that HAMAS uses their tools to conduct terrorist operations. FAC ¶¶ 1, 178-183. Defendants provide content-neutral functionality within their platforms which enables HAMAS to raise funds, recruit, and radicalize individuals hoping those individuals will commit terrorist acts outside of HAMAS‘ direct sphere of influence such as the United States. FAC ¶¶ 1, 30-34, 123-138. Micah Johnson was radicalized by HAMAS‘ content, FAC ¶¶ 142-143, and conducted the attack on the Dallas Police. Id. Specifically, in the context of material support to terrorism, there is a strong precedent for holding Defendants liable for providing material support to HAMAS even without a direct awareness of Johnson and his terroristic plans. See Boim, 549 F.3d 685, 693. Since HAMAS ―placed the gun in the schoolyard‖ by radicalizing Johnson, HAMAS is in part responsible for the Dallas attack even if HAMAS and Johnson had never been in contact or whether [sic] HAMAS had direct knowledge about the Dallas attack. 15 Id. at 16–18. According to Plaintiffs, ―there is a direct causal connection between Defendants‘ 16 actions and the Dallas attack.‖ Id. at 18. 17 Turning to Defendants‘ argument that they are immune under the CDA, Plaintiffs contend 18 that the broad statement of purpose in JASTA, recently enacted in 2016, trumps immunity under 19 47 U.S.C. § 230 in the context of support-for-terrorism claims. Opp‘n at 18. Plaintiffs also argue 20 that their claims are based on Defendants‘ provision of ―resources‖ to Hamas, and do not seek to 21 hold Defendants liable as speakers or publishers. Id. at 19–20. They argue that by voluntarily 22 deleting certain Hamas-related accounts, ―Defendants have scienter of the violative nature of the 23 account and has [sic] assumed responsibility not to allow that account to reconstitute,‖ and thus 24 can be held liable for not taking steps to prevent blocked users from returning to Defendants‘ 25 platforms under new account names. Id. at 20–21. Plaintiffs also contend that in pairing Hamas- 26 related content with advertisements targeting particular users, Defendants act as ―information 27 content providers‖ rather than traditional publishers, and thus fall outside the scope of § 230 28 immunity, and that Google also provides support to Hamas outside of its role as a publisher by 12 1 sharing advertising revenue with Hamas. Id. at 21–24. Finally, Plaintiffs argue that Pennie can establish a cognizable injury due to his close 2 3 relationship with fellow officers in the Dallas Police Department and his emotional distress while 4 acting as a first responder. Id. at 24–25. 3. Defendants’ Reply 5 In their reply, Defendants continue to argue that they are immune under § 230. Reply (dkt. 6 45) at 1–6. They contend that JASTA had no effect on § 230 immunity because repeal by 8 implication is disfavored and because Plaintiffs improperly rely on that law‘s ―uncodified findings 9 and statement of purpose‖ rather than operative statutory language. Id. at 1–4. Defendants also 10 argue that a number of courts, including in Fields, have rejected Plaintiffs‘ theory that providing 11 United States District Court Northern District of California 7 accounts (or here, allowing deleted accounts to ―reconstitute‖) falls outside the scope of § 230, and 12 Defendants dispute Plaintiffs‘ position that adding targeted advertisements to alleged Hamas 13 content alters the analysis. Id. at 4–6. 14 Defendants reiterate their position that Plaintiffs have not alleged a sufficient causal 15 connection between Hamas‘s use of Defendants‘ services and the Dallas attack, id. at 7–8, and that 16 Plaintiffs have not established: (1) that the Dallas shooting was an act of ―international terrorism‖ 17 within the meanings of 18 U.S.C. §§ 2331 and 2333; (2) that a foreign terrorist organization 18 ―committed, planned, or authorized‖ the attack within the meaning of § 2333(d); (3) that 19 Defendants provided assistance to the person who ―committed‖ the attack within the meaning of 20 that statute; (4) that Defendants knew of a particular illegal scheme and provided ―substantial‖ 21 assistance to the ―principal violation‖; or (5) that Defendants entered any ―agreement with 22 Johnson (or anyone else) ‗to participate in an unlawful act.‘‖ Reply at 8–11 (citation omitted). 23 Defendants also respond to arguments in the opposition brief that they contend do not correspond 24 to anything in their motion,7 arguing that Plaintiffs‘ allegations neither establish sufficient mens 25 rea nor meet the other elements of ―international terrorism,‖ the latter because ―an alleged material 26 27 28 7 According to Defendants, the mismatch ―seems to stem from Plaintiffs‘ having copied much of their opposition from another brief their counsel recently filed in another case,‖ i.e., Gonzalez, No. 16-cv-03282-DMR. Reply at 12–13. 13 1 support violation does not, by itself, satisfy‖ those elements. Id. at 13–15. Defendants again 2 argue that Pennie lacks both a sufficient familial connection to a victim and sufficient firsthand 3 perception of the attack to state a claim for emotional distress damages. Id. at 11–12. 4 III. ANALYSIS 5 A. 6 A complaint may be dismissed for failure to state a claim on which relief can be granted Legal Standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ―The purpose of a motion to dismiss 8 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.‖ N. Star Int’l v. Ariz. Corp. 9 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff‘s burden at the pleading stage 10 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a ―pleading which 11 United States District Court Northern District of California 7 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 12 that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a). 13 In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and 14 takes ―all allegations of material fact as true and construe[s] them in the light most favorable to the 15 non-moving party.‖ Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 16 Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that 17 would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 18 1990). A complaint must ―contain either direct or inferential allegations respecting all the material 19 elements necessary to sustain recovery under some viable legal theory.‖ Bell Atl. Corp. v. 20 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 21 1106 (7th Cir. 1984)). ―A pleading that offers ‗labels and conclusions‘ or ‗a formulaic recitation 22 of the elements of a cause of action will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 (quoting Twombly, 550 U.S. at 555). ―[C]ourts ‗are not bound to accept as true a legal conclusion 24 couched as a factual allegation.‘‖ Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 25 265, 286 (1986)). ―Nor does a complaint suffice if it tenders ‗naked assertion[s]‘ devoid of 26 ‗further factual enhancement.‘‖ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) 27 (alteration in original). Rather, the claim must be ―‗plausible on its face,‘‖ meaning that the 28 plaintiff must plead sufficient factual allegations to ―allow[] the court to draw the reasonable 14 1 inference that the defendant is liable for the misconduct alleged.‖ Id. (quoting Twombly, 550 U.S. 2 at 570). 3 B. 4 The parties dispute the appropriate test of proximate cause for Plaintiffs‘ claims. 5 Defendants argue that in light of § 2333‘s language creating a cause of action for persons injured 6 ―‗by reason of‘‖ international terrorism, a plaintiff must show ―‗some direct relation between the 7 injury asserted and the injurious conduct alleged.‘‖ Mot. at 16 (quoting 18 U.S.C. § 2333(a); 8 Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992) (interpreting similar language in the 9 Racketeer Influenced and Corrupt Organizations Act)). Plaintiffs argue that the conduct at issue The First Amended Complaint Does Not Establish Proximate Cause need not be a but-for cause of the attack, and that it is enough to establish that access to 11 United States District Court Northern District of California 10 Defendants‘ services ―‗was a substantial reason that Hamas was able to perpetrate the terrorist 12 attacks at issue, and that Hamas‘ increased ability to carry out deadly attacks was a foreseeable 13 consequence‘ of providing such material support.‖ Opp‘n at 16 (quoting Linde v. Arab Bank, 14 PLC, 97 F. Supp. 3d 287, 328 (E.D.N.Y. 2015)). Assuming for the sake of argument that 15 Plaintiffs are correct as to the standard, the Court agrees with Defendants that the complaint must 16 be dismissed for failure to establish that any purported ―support‖ provided to Hamas was a 17 substantial factor leading to the Dallas shooting. 18 Among the more permissive decisions on this issue is Boim, in which the Seventh Circuit 19 held that although § 2333 did not at the time create secondary liability for aiding and abetting— 20 subsection (d), which now explicitly authorizes such liability, had not yet been enacted—its 21 incorporation of § 2339A, which criminalizes providing material support to terrorism, implicates 22 principles similar to aiding and abetting, and based on doctrines developed to deal with concurrent 23 causes like multiple negligently-set fires converging on a plaintiff‘s house, a person who gives 24 money to even the charitable arm of a known terrorist organization like Hamas can be held liable 25 for acts of terrorism by such a group without need to trace the funds provided by the defendant to 26 the particular attack that injured the plaintiff. See Boim, 549 F.3d at 689–99; see also, e.g., 27 Strauss v. Credit Lyonnais, S.A., 925 F. Supp. 2d 414, 433 (E.D.N.Y. 2013) (―[P]laintiffs who 28 bring [a § 2333] action are not required to trace specific dollars to specific attacks to satisfy the 15 1 proximate cause standard.‖). In that case, however, while the connection between the particular 2 support provided and the attack was arguably tenuous, the connection between the terrorist 3 organization and the attack was not. See Boim, at 687 (stating that the plaintiffs alleged ―[their 4 son‘s] killers had been Hamas gunmen‖); see also Strauss, 925 F. Supp. 2d at 433 (―Here, Hamas 5 carried out the attacks . . . .‖). 6 Whatever relationship Defendants‘ alleged provision of social media services to Hamas 7 might have to Hamas‘s own operations, the clearest break in the causal chain here lies between 8 Hamas and the Dallas attack. Aside from conclusory assertions that do not meet the Iqbal and 9 Twombly standard for factual allegations, e.g., FAC ¶¶ 129, 132–34,8 Plaintiffs do not meaningfully allege that Hamas itself carried out the attack, or even that it intended for such an 11 United States District Court Northern District of California 10 attack to occur. Instead, they allege that other Palestinians and Palestinian organizations (whom 12 Plaintiffs vaguely characterize as ―HAMAS sympathizers and members‖) expressed general 13 support for groups protesting police violence against African Americans, FAC ¶¶ 105, 109, 113, 14 119–20, including some such groups that have staged protests or rallies where speakers or 15 demonstrators called for killing police officers, id. ¶¶ 115–18, and that ―Micah Johnson was 16 radicalized, in part, by these organizations calling for the murders of police officers,‖ id. ¶ 122. 17 The only specific organizations that Plaintiffs allege Johnson interacted with using Defendants‘ 18 services are yet other groups whose Facebook pages he ―liked‖—the New Black Panther Party, 19 the Nation of Islam, the Black Riders Liberation Army, and the African American Defense 20 League—but Plaintiffs do not allege any connection between Hamas and any of those groups. See 21 id. ¶¶ 130–31. Instead, the present complaint, as amended after Defendants‘ first motion to 22 23 24 25 26 27 28 8 Plaintiffs assert, for example, that ―[o]n information and belief, Micah Johnson was radicalized, in part, by reviewing postings of HAMAS and other terrorist groups on the internet and Defendants‘ social media sites.‖ FAC ¶ 129. That assertion is comparable to allegations at issue in Iqbal, where the Supreme Court held too conclusory to be cognizable allegations that governmental defendants subjected the plaintiff to harsh confinement on account of his religion, race, or national origin, ―that [then–Attorney General] Ashcroft was the ‗principal architect‘ of this invidious policy, and that [then–FBI Director] Mueller was ‗instrumental‘ in adopting and executing it.‖ Ashcroft v. Iqbal, 556 U.S. at 680–81 (citations omitted). Absent any factual allegations regarding the Hamas postings that Johnsons allegedly viewed and their relationship to the shooting, the assertions here that Hamas radicalized Johnson are both too conclusory to be taken as true and too vague to establish proximate cause. 16 1 dismiss, details contacts between African American and Palestinian organizations with no 2 apparent relevance to this case, like the ―10-day trip to the occupied Palestinian Territories and 3 Israel‖ in 2015 by ―Black journalists, artists and organizers,‖ with no allegation that Hamas or the 4 groups that Johnson ―liked‖ on Facebook participated in that trip. See id. ¶ 110. 5 Boim and similar decisions stand for a rule that a defendant who has provided funds to a 6 terrorist organization can be held liable for any subsequent attack by that organization, without 7 need to trace the defendant‘s funds to the particular attack. Here, Plaintiffs seek to extend that rule 8 to encompass liability for an attack by a person who had engaged on social media with groups that 9 arguably shared an ideological affiliation with groups that received expressions of solidarity from groups that shared an ideological affiliation with a designated foreign terrorist organization to 11 United States District Court Northern District of California 10 which Defendants provided support. Plaintiffs‘ gun-in-a-schoolyard analogy notwithstanding, see 12 Opp‘n at 16–18, Plaintiffs cite no case where liability has been based on such a tenuous 13 connection between an attack and the foreign terrorist group that a defendant allegedly supported. 14 Plaintiffs also allege that an unspecified ―black separatist hate group‖ edited a photograph 15 purportedly depicting a member of Hamas beheading a prisoner to instead show a masked person 16 beheading a police officer and subsequently circulated that image through Defendants‘ services, 17 but do not allege that Hamas played any role in repurposing that image to express anti-police 18 sentiment, or that Johnson ever saw the image in question. See FAC ¶¶ 106–07. 19 The complaint here does not plausibly allege that Hamas ―committed, planned, or 20 authorized‖ the Dallas attack, or that it was ―the person who committed‖ the attack, within any 21 reasonable interpretation of those terms in 18 U.S.C. § 2333(d). Although asserting in general 22 terms that Hamas seeks to ―incite others outside . . . of [its] sphere of influence,‖ see Tr. at 6:10– 23 13, Plaintiffs do not allege that Hamas had or expressed any intent to facilitate attacks on police 24 officers in the United States. See Boim, 549 F.3d at 694 (noting that ―unlike some other terrorist 25 groups, Hamas‘s terrorism is limited to the territory of Palestine, including Israel‖). 26 Without some meaningful connection between Hamas and the attack, Defendants‘ alleged 27 provision of support to Hamas does not meet even Plaintiffs‘ test of proximate cause: absent 28 plausible allegations that Hamas itself was in some way a ―substantial factor‖ in the attack, there is 17 1 no basis to conclude that any support provided by Defendants to Hamas was a substantial factor. 2 Cf. Strauss, 925 F. Supp. 2d at 432. Because all of Plaintiffs‘ claims are based on Defendants‘ 3 alleged support of Hamas, the failure to allege a plausible causal connection between Hamas and 4 the Dallas attack warrants dismissal of all claims. 5 Plaintiffs have not identified any allegations that they could add to their complaint to cure the failure to establish a meaningful connection between Hamas and the Dallas attack. In response 7 to the Court‘s concerns about the lack of such a connection, Plaintiffs‘ counsel suggested at the 8 hearing that Plaintiffs could amend their complaint to allege that groups Johnson ―liked‖ on 9 Facebook had contact with Hamas. See Tr. (dkt. 54) at 15:3–16:23. But Plaintiffs concede that 10 Hamas never directly communicated with Johnson, and that they do not know whether Johnson 11 United States District Court Northern District of California 6 ever viewed Hamas social media content. Id. at 4:22–25, 14:8–9. Plaintiffs have not suggested 12 that they could allege that Hamas instructed or encouraged groups like the New Black Panther 13 Party to foment the sort of attack that Johnson committed, nor that Johnson viewed material from 14 those groups calling for such an attack. An amended allegation that Hamas at some point 15 communicated with radical groups that Johnson ―liked‖ on Facebook would not establish that 16 Hamas was responsible for Johnson‘s attack on police officers in Dallas. The Court concludes 17 that amendment would be futile. The CDA Bars Most if Not All of Plaintiffs’ Claims 18 C. 19 In addition to the defect of causation discussed above, the CDA immunizes Defendants 20 from most if not all of Plaintiffs‘ claims, because Plaintiffs‘ theory of liability rests largely on the 21 premise that Defendants should be held responsible for content created and posted by users (here, 22 Hamas and its affiliates) of Defendants‘ interactive computer services. The CDA states in relevant 23 part that ―[n]o provider or user of an interactive computer service shall be treated as the publisher 24 or speaker of any information provided by another information content provider.‖ 47 U.S.C. 25 § 230(c)(1). This section ―immunizes providers of interactive computer services against liability 26 arising from content created by third parties,‖ so long as ―the interactive computer service 27 provider is not also an ‗information content provider,‘ which is defined as someone who is 28 ‗responsible, in whole or in part, for the creation or development of‘ the offending content.‖ 18 1, 521 F.3d at 1162 (quoting 47 U.S.C. § 230(f)). ―[S]eparated into its elements, 2 section 230(c)(1) protects from liability only (a) a provider or user of an interactive computer 3 service (b) that the plaintiff seeks to treat as a publisher or speaker (c) of information provided by 4 another information content provider.‖ Fields I, 200 F. Supp. 3d at 969 (citing Barnes v. Yahoo!, 5 Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009)). As far as this Court is aware, every court that has 6 considered the issue has held that the CDA bars claims similar to those presented here, even where 7 the user posting objectionable content to an interactive service is, or is affiliated with, a foreign 8 terrorist organization. See id.; Gonzalez, __ F. Supp. 3d __, 2017 WL 4773366; Cohen v. 9 Facebook, Inc., 252 F. Supp. 3d 140, 157–61 (E.D.N.Y. 2017); Fields II, 217 F. Supp. 3d 1116. 10 As a starting point, JASTA does not implicitly repeal the CDA with respect to foreign United States District Court Northern District of California 11 terrorist organizations‘ use of interactive computer services. ―‗[R]epeals by implication are not 12 favored‘ and will not be presumed unless the ‗intention of the legislature to repeal [is] clear and 13 manifest.‘‖ Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662 (2007) (quoting 14 Watt v. Alaska, 451 U.S. 259, 267 (1981)) (second alteration in original). For a later-enacted 15 statute to amend or repeal an earlier statute not explicitly referenced therein, it must ―‗expressly 16 contradict‘‖ the earlier statute or be so incompatible that inferring amendment or repeal is ―‗is 17 absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at 18 all.‘‖ Id. (quoting Traynor v. Turnage, 485 U.S. 535, 548 (1988)) (alterations in original). No 19 clear legislative intent to repeal or amend the CDA is apparent in JASTA, which explicitly 20 modifies a separate immunity not at issue here—the Foreign Sovereign Immunities Act—but does 21 not discuss the CDA or its subject matter. See JASTA § 3(a), Pub. L. No. 114-222, 130 Stat. 852, 22 853 (2016) (codifying 28 U.S.C. § 1605B to limit foreign sovereign immunity). As Judge Ryu 23 concluded in Gonzalez, ―[t]his demonstrates that where Congress intended JASTA to repeal 24 existing statutory immunities, it made that clear.‖ Gonzalez, 2017 WL 4773366, at *6. Plaintiffs 25 rely on the statute‘s broad and uncodified statement of purpose ―to provide civil liability with the 26 broadest possible basis‖ against entities providing material support to foreign terrorist groups. 27 JASTA § 2(b); Opp‘n at 3–4. But it ―is well settled that prefatory clauses or statements of purpose 28 do not change the plain meaning of an operative clause,‖ and ―JASTA‘s statement of purpose 19 1 ‗cannot bear the weight‘ that Plaintiffs place on it.‖ Gonzalez, 2017 WL 4773366, at *7 (quoting 2 Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175 (2009)). With no operative, codified 3 provisions that conflict with the CDA, it is not ―absolutely necessary‖ to construe JASTA as 4 amending the CDA for JASTA to have meaning. See Defs. of Wildlife, 551 U.S. at 662. The 5 Court holds that JASTA has no effect on the scope of Defendants‘ immunity under the CDA in 6 this case. 7 Aside from their argument based on JASTA, Plaintiffs argue that the CDA does not apply here because they do not seek to hold Defendants liable as publishers or speakers of other people‘s 9 content. Opp‘n at 19–23. Plaintiffs contend that their claims ―do not depend upon the content that 10 HAMAS or its operatives post,‖ but instead on Defendants allowing Hamas to use their services at 11 United States District Court Northern District of California 8 all, arguing that ―[s]ince Defendants are prohibited by federal criminal law from providing support 12 to HAMAS, they have no discretion to permit the use of their resources by HAMAS,‖ and need 13 not exercise any editorial discretion to comply with the laws barring material support to terrorist 14 organizations. Id. at 19–20. First, this characterization of Plaintiffs‘ claims is false: Plaintiffs 15 explicitly base their claims on the content that Hamas allegedly posts, because absent offending 16 content, there would be no basis for even the frivolous causal connection that Plaintiffs have 17 alleged between Defendants‘ services and the Dallas attack. See Gonzalez, 2017 WL 4773366, at 18 *11; Cohen, 252 F. Supp. 3d at 157–58. Second, as two other judges of this Court have noted, 19 Defendants could only determine which accounts are affiliated with Hamas by reviewing the 20 content published by those accounts—the substantive posts and media that users share, as well as 21 the names and profile pictures that users choose to identify their accounts. Fields II, 217 F. Supp. 22 3d at 1123 (―A policy that selectively prohibits ISIS members from opening accounts would 23 necessarily be content based as Twitter could not possibly identify ISIS members without 24 analyzing some speech, idea or content expressed by the would-be account holder . . . .‖); 25 Gonzalez, 2017 WL 4773366, at *11 (quoting Fields II with approval). 26 Plaintiffs also argue that Defendants can be held liable for ―allowing an account that has 27 been taken down to reconstitute,‖ on the basis that by voluntarily removing an account from their 28 services, ―Defendants have scienter of the violative nature of the account and has [sic] assumed 20 1 responsibility not to allow that account to reconstitute.‖ Opp‘n at 20–21. This argument is 2 foreclosed by the Ninth Circuit‘s recognition that, under the CDA, good faith efforts to remove 3 objectionable content cannot create liability for service providers‘ failure to remove all such 4 content, and that the statute instead ―allow[s] them to perform some editing on user-generated 5 content without thereby becoming liable for all defamatory or otherwise unlawful messages that 6 they didn‘t edit or delete.‖, 521 F.3d at 1174; see also 47 U.S.C. § 230(c)(2) 7 (barring liability for ―any action voluntarily taken in good faith to restrict access to or availability 8 of material that the provider or user considers to be . . . objectionable‖); Gonzalez, 2017 WL 9 4773366, at *12. 10 Next, Plaintiffs contend that Defendants can be held liable as creators of content, rather United States District Court Northern District of California 11 than merely interactive service providers, because Defendants select advertisements to pair with 12 content on their services—allegedly including content posted by Hamas—―based on what is 13 known about the viewer and what the viewer is looking at.‖ Opp‘n at 21–23 (citing, e.g., 14, 521 F.3d at 1163, 1166–67, 1171). An ―entity that is responsible, in whole or in 15 part, for the creation or development of information‖ is not immune under the CDA for liability 16 related to the publication of that information. See 47 U.S.C. § 230(f)(3);, 521 17 F.3d at 1166. The Ninth Circuit has ―interpret[ed] the term ‗development,‘‖ however ―as referring 18 not merely to augmenting the content generally, but to materially contributing to its alleged 19 unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within 20 the exception to section 230, if it contributes materially to the alleged illegality of the conduct.‖ 21, 51 F.3d at 1167–68. Here, as in Gonzalez: 22 23 24 25 26 27 Plaintiffs do not allege that [Defendants] ―materially contribut[ed]‖ in any way to the actual content of [Hamas social media posts]. They do not claim that [Defendants‘] ads (which are themselves third-party content) are objectionable, or that the ads played any role in making [Hamas‘s content] unlawful. For example, Plaintiffs do not allege that any ads paired with [Hamas]-related content offered tools or instructions on how to carry out [Hamas‘s] threats, or otherwise encouraged individuals to commit acts of terrorism. The [First Amended Complaint] contains [four] screenshot example[s] of an alleged targeted ad next to [a Hamas] video on YouTube . . . . [FAC ¶¶ 42, 96.] Plaintiffs do not make any allegations about the 28 21 relationship between [the products advertised9] and terrorism. See, e.g., Jones [v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 416–17 (6th Cir. 2014)] (holding interactive service provider was not information content provider as to allegedly defamatory third party posts; even though provider appended his own comments to the posts, the plaintiff did not allege that the provider‘s comments were themselves defamatory). 1 2 3 4 See Gonzalez, 2017 WL 4773366, at *13 (second alteration in original). Like in Gonzalez, 6 Defendants‘ ―provision of neutral tools, including targeted advertising, does not equate to content 7 development under section 230, because . . . the tools do not encourage the posting of unlawful or 8 objectionable material.‖ Id.; cf., 521 F.3d at 1165–67 (holding that the defendant 9 engaged in content development outside the scope of the CDA‘s immunity provision by creating a 10 system that required users to disclose whether they were members of certain protected classes and 11 United States District Court Northern District of California 5 allowed other users to screen housing applicants based on that information). Finally, Plaintiffs argue that Google‘s alleged sharing of advertising revenue with Hamas 12 13 is not protected by the CDA. Opp‘n at 23–24. The question of whether, or under what 14 circumstances, the CDA immunizes payments made by interactive service providers to content 15 developers appears to be a novel issue.10 Google relies on the District Court for the District of 16 Columbia‘s decision in Blumenthal v. Drudge, which held that an internet provider‘s contract for 17 payment to ―gossip and rumor‖ writer Matt Drudge did not affect the scope of the provider‘s 18 immunity under the CDA for content written by Drudge. Blumenthal, 992 F. Supp. 44, 50–53 19 (D.D.C. 1998); Reply at 6 & n.5. Assuming for the sake of argument that this Court would follow 20 Blumenthal‘s holding that CDA immunity applied to user-generated content even where a service 21 provider paid for that content, Blumenthal does not address the question of whether the CDA 22 immunizes payments that otherwise could themselves give rise to liability. Providing money to 23 9 24 25 26 27 28 In this case, the advertisements are for car insurance, FAC ¶ 42, a product offering ―the tools and the team to grow your small business,‖ id. ¶ 96, Velveeta ―Famous Queso! Mix,‖ id. ¶ 99, and a home heating and cooling system, id. ¶ 100. In Gonzalez, the only advertisement documented in the plaintiffs‘ complaint was for ―a product called ‗ThreatMetrix Cybercrime Report: Q4 2015.‘‖ Gonzalez, 2017 WL 4773366, at *13. 10 The plaintiffs in Gonzalez raised this theory for the first time at the hearing on Google‘s motion to dismiss. Gonzalez, 2017 WL 4773366, at *14. Without reaching the question of whether the CDA immunizes payments, Judge Ryu held that the plaintiffs‘ complaint did not plead that theory of liability and failed to allege that Google actually shared advertising revenue with ISIS or that any such revenue was connected to the attack at issue. Id. 22 1 Matt Drudge generally is legal; providing money to Hamas generally is not. See Boim, 549 F.3d 2 at 693–94. Because Plaintiffs‘ failure to allege a causal connection between Hamas and the Dallas 3 shooting is reason enough to dismiss all claims, the Court declines to resolve the question of if or 4 how the CDA applies where an interactive service provider shares advertising revenue with a 5 content developer that has been designated as a foreign terrorist organization. With respect to all 6 other theories of liability against Google, however, as well as all claims against Defendants 7 Twitter and Facebook, section 230 of the CDA is a separate and sufficient basis for dismissal. 8 IV. 9 CONCLUSION As discussed above, Plaintiffs do not plausibly allege a connection between Hamas and the Dallas shooting, and thus fail to establish that Defendants‘ alleged support of Hamas was a 11 United States District Court Northern District of California 10 proximate cause of Plaintiffs‘ injuries. At the hearing, Plaintiffs were not able to identify 12 additional factual allegations they could make to resolve this deficiency if given leave to amend. 13 Most if not all of Plaintiffs‘ claims are also barred by the CDA. Defendants‘ motion is therefore 14 GRANTED, and the action is DISMISSED WITH PREJUDICE. 15 16 17 18 IT IS SO ORDERED. Dated: December 4, 2017 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 19 20 21 22 23 24 25 26 27 28 23

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?