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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  • icon
    That One Guy (profile), 5 Nov 2018 @ 3:46am

    "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.

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

    • icon
      hij (profile), 5 Nov 2018 @ 4:53am

      Re: "You again?!"

      It would also be nice for the press to stop posting repetitious tweets about politicians and let folks know about any firms that are preying on families' anger and despair to milk them of their money while wasting time in court.

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

  • identicon
    Anonymous Coward, 5 Nov 2018 @ 4:24am

    "this is the seventh time a federal court has tossed one of these suits."

    Sounds a bit vexatious.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 5 Nov 2018 @ 5:43am

    Typical techdirt commenters:

    -It's not Twitter's fault.

    -Good riddance to Gab. They were Nazis anyway.

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

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 6:51am

      Re: Typical techdirt commenters:

      Thought I read that bigot brigade was back online.

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

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 8:51am

      Re: Typical techdirt commenters:

      Wow, it's almost like one of those websites caters to the users that the other website banned.

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

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 10:50am

      Re: Typical blue commenter “I never promised to leave forever”

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

      • identicon
        Anonymous Coward, 5 Nov 2018 @ 8:23pm

        Re: Re: Typical blue commenter “I never promised to leave forever”

        Not sure this is blue to be honest, it's a lot shorter than blue's typical dreck. And he didn't even bother to come up with a shitty pun name to make sure we know it's not (but actually) him.

        A+ for the effort though.

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

  • icon
    Stephen T. Stone (profile), 5 Nov 2018 @ 5:46am

    this is the seventh time a federal court has tossed one of these suits.

    “…and we have become exceedingly efficient at it.”

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

  • icon
    Toom1275 (profile), 5 Nov 2018 @ 5:47am

    It's the lawter version of pokémon: "Loss in a Federal Circuit Court - gotta catch 'em all!"

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

    • icon
      That One Guy (profile), 5 Nov 2018 @ 5:58am

      'ONE of these judges HAS to see it our way!'

      'If at first you don't succeed, file file again. And again. And again...'

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

      • icon
        JoeCool (profile), 5 Nov 2018 @ 6:51am

        Re: 'ONE of these judges HAS to see it our way!'

        I expect they're venue shopping to some extent. After all, only have to win ONCE to get that huge pay-off.

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

        • icon
          That One Guy (profile), 5 Nov 2018 @ 7:00am

          '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.

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

        • icon
          Toom1275 (profile), 5 Nov 2018 @ 10:27am

          Re: Re: 'ONE of these judges HAS to see it our way!'

          And the Supreme Court probably won't be likely to hear any appeals until the circuit courts stop being unanimous.

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

      • icon
        OldMugwump (profile), 5 Nov 2018 @ 7:22am

        Re: 'If at first you don't succeed, file file again. And again.

        "... then QUIT! There's no point in being a damn fool about it."

        - W. C. Fields

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

        • icon
          JoeCool (profile), 5 Nov 2018 @ 2:36pm

          Re: Re: 'If at first you don't succeed, file file again. And again.

          I always liked the version - "If at first you don't succeed, destroy all evidence you tried in the first place."
          ;)

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

  • identicon
    Pixelation, 5 Nov 2018 @ 8:09am

    Popcorn!

    I hope the law firms in these cases start using the Prenda method. That would be some fine entertainment.

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

  • identicon
    Glenn, 5 Nov 2018 @ 8:16am

    "Paul killed Peter. It's Joe's fault!" (Joe runs the grocery store where Peter's wife shopped; she might have talked to him once.)

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

  • icon
    Gary (profile), 5 Nov 2018 @ 8:36am

    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.

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

  • identicon
    Anonymous Coward, 5 Nov 2018 @ 9:06am

    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.

    https://www.seattletimes.com/business/technology/seattle-area-company-helps-fringe-site-gab-r eturn-in-wake-of-pittsburgh-synagogue-shooting/

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

    • identicon
      Anonymous Coward, 5 Nov 2018 @ 10:16am

      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?

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

      • identicon
        Anonymous Coward, 5 Nov 2018 @ 10:53am

        Re: Re: rent seeking double standard?

        Of course not. He spent three paragraphs deliberately avoiding the difference like it was a dog turd in the park grass.

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

    • icon
      James Burkhardt (profile), 5 Nov 2018 @ 11:09am

      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.

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

  • identicon
    Anonymous Coward, 5 Nov 2018 @ 2:09pm

    The elephant (gun) in the room

    As some as already identified here, it wasn't the words hosted on a website that caused the fatal cessation of life, but rather the ballistic manifestation of someone's hatred.

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


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