from the decision-in-140-characters-or-less dept
As noted above, courts have repeatedly described publishing activity under section 230(c)(1) as including decisions about what third-party content may be posted online.... 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. But it is not clear to me why this difference matters for the purposes of section 230(c)(1). Under either theory, the alleged wrongdoing is the decision to permit third parties to post content – it is just that under plaintiffs’ provision of accounts theory, Twitter would be liable for granting permission to post (through the provision of Twitter accounts) instead of for allowing postings that have already occurred. Plaintiffs do not explain why this difference means that the provision of accounts theory seeks to treat Twitter as something other than a publisher of third-party content, and I am not convinced that it does. Despite being based on Twitter accounts instead of tweets, the theory is still based on Twitter’s alleged violation of a “duty . . . derive[d] from [its] status or conduct as a publisher.”Even if Section 230 wouldn't have resulted in the case being tossed, Judge William Orrick notes a number of other problems with the lawsuit, including that the claims in the lawsuit don't even make sense (that seems like a big problem). The judge first focuses on how the plaintiffs' arguments shift back and forth between whether it's the mere providing of service to ISIS members that's the problem or the failure of Twitter to prevent the spread of ISIS content. These two things are different, but the lawyers for the plaintiff don't do much to distinguish the two from one another.
Plaintiffs characterize these allegations as “focus[ed] on [Twitter’s] provision of . . . accounts to ISIS, not the content of the tweets.” ... But with the exception of the statement that “ISIS accounts on Twitter have grown at an astonishing rate,” ..., all of the allegations are accompanied by information regarding the ISIS-related content disseminated from the accounts. Plaintiffs allege not just that ISIS had approximately 70,000 Twitter accounts, but that ISIS used those accounts to post at least 90 tweets per minute, ... not just that Al-Furqan maintained a Twitter page, but that it maintained one “where it posted messages from ISIS leadership as well as videos and images of beheadings and other brutal . . . executions to 19,000 followers,” ... not just that Twitter failed to stop an ISIS-linked account from “springing right back up,” but that an inflammatory message was tweeted from this account following the shooting attack in San Bernadino, California in December 2015....That issue is a big part of the reason why Twitter's Section 230 defense works. The lawyers for the plaintiff argued that it wasn't a 230 issue because it's about the provisioning of services, not the content of the tweet, but their complaint focuses almost exclusively on the content, which clearly keeps liability off of Twitter.
The rest of the FAC is likewise 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. The FAC also includes a number of allegations specifically faulting Twitter for failing to detect and prevent the dissemination of ISIS-related content through the Twitter platform.
And then there's the other big, non-230, problem with the lawsuit: there's nothing whatsoever in the lawsuit arguing that Twitter had anything directly to do with the ISIS attack that killed Lloyd Fields.
The third problem with the provision of accounts theory is that plaintiffs have not adequately alleged causation. Although the parties dispute the exact formulation of the appropriate causal test for civil liability under the ATA, they agree that the statute requires a showing of proximate causation....The plaintiff, Tamara Fields, can still file an amended complaint that tries to fix these problems, but it's not clear how she'll get past them. I imagine that the various copycat lawsuits that have been filed against Twitter, Facebook and Google in the past few months will all face similar fates.
Even under plaintiffs’ proposed “substantial factor” test, ..., the allegations in the FAC do not support a plausible inference of proximate causation between Twitter’s provision of accounts to ISIS and the deaths of Fields and Creach. The only arguable connection between Abu Zaid and Twitter identified in the FAC is that Abu Zaid’s brother told reporters that Abu Zaid had been very moved by ISIS’s horrific execution of al-Kassasbeh, which ISIS publicized through Twitter.... That connection is tenuous at best regardless of the particular theory of liability plaintiffs decide to assert. But the connection is particularly weak under the provision of accounts theory because it is based on specific content disseminated through Twitter, not the mere provision of Twitter accounts.