Once Again, Court Rejects Silly Claims That YouTube Provided Material Support For Terrorists

Legal Issues

from the that's-not-how-this-works dept

For the past few years we’ve been covering a whole series of cases, most of them filed by (I’m not making this up) a silly law firm by the name of 1-800-Law-Firm, trying to argue that various big internet companies provided material support to ISIS or other terrorists, and therefore owe tons of money to surviving relatives of people killed by ISIS or other terrorist organizations. There have been lawsuits against Twitter, Facebook and Google/YouTube. So far, all of these lawsuits have failed miserably — as they should.

Even if the plaintiffs could show that these platforms actively enabled terrorists to use their platform (which they do not, as all of them proactively look to remove terrorist related content), none of the cases makes an even half-hearted attempt to connect the (very unfortunate) deaths of their relatives to any actual content on these platforms. The lawsuits are basically “these bad people use Twitter/Facebook/YouTube, these people killed my relative, thus, those platforms owe me millions of dollars.” That, of course, is not how the law works.

In the case filed against Google, it was filed by a relative of someone who was killed in the horrific Paris attacks a few years back. The court had already thrown out the case last year, but allowed a third amended complaint to be filed, which has now been rejected as well (hat tip to Eric Goldman for blogging about this as well).

As with every other such case, the court relied on CDA 230 in throwing it out last year, but the lawyers tried again with an amended complaint, and have failed again. The new complaint made the same four claims the earlier filing did, and added two more, insisting that CDA 230 does not apply to any of them. Once again, the court says the old claims are easily barred under CDA 230:

Claims one through four seek to impose liability on Google for knowingly permitting ISIS and its followers to post content on YouTube…. These claims still ?inherently require[] the court to treat [Google] as the publisher or speaker of [third-party] content? because they ?require recourse to that content to establish liability or implicate a defendant?s role . . . in publishing or excluding third party communications.? … The [Third Amended Complaint] TAC alleges that Google ?knowingly provided? its YouTube platform and other services to ISIS, and that ISIS ?embraced and used? YouTube ?as a powerful tool for terrorism,? allowing it ?to connect its members and to facilitate [its] ability to communicate, recruit members, plan and carry out attacks, and strike fear in its enemies.?… It further alleges that Google ?refuse[d] to actively identify ISIS YouTube accounts? or to make ?substantial or sustained efforts to ensure that ISIS would not re-establish the accounts using new identifiers.? … Claims one through four allege that Google violated the material support statutes by permitting ISIS and its supporters to publish harmful material on YouTube, and by failing to do enough to remove that content and the users responsible for posting the material. These claims target Google?s decisions whether to publish, withdraw, exclude, or alter content, which is ?precisely the kind of activity for which section 230 was meant to provide immunity.? Roommates, 521 F.3d at 1170. ?[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.? Id. at 1170-71. Claims one through four remain ?inextricably bound up with the content of ISIS?s postings, since their allegations describe a theory of liability based on the ?essential? role that YouTube has played ?in the rise of ISIS to become the most feared terrorist organization in the world.?? …

In a contorted argument, Plaintiffs assert that they may rely upon third party content to support their claims without ?running afoul of Section 230.?… Although they do not tie this theory to any particular claim in the TAC, it appears to be their response to the court?s determination that the claims in the SAC were ?inextricably bound up with the content of ISIS?s postings.? … Plaintiffs offer a lengthy discussion of In re Incretin-Based Therapies Products Liability Litigation, 721 Fed. Appx. 580, 583 (9th Cir. 2017). There, the Ninth Circuit reversed a trial court?s determination that certain discovery was irrelevant to whether federal law preempted the state law claims, where the discovery was relevant to the merits of the state law claims themselves. According to Plaintiffs, In re Incretin-Based Therapies supports their argument that ?[e]vidence which would support? a finding that Google violated the ATA ?is not the same as holding [Google] responsible for the content of third parties.? … Plaintiffs? argument is hard to follow and not persuasive. In re Incretin-Based Therapies does not address section 230(c)(1) or the ATA. Plaintiffs? argument appears to be a variation on their previous contention that their claims are based upon ?Google?s provision of the means for ISIS followers to self-publish content, rather than challenging the actual content itself.? … The court rejected this argument, holding that Plaintiffs? allegations in the SAC were inconsistent with their attempt to avoid section 230 immunity by ?divorc[ing] ISIS?s offensive content from the ability to post such content.?… So too here. Plaintiffs do not allege that they have been harmed by the mere provision of the YouTube platform to ISIS and its followers. Instead, they allege that ?ISIS uses YouTube as a tool and a weapon of terrorism,? and that ISIS recruits, plans, incites, instructs, threatens, and communicates its terror message on YouTube. … Plaintiffs? claims ?are not premised solely on the theory that Google provided a publishing or communication platform to ISIS; they are further grounded in the allegation that Google failed to prevent ISIS from using YouTube to transmit its hateful message, which resulted in great harm.?….

In sum, the court concludes that Plaintiffs? claims one through four seek to treat Google as the publisher or speaker of ISIS?s YouTube videos.

Then, there’s an attempt to get around CDA 230 by saying that YouTube “recommends” ISIS videos (which it does not, but that’s not the issue at this stage of the game). Like many others in the past, here the lawyers tried to use the Roommates.com ruling to argue around CDA 230. If you don’t recall, in the Roommates case, the court rules that while most of Roommate’s activities were protected by CDA 230, one part that was not protected was a pulldown menu allowing people to prefer certain races — violating the Fair Housing Act. Since Roommates.com itself created the content in that pulldown, which violated the law, it was held liable for that content alone. Here, the lawyers tried to claim that YouTube recommending videos qualified for that kind of Roommates treatment. Except this is self-evidently wrong. Because Roommates only applied to content specifically created by the platform, while CDA 230 explicitly exempts editorial judgments by a platform. And recommending videos is clearly the latter, rather than the former:

Plaintiffs? ?new? theory fares no better this time around. The TAC does not contain any allegation that Google ?materially contribut[ed]? in any way to the content of ISIS videos by promoting ISIS-related content. It does not allege that Google?s content recommendation features either created or developed ISIS content, or played any role at all in making ISIS?s terrorist videos objectionable or unlawful.

As Eric Goldman notes, the court does go on a really random tangent, talking about “neutral tools,” which is completely meaningless here.

As for the new claims — five and six — the court is still unimpressed, more or less noting that this is just the lawyers trying to rephrase earlier, rejected claims:

Plaintiffs? ?new? concealment claim does little more than restate the material support claims in a slightly different form. All of those claims are barred by section 230(c)(1) as discussed above. Based on the allegations in the TAC, at its core, Plaintiffs? concealment claim ultimately seeks to hold Google liable for allegedly failing to prevent ISIS and its supporters from using YouTube, and by failing to remove ISIS videos from YouTube. As with claims one through four, the concealment claim ?requires recourse to that content? to establish any causal connection between Google permitting ISIS to use YouTube and the Paris attack. The claim thus ?inherently requires the court to treat [Google] as the ?publisher or speaker?? of ISIS content.

Claim six has similar problems:

As with claim five, Plaintiffs? IEEPA claim is a restated version of their material support claims. It is based on the allegation that Google provided services to ISIS by permitting ISIS supporters to use the YouTube platform, including allowing supporters to post videos (?received property or interest in property of ISIS?) and utilize YouTube?s functions (including ?downloading or copying videos?). This claim ultimately seeks to hold Google liable for failing to prevent ISIS and its supporters from using YouTube and failing to remove ISIS-related content from YouTube. As with the prior claims, the IEEPA claim ?requires recourse to that content? to establish any causal connection between YouTube and the Paris attack, and ?inherently requires the court to treat [Google] as the ?publisher or speaker?? of ISIS content

The court also spends some time pointing out that there is no “proximate causation” between YouTube allowing ISIS to use the platform and the attacks in question (which is the key underlying point behind all of this outside of the CDA 230 issue). It points to the 9th Circuit ruling in another one of these cases, Fields v. Twitter, in which the court made it clear that just because some terrorists may have used a social network doesn’t mean anyone killed by terrorists gets to sue social networks.

The court does allow for the lawyers to try one more time on one narrow issue. They had claimed that Google shared revenue with ISIS via its YouTube advertising program, which the court finds entirely unconvincing and dismisses — but notes that since it gave the lawyers a chance to amend other complaints, but hadn’t yet done so on the revenue sharing question, they could try again on that, though the court is clearly skeptical.

As Plaintiffs have already been given an opportunity to amend the complaint to avoid CDA immunity, all of their claims other than the revenue sharing claims are dismissed with prejudice. Since the court cannot conclude that further amendment of Plaintiffs? revenue sharing claims would be futile, they are granted one final opportunity to amend those claims in a manner consistent with Rule 11.

Given that these lawyers have tried these arguments so many times, I’m guessing they won’t be giving up just yet. But it seems like this case is destined for the same end result as all the others.

Filed Under: cda 230, intermediary liability, material support, reynaldo gonzalez, section 230, terrorism
Companies: facebook, google, twitter, youtube