Russian Troll Farm Tries Again To Sue Facebook, Despite Having Its Original Complaint Dismissed On 230 Grounds

from the try,-try-again dept

Last month we wrote about how Section 230 of the Communications Decency Act did exactly what it was supposed to do in protecting Facebook from a bogus lawsuit from a Russian news trolling operation, called Federal Agency of News (FAN). Facebook had kicked FAN off its platform soon after the 2016 election, when it realized it was a Russian operation spewing nonsense, often targeting people voting in the 2016 US election. FAN somehow found US lawyers from a previously reputable firm to represent them in this quixotic attempt to sue Facebook. The whole thing flopped, of course, because Facebook is free to kick whomever it wants off its platform, including Russian trolls seeking to spread fake news to influence an election. The court dismissed the case easily under Section 230. All of the Russian attempts to claim it violated their 1st Amendment rights, California civil rights, breach of contract, etc., went nowhere fast.

But, since the court left FAN free to try an amended complaint, it has now filed an amended complaint (first spotted by John Roddy). Somewhat incredibly, it does not appear to make any new arguments. It just repeats the old ones with more emphasis.

The key to the new filing is an incredibly, laughably weak attempt to connect Facebook to the US government, in an attempt to argue that the Constitution applies to Facebook as well. This is almost comically badly done in the complaint. It basically looks for any scrap of evidence of Facebook working with the US government to combat Russian election interference as somehow proof that Facebook magically becomes a state actor.

The United States government has been complicit in Facebook’s efforts to rid the platform of Russian language accounts.

In a United States Intelligence Community report regarding alleged Russian activities and intentions in the 2016 United States presidential election, published in January 2017, the United States Intelligence Community referred to the IRA as an agency of “professional trolls” whose likely financier is “a close Putin ally with ties to Russian intelligence.” United States Intelligence Community, Assessing Russian Activities and Intentions in Recent U.S. Elections, available at: https://www.dni.gov/files/documents/ICA_2017_01.pdf.

[....]

On September 21, 2017, Facebook’s General Counsel, Colin Stretch, stated that Facebook would provide the United States Congress with information related to the 3,000 advertisements Facebook previously located. Colin Stretch, Facebook to Provide Congress With Ads Linked to Internet Research Agency, available at: https://newsroom.fb.com/news/2017/09/providing-congress-with-ads-linked-to-internet-researchagency/.

[....]

On or about September 21, 2017, co-founder, chairman and chief executive officer of Facebook, Mark Zuckerberg, published a video on Facebook explicitly stating that Facebook is “actively working with the U.S. government on its ongoing investigations into Russian interference” and providing information to the United States Department of Justice Office of Special Counsel (“Special Counsel”), headed by Robert Mueller.

Sorry, but sharing some information on Russian interference with the US government does not, in any way, make Facebook a state actor. Even if what happened was presented honestly (and it is not), at best, it would show that the trolls have an argument against the US government for supposedly telling platforms to remove the Russian trolls' content and accounts. But that's clearly not what happened. And nothing in the complaint comes anywhere close to the standards necessary to turn a private company into a public state actor.

But, hey, FAN's lawyers seem to be happy to give it a shot.

The internet is a public forum available to all persons around the world to post or otherwise publish news articles. It also is intended to allow persons around the world, including citizens of the United States to access news and opinions from entities around the world.

The internet may be a public forum, but Facebook is a private company guys. Nice try.

The “Rules of Facebook” state that anyone who abides by Facebook’s rules and signs a user agreement is entitled to use its forum.

They also state that Facebook can remove your account, so, who cares?

The constitutional protections of the Bill of Rights of the U.S. Constitution apply to all public fora and, since Facebook is a public forum, or at least a limited public forum, the constitutional protections of the Bill of Rights apply to Facebook and the actions it takes to curtail free speech on the internet.

This is not how any of this works -- and indeed, the court, in its ruling last month, totally rejected this. From that ruling, which the lawyers here ignore:

Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment. For instance, in Prager Univ. v. Google LLC, this Court rejected the notion that “private social media corporations . . . are state actors that must regulate the content of their websites according to the strictures of the First Amendment” under public forum analysis. 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (emphasis in original). In addition, the Ebeid court rejected the argument that Facebook is a public forum. 2019 WL 2059662, at *6. Moreover, in Buza v. Yahoo!, Inc., the court held that the plaintiff’s assertion that “Yahoo!’s services should be seen as a ‘public forum’ in which the guarantees of the First Amendment apply is not tenable under federal law. As a private actor, Yahoo! has every right to control the content of material on its servers, and appearing on websites that it hosts.” 2011 WL 5041174, at *1 (N.D. Cal. Oct. 24, 2011). Furthermore, in Langdon v. Google, Inc., the court held that “Plaintiff’s analogy of [Google and other] Defendants’ private networks to shopping centers and [plaintiff’s] position that since they are open to the public they become public forums is not supported by case law.” 474 F. Supp. 2d 622, 632 (D. Del. 2007).

At bottom, the United States Supreme Court has held that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.

This lawsuit's weak attempt to tie Facebook to the US government is not going to work. This is just Russian trolls throwing money away to expensive US lawyers.

In addition, Facebook also acts at the behest of the government of the United States in its attempts to regulate free speech.

If this were true (and it's not), then their complaint would be with the US government and not Facebook. But you don't see them suing the US government.

Facebook founder and CEO, Mark Zuckerberg, published a video on Facebook explicitly stating that Facebook is “actively working with the U.S. government on its ongoing investigations into Russian interference.” In addition, it is believed that many of Facebook’s current security personnel are former members of the U.S. intelligence and law enforcement communities.

None of that makes Facebook a state actor.

This agreement between Facebook and the U.S. government constitutes a conspiracy to deny FAN its free speech rights guaranteed under the U.S. Constitution.

Bring on the RICO claims...

This lawsuit is going to get tossed. And probably pretty quickly. I'm guessing the judge won't be particularly happy about it. But, hey, the lawyers will get their cash for filing what they must know is a laughably silly amended complaint.

Filed Under: cda 230, fake news, russian trolls, section 230
Companies: facebook, federal agency of news


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  • identicon
    Anonymous Coward, 23 Aug 2019 @ 6:52am

    The REAL reasons for this lawsuit

    You really don't understand how it works in Russia.
    The Russian government probably allocated a big budget to this lawsuit.
    I suppose that 15%-30% if this budget goes to US lawyers, and the rest is split between FAN owners and to Russian official who allocated the budget.

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

  • icon
    That One Guy (profile), 23 Aug 2019 @ 7:03am

    Makes sense

    But, since the court left FAN free to try an amended complaint, it has now filed an amended complaint (first spotted by John Roddy). Somewhat incredibly, it does not appear to make any new arguments. It just repeats the old ones with more emphasis.

    Everyone knows that if your argument falls flat all you need to do is make the exact same argument louder and it magically becomes convincing. I'm sure that'll work wonders on judges too.

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

    • icon
      Vermont IP Lawyer (profile), 23 Aug 2019 @ 8:08am

      Re: Makes sense

      I forget the source of the following but it seems on point: "If you can win on the law, argue the law. If that doesn't work, argue the facts. If neither of those work, pound on the table."

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

  • identicon
    State Actor, 23 Aug 2019 @ 7:10am

    Facebook is not a state actor and neither are any other non government presence on the internet. This fact seems to fall upon deaf ears, or maybe they simply have their fingers in their ears whilst singing LaLaLa, I can't hear you.

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

  • icon
    Anonymous Anonymous Coward (profile), 23 Aug 2019 @ 7:49am

    There are ways but...

    From https://blogs.lawyers.com/attorney/civil-rights/private-parties-as-state-actors-for-purposes-of-sect ion-1983-24284/

    "Private Parties As State Actors For Purposes Of Section 1983 Blog Home Posted on December 21, 2012 in Civil Rights

    “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law….” 42 U.S.C. § 1983.

    Thus, to establish a claim under Section 1983, a plaintiff must plead a deprivation of a right secured by the Constitution and the laws of the United
    States that was committed by a person acting under color of state law. Machon
    v. Pennsylvania Dept. of Public Welfare, 847 F.Supp.2d 734 (E.D.Pa. 2012). Where a plaintiff lodges a Section 1983 claim against a private party (as opposed to a governmental entity), the defendant can be held liable where he is “fairly said to be a state actor.” Pugh v. Downs, 641 F. Supp.2d 468, 472 (E.D.Pa. 2009). See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982) (stating that our cases have insisted that conduct allegedly causing deprivation of federal rights be fairly attributable to the state).

    A private party can be “fairly said to be a state actor” for purposes of Section 1983 under four tests. First, under the “close nexus” test a private party can be fairly said to be a state actor where “there is a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action of the latter may fairly be treated as that of the state itself.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (holding state responsible for private decision where it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State).

    Second, under the “symbiotic relationship” test a private party can be fairly said to be a state actor where “the state has so far insinuated itself into a position of interdependence” with a private party that “it must be recognized as a joint participant in the challenged activity.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding privately owned restaurant’s refusal to serve an African American customer constituted state action where the restaurant leased space from a parking garage owned by state agency).

    Third, under the “joint action” test a private party can be fairly said to be a state actor where a private party is a “willful participant in joint action with the State or its agents.” Lugar, 457 U.S. at 941, 102 S.Ct. 2744
    (1982).

    Fourth, under the “public function” test a private party can be fairly said to be a state actor where the private party has been “delegated…a power traditionally exclusively reserved to the State.” Terry v. Adams, 345 U.S. 461, 468-470, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (state action found where private actor administered election of public officials). "

    Seems like the lawyers in this case missed these tests. But, far be it for me to interpret the legalese and know for certainty if any of them apply in this case, or if there are other rules that might make these tests inapplicable under a different ruling or doctrine.

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

  • This comment has been flagged by the community. Click here to show it
    icon
    Zof (profile), 23 Aug 2019 @ 7:57am

    This is the spamming company

    The one that had been doing click-spam for years on Facebook. That's based in the Ukraine. The folks Mueller tried to pretend were "russian state actors" but weren't. I mean, not unless buying ads after the election was supposed to influence it. Most of the ads they bought were after it was over.

    Kinda hard to influence something after it's over. Aren't you folks done with this fake nonsense yet? You get that nobody buys it now that Mueller admitted it was all a hoax on CSPAN right?

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

    • icon
      Stephen T. Stone (profile), 23 Aug 2019 @ 8:10am

      Plaintiff argues that “Mueller admitted it was all a hoax”. But Plaintiff offers no facts in support of their claim. The claim is summarily dismissed.

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

    • This comment has been flagged by the community. Click here to show it
      icon
      seedeevee (profile), 23 Aug 2019 @ 8:51am

      Re: This is the spamming company

      It seems that some at TechDirt and many of its readers are really liking this anti-Russian hysteria and associated benefits like censoring (flagging).

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

      • identicon
        Anonymous Coward, 23 Aug 2019 @ 9:19am

        Re: Re: This is the spamming company

        It seems that a few of Techdirt's readers are really liking their echo chambers and associated benefits like baseless trolling (being morons).

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

      • identicon
        Baron von Robber, 23 Aug 2019 @ 9:38am

        Re: Re: This is the spamming company

        And as self-evident, we don't suffer fools.

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

      • icon
        Stephen T. Stone (profile), 23 Aug 2019 @ 11:05am

        A recap, for those who’ve missed it:

        Moderation is a platform operator saying “we don’t do that here”. Discretion is you saying “I won’t do that there”. Censorship is someone saying “you can’t do that anywhere” before or after threats of either violence or government intervention.

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

      • icon
        Toom1275 (profile), 23 Aug 2019 @ 11:53am

        Re: Re: This is the spamming company

        [seedeevee offers no facts in his Complaint to support this proposition.]

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

    • identicon
      Anonymous Coward, 23 Aug 2019 @ 7:59pm

      Re: This is the zof spamming company

      A one man band of bullshit, conspiracy and garbage.

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

  • identicon
    Anonymous Coward, 23 Aug 2019 @ 8:25am

    A Russian company suing because of Section 230?

    I think we found John Smith, you guys!

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

  • This comment has been flagged by the community. Click here to show it
    icon
    seedeevee (profile), 23 Aug 2019 @ 8:48am

    Masnick Sees Russians

    I see a xenophobe and the continuing dumbassification of America.

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

    • identicon
      Anonymous Coward, 23 Aug 2019 @ 8:00pm

      Re: Masnick Sees Russians and here they are

      Sup Ivan.

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

    • icon
      Mike Masnick (profile), 23 Aug 2019 @ 11:24pm

      Re: Masnick Sees Russians

      Uh, dude, this is a company that everyone admits is from Russia. So, wtf?

      Also, I see that nearly all of your comments seem to be focused on weird attacks on anyone who even so much as mentions Russia.

      I mean, at least vary it up a little or people might realize that you're kinda being obvious.

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

    • identicon
      Anonymous Coward, 25 Aug 2019 @ 1:36pm

      Re: Masnick Sees Russians

      “I see a xenophobe”

      And I see some guy who’s probably being payed slightly better then the conscripts at his computer in some part of the motherland doing the glorious job of annoying people on the internet wishing he was back home with his wife instead of talking to everyone because his president who drives a rich guys car lives in a rich guys house is telling key warriors like him that if they just keep doing what they are doing one day they will have what he does too. Somehow.

      Dude I honestly pity you. Because unless your going down on vlad your probably just like so many others who are living in the aftermath of soviet glory as a person. Probably just sitting at some troll farm taking orders from some guy you hate “or don’t I don’t know” because you think it’s going to get you a better place or position then just being Igor troll sitting in front of some command screen “fighting against imperialist” or some dumb sell line they give everyone who joins some branch of the military.

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

  • identicon
    Anonymous Coward, 23 Aug 2019 @ 9:08am

    In Russia...

    Plaintiff Federal Agency of News LLC is a corporation organized and existing under the laws of the Russian Federation with its principal place of business in Saint Petersburg, the Russian Federation.

    ...

    Plaintiff Evgeniy Lvovich Zubarev is an individual currently residing in Saint Petersburg, the Russian Federation. Mr. Zubarev is the sole shareholder and General Director of FAN.

    ... free speech rights guaranteed under the U.S. Constitution.

    Well if you like our laws so much, why don't you move here?

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


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