Another Lawsuit And Another Loss For Plaintiffs Trying To Make Twitter Pay For Terrorism

from the redefining-'social-media-strategy' dept

This flow of especially pointless lawsuits doesn’t appear be drying up — fed mainly from the (revenue) streams maintained by 1-800-LAW-FIRM and Excolo Law. Neither does the flow of courtroom losses. These two firms are responsible for most of the lawsuits we’ve covered that attempt to hold social media companies responsible for international acts of terrorism.

The legal theory behind the suits is weak. Attempting to avoid Section 230 immunity, the suits posit that the presence of terrorists on social media platforms is a violation of various federal laws targeting terrorist organizations. Section 230 defenses have been raised by Twitter, Facebook, et al, but these usually aren’t addressed by the courts because there’s not enough in the terrorism law-related arguments to keep the suits alive.

According to Eric Goldman — who has snagged the latest dismissal [PDF] — this is the seventh time a federal court has tossed one of these suits. If you’re familiar with the other cases we’ve covered, you know what’s coming. The California federal court’s decision quotes Ninth Circuit precedent from a similar lawsuit that said plaintiffs have to show a direct relationship between social media services’ action and the act of terrorism prompting the lawsuit. In this case, the complaint fails to do so.

In Fields, the Ninth Circuit addressed what is meant by the phrase “by reason of an act of international terrorism.” It began by noting that the “‘by reason of’ language requires a showing of proximate causation.” Fields, 881 F.3d at 744. It rejected the plaintiffs’ contention that “proximate causation is established under the ADA when a defendant’s ‘acts were a substantial factor in the sequence of responsible causation,’ and the injury at issue ‘was reasonably foreseeable or anticipated as a natural consequence.’” Id. Instead, it held that, “to satisfy the ATA’s ‘by reason of’ requirement, a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant’s acts.”4 Id. (emphasis added).

And, although the facts of this case are a little different than the cited decision, the allegations in the plaintiff’s lawsuit undermine its arguments about direct or proximal responsibility.

The instant case is somewhat different from Fields in that, here, Plaintiffs have made one allegation suggesting that Mr. Masharipov’s attack was in one way causally affected by ISIS’s presence on the social platforms. Specifically, Plaintiffs allege that Mr. Masharipov was “radicalized by ISIS’s use of social media.” FAC ¶ 493. However, this conclusory allegation is insufficient to support a plausible claim of proximate causation.

Plaintiffs do not allege that Mr. Masharipov ever saw any specific content on social media related to ISIS. Nor are there even any factual allegations that Mr. Masharipov maintained a Facebook, YouTube, and/or Twitter account. Furthermore, there are allegations in the complaint suggesting that there were other sources of radicalization for Mr. Masharipov. See, e.g., FAC ¶ 337 (alleging that Mr. Masharipov “had previously received military training with al-Qaeda in Afghanistan in 2011”); see also Iqbal, 556 U.S. at 678 (stating that, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief”’”). Finally, a direct relationship is highly questionable in light of allegations suggestive of intervening or superseding causes – in particular, Plaintiffs have alleged that, after becoming radicalized, Mr. Masharipov would have a “year-long communication and coordination [with] Islamic State emir Abu Shuhada” to carry out the Reina attack. FAC ¶ 334. Moreover, Plaintiffs fail to allege any clear or direct linkage between Defendants’ platforms and the Reina attack.

The allegations under another anti-terrorism law are no better. This argument posits the existence of terrorist-owned accounts is the same thing as providing support for terrorist acts or organizations. The court again finds the allegations don’t approach the legal requirements for liability.

Here, Plaintiffs have failed to allege that Defendants played a major or integral part in ISIS’s terrorist attacks; for example, there are no allegations that ISIS has regularly used Defendants’ platforms to communicate in support of terrorist attacks. Also, for factor (4), i.e., the defendant’s relation to the principal wrongdoer, the Halberstam court indicated that a close relationship or a relationship where the defendant had a position of authority could weigh in favor of substantial assistance. Here, there is no real dispute that the relationship between Defendants and ISIS is an arms’-length one – a market relationship at best. Rather than providing targeted financial support,[…] Defendants provided routine services generally available to members of the public. As to factor (5), i.e., the defendant’s state of mind, the Halberstam court indicated that, where the defendant “showed he was one in spirit” with the principal wrongdoer, id., that could also weigh in favor of substantial assistance. Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) (noting that, “[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims”). But here there is no allegation that Defendants have any intent to further ISIS’s terrorism.

The entire suit — including state claims for wrongful death and emotional distress — are dismissed with prejudice. The only thing left for the plaintiffs to do is appeal, and this decision quotes generously from this jurisdiction’s appellate decision in a similar case, which should hopefully deter them from wasting any more of the Ninth Circuit’s time.

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Comments on “Another Lawsuit And Another Loss For Plaintiffs Trying To Make Twitter Pay For Terrorism”

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That One Guy (profile) says:

"You again?!"

At this point judges really need to start handing out hefty benchslaps for cases like this, especially if they’re coming from the same lawyers again, and again, and again.

After being slapped down multiple times they’re just wasting the court’s time in repeated failed attempt to shake loose some easy ‘go away’ money from the large companies at this point, and it’s well past time judge made this crystal clear.

That One Guy (profile) says:

Re: Re: Re: 'You know, if you just paid us we'd (momentarily) stop this...'

Venue shopping and trying to make enough fuss that the companies pay them to go away I suspect.

If the companies are smart they’ll take the Newegg stance on lawsuits like this, making it clear that they will never pay out ‘go away’ money and will fight to the last every case of this sort, as a single loss in court will bring in an avalanche of similar lawsuits looking for a quick buck.

Gary (profile) says:

Twitter vs Gab

Nethier Twitter nor Gab are responsible for the speech of their users, and should not be held liable for that.
If the government steps in and punishes them for speech, that’s censorship.
However Gab is still a cesspool of Nazi’s filth. If individuals and businesses stop doing business with Gab and making life difficult for them, perhaps that is the “Free market” I’ve heard of.

Anonymous Coward says:

rent seeking double standard?

It seems that court action against Twitter is the only available option, since the routine methods of street justice used against smaller competitors simply don’t apply to a corporate behemoth like Twitter.

Is it a fair question to ask why is it that whenever a user of one of the huge social media monopolies commits a violent crime, the media defends the principle that large online platforms should not be held responsible for the crimes of their users, yet argues the opposite when it’s a tiny competitor?

Who would have ever thought that it would be a newsworthy article for a major newspaper that an internet domain registrar registered yet another domain? Unless it might be that this article was really more of a “dog whistle” to the activists roaming Portland and Seattle that such a company must be pressured by any means necessary to basically join the corporate lynch mob. Or be its next target.

Anonymous Coward says:

Re: rent seeking double standard?

Your premise is invalid, neither Twitter nor Gab were the ones that committed crimes, on that point alone, neither are guilty.

The difference with Gab is that it was created deliberately to host people who got banned from all the major social media sites because those people were all a bunch of racist jerks who couldn’t be bothered to abide by the terms of service they agreed to when they signed up to those sites.

So while on paper Gab officially doesn’t support racial hate, they in practice do support it. And because of that, nobody who actually is a decent human being who hosts their site/domain wants to do business with them because they don’t want their company to be associated with and/or potentially agreeing/supporting racists and Nazis. When one of them finally goes off the rails and kills someone, it brings extra attention to the site, whereas before people may have been content to ignore them since they weren’t being a public nuisance on the sites everyone else was on.

See the difference?

James Burkhardt (profile) says:

Re: rent seeking double standard?

Interestingly, Techdirt did not support the takedown of GAB, and while some commentors did, not all. 1st amendment wonks like myself are upset that gab was taken down for hosting 1st amendment activity, and while we support the legal right for private corporations Visa/MC/GoDaddy/et al. to cease servicing Gab, we are dismayed that they chose to do so. Just as I support twitter’s right to host 1 amendment speech, even if some of those users are reprehensible, I support Gab’s right to host 1st amendment speech, even if most of its users are reprehensible.

But that doesn’t mean I am in favor of Godaddy being forced to serve Gab any more than I am in favor of Twitter being forced to serve Infowars. Its a consistent policy when you compare apples to apples.

Anonymous Coward says:

Re: Re: apples to apples

The Electronic Frontier Foundation has expressed concern that online hosting companies, and payment processors in particular, have become the de facto censors of the internet. The EFF has proposed that these companies start publishing a Transparency Report listing complaints received and punitive actions taken.

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