Court (Again) Tosses Lawsuit Seeking To Hold Twitter Accountable For ISIS Terrorism

from the that's-not-how-causation-works,-never-mind-Section-230... dept

At the beginning of this year, Tamara Fields -- whose husband was killed by ISIS terrorists -- sued Twitter for "providing material support" to the terrorist group. The actions underlying Fields' lawsuit were undeniably horrific and tragic, but by no means provided any sort of legal basis for holding Twitter responsible for actions or speech undertaken by users of its service.

The lawsuit was dismissed in August, with the court pointing to Twitter's Section 230 immunity and the lawsuit's general lack of argumentative coherence. Perhaps recognizing that Section 230 (and common sense) would prevent Twitter from being held responsible for ISIS's terrorist activities, Fields chose to approach the lawsuit from some novel angles. At some points, Twitter "provided material support" by allowing ISIS members to obtain accounts. At other points, it was Twitter's inability to stop the spread of ISIS propaganda that was the issue.

The court invited Fields to file an amended complaint, hoping to obtain a coherent argument it could address with equal clarity. It didn't get it. The amended complaint may be a bit more structured, but the court has again dismissed the lawsuit [PDF] on Section 230 grounds while also addressing the deficiencies of other arguments raised by Fields. (h/t Eric Goldman)

Fields tries to drill down the "provision of accounts" theory: that the ability of ISIS terrorists to obtain accounts somehow amounts to "material support" -- or, in any case, should result in the removal of Twitter's Section 230 immunity. The court says this argument makes no sense and, in fact, invites the court to engage in restriction of First Amendment-protected activity.

Plaintiffs’ provision of accounts theory is slightly different, in that it is based on Twitter’s decisions about whether particular third parties may have Twitter accounts, as opposed to what particular third-party content may be posted. Plaintiffs urge that Twitter’s decision to provide ISIS with Twitter accounts is not barred by section 230(c)(1) because a “content-neutral decision about whether to provide someone with a tool is not publishing activity.”

The court disagrees. There's no way Twitter can act in a "content-neutral" manner and still deny accounts to ISIS members like the plaintiff believes it should. The only way to discover whether an account holder might be a terrorist or terrorist sympathizer is by examining the content they post.

Although plaintiffs assert that the decision to provide an account to or withhold an account from ISIS is “content-neutral,” they offer no explanation for why this is so and I do not see how this is the case. A policy that selectively prohibits ISIS members from opening accounts would necessarily be content based as Twitter could not possibly identify ISIS members without analyzing some speech, idea or content expressed by the would-be account holder: i.e. “I am associated with ISIS.” The decision to furnish accounts would be content-neutral if Twitter made no attempt to distinguish between users based on content – for example if they prohibited everyone from obtaining an account, or they prohibited every fifth person from obtaining an account. But plaintiffs do not assert that Twitter should shut down its entire site or impose an arbitrary, content-neutral policy. Instead, they ask Twitter to specifically prohibit ISIS members and affiliates from acquiring accounts – a policy that necessarily targets the content, ideas, and affiliations of particular account holders. There is nothing content-neutral about such a policy.

The plaintiff, despite amending her complaint, still takes a cake-and-eat-it-too approach when trying to twist ISIS terrorism into a Twitter-enabled activity. The court notes that the new complaint tries to push Twitter's provision of accounts to terrorists as the linchpin of her case, but still spends far more time complaining about Twitter's alleged moderation failures.

As discussed above, the decision to furnish an account, or prohibit a particular user from obtaining an account, is itself publishing activity. Further, while plaintiffs urge me to focus exclusively on those five short paragraphs, I cannot ignore that the majority of the SAC still focuses on ISIS’s objectionable use of Twitter and Twitter’s failure to prevent ISIS from using the site, not its failure to prevent ISIS from obtaining accounts. For example, plaintiffs spend almost nine pages, more than half of the complaint, explaining that “Twitter Knew That ISIS Was Using Its Social Network But Did Nothing”; “ISIS Used Twitter to Recruit New Members”; “ISIS Used Twitter to Fundraise”; and “ISIS Used Twitter To Spread Propaganda.” These sections are riddled with detailed descriptions of ISIS-related messages, images, and videos disseminated through Twitter and the harms allegedly caused by the dissemination of that content.

[...]

It is no surprise that plaintiffs have struggled to excise their content-based allegations; their claims are inherently tied up with ISIS’s objectionable use of Twitter, not its mere acquisition of accounts. Though plaintiffs allege that Twitter should not have provided accounts to ISIS, the unspoken end to that allegation is the rationale behind it: namely, that Twitter should not have provided accounts to ISIS because ISIS would and has used those accounts to post objectionable content.

Because of Fields' inability to raise one (possibly) Section 230-dodging argument (provision of accounts) without relying heavily on one that specifically invokes Twitter's immunity, the lawsuit is doomed to fail no matter how many times the complaint is rewritten or how many levels up it's appealed.

In short, the theory of liability alleged in the [complaint] is not that Twitter provides material support to ISIS by providing it with Twitter accounts, but that Twitter does so by allowing ISIS to use Twitter “to send its propaganda and messaging out to the world and to draw in people vulnerable to radicalization.” SAC ¶ 41. Plaintiffs do not dispute that this theory seeks to treat Twitter as a publisher and is barred by section 230(c)(1).

Furthermore, there is nothing at all connecting Twitter to the murders committed by terrorists.

Even under plaintiffs’ proposed “substantial factor” test, see Oppo. at 11, the allegations in the SAC do not support a plausible inference of proximate causation between Twitter’s provision of accounts to ISIS and the deaths of Fields and Creach. Plaintiffs allege no connection between the shooter, Abu Zaid, and Twitter. There are no facts indicating that Abu Zaid’s attack was in any way impacted, helped by, or the result of ISIS’s presence on the social network. Instead they insist they have adequately pleaded proximate causation because they have alleged “(1) that Twitter provided fungible material support to ISIS, and (2) that ISIS was responsible for the attack in which Lloyd Fields, Jr. and James Damon Creach were killed.” Id. at 13. Under such an expansive proximate cause theory, any plaintiff could hold Twitter liable for any ISIS-related injury without alleging any connection between a particular terrorist act and Twitter’s provision of accounts. And, since plaintiffs allege that Twitter has already provided ISIS with material support, Twitter’s liability would theoretically persist indefinitely and attach to any and all future ISIS attacks. Such a standard cannot be and is not the law.

No doubt this decision will be appealed but it's unlikely to find a court willing to cede as much ground on Section 230 as Fields would like it to, even with the series of bad Section 230-related decisions that have recently plagued the California court system.


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  • identicon
    Anonymous Coward, 23 Nov 2016 @ 9:43am

    A policy that selectively prohibits ISIS members from opening accounts would necessarily be content based as Twitter could not possibly identify ISIS members without analyzing some speech, idea or content expressed by the would-be account holder: i.e. “I am associated with ISIS.”

    On the other hand, almost every website DOES have a policy prohibiting young children from opening accounts, due to COPPA. It kind of seems strange to have a policy that children cannot open accounts but terrorists can.

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 23 Nov 2016 @ 10:02am

      Re:

      The policy for children relies on the honor system; depending on children to NOT check a checkbox marked "I am 18 or older." You're suggesting that we also rely on the honor system for terrorists; they wouldn't check an "I am not a terrorist" checkbox.

      If the airlines had done this, 9/11 would have been averted.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Nov 2016 @ 11:05am

      Re:

      Why would you care if a terrorists has a social media account or not anyway?

      If you do not like what they have to say no one is making you listen and if you do want to listen if what they say is so bad it will only make you like them less.

      Law enforcement sure would like terrorists to communicate in a public forum, makes it easier to find and identify terrorists! Solves their 'going dark problem' too! Or do you think it would be better if terrorists kept their communications hidden from the public and law enforcement?

      If terrorists/racists/pedos/insert any bad type of person here/ want to spread their vile filth on the Internet, LET THEM!
      That will allow me to identify people I DO NOT want to associate with.

      Pushing that vile speech underground does nothing to stop it and only allows those people to hide their true beliefs.

      Seems like every time some pedo/terrorists/murderer does something bad you have his neighbors saying "But he always seemed so nice!"
      The more difficult you make it for someone to discuss their beliefs the hard it will be for you to identify the people you want to stay away from.

      reply to this | link to this | view in chronology ]

    • icon
      Mark (profile), 24 Nov 2016 @ 9:33am

      Re:

      Yep, there would be no way for a member of Isis to get past an "I am not a terrorist or terrorist sympathizer" checkbox on the account setup page.

      I'm sure no child under 13 has an account anywhere on the internet because of the precedent set by COPPA.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 25 Nov 2016 @ 8:44am

      Re:

      The age of the user is not a content-based restriction, so there's no 1st amendment issue there.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2016 @ 10:40pm

      Re:

      Children can be easily recognized without a lot of false positives being generated by the overzealous.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2016 @ 8:17am

      Re:

      Do you really think COPPA stops kids? No!

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 23 Nov 2016 @ 9:58am

    BUT..

    Can we sue the Cellphone services??
    Esp in other nations..
    I dont think they have the SAME protections..

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 23 Nov 2016 @ 10:03am

    @readDonaldTrump Can you believe Twitter allowing ISIS to take over Twitter. Well, I got the best minds on it and they are going to delete Twit..." [Page not found]

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 23 Nov 2016 @ 10:40am

    ISIS

    WHy doesn't she sue isis?

    Americans love to sue the biggest richest target, not the proper one.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Nov 2016 @ 10:44am

      Re: ISIS

      It's America, we are risk adverse. We have eliminated a lot of other issues so we hyper focus on less important ones elevating them to insanity.

      Case in point, murder someone or rob a bank and people give very little shit about you.

      Say the N-word and people want to ruin you and your family over it.

      reply to this | link to this | view in chronology ]

  • identicon
    Tiberius, 23 Nov 2016 @ 11:40am

    It's amazing to see the types of lawsuits that make news headlines daily in the U.S. I'm pretty sure it's because the legal system pretty much allows for it - my country has its problems but fortunately, frivolous court cases isn't really one of them. Tiberius

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 23 Nov 2016 @ 11:52am

    What's in a name?
    That which we call a Twitter
    by any other name
    would be just as full of Twits.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Nov 2016 @ 2:08pm

    Proposed order

    This court, having fully read and understood the briefs, hereby ORDERS:

    1a. Attorney's for plaintiff shall undergo training in the cannons of law
    1b. Provide this court with a certificate of successful completion within 180 days
    1c. Properly advise clients on the approbation of slinging torts at defendants whose hands are clean but have deep pockets.
    2. Costs, fees and expenses are awarded to defendant
    3. Said costs, fees and expenses are held jointly and severally among plaintiff and plaintiff's counsel
    4. Septuple damages are awarded to defendant
    5. neither the plaintiff nor plaintiffs counsel nor counsel's firm may file an action with any court wherever located until all costs, fees, expenses, and damages are paid in full, to include filing an appeal of this order.

    IT IS SO ORDERED

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 24 Nov 2016 @ 4:08am

    And if Twitter/Google/Facebook/Whoever shuts down or manages to successfully ban all terrorist-ey accounts then terrorism itself will magically disappear. Right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2016 @ 10:36pm

    I guess to go after domestic terrorists you'd have to sue I-10.

    reply to this | link to this | view in chronology ]


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