Yet Another Court Says Suing Twitter For Terrorist Acts Is A Waste Of Everyone's Time

Legal Issues

from the litigation-as-junk-mail-as-a-service dept

Every tragedy should be exploited. That’s the theory behind a string of Excolo Law and 1-800-LAW-FIRM lawsuits that seek to hold social media companies responsible for acts of terrorism. So far, not a single court has been willing to ignore Section 230 of the CDA or the First Amendment to give these opportunists any satisfaction. Notwithstanding some very bizarre arguments from one Ninth Circuit judge, it’s been a long run of shutouts for lawyers I fucking hope are working on contingency.

However you may feel about social media companies’ efforts to cut down on “terrorist” content, the reality of the situation is Twitter, Facebook, et al are not directly or indirectly responsible for acts of violence. Moderation at scale is impossible and allowing litigants to target social media companies directly is only going to result in lousier moderation, rather than whatever it is each litigant desires. (See also: numerous lawsuits about “anti-conservative bias.”)

This lawsuit is a particularly durable loser. Eric Goldman has the details at his blog. How many times do litigants need to be told “No?” Well, I told you once and I told you twice, but you never listen to my advice:

This lawsuit alleges that social media providers contributed to the 2016 Pulse Nightclub terrorist attack in Orlando that killed 49 people and injured dozens more. If that sounds familiar, that’s because those facts formed the basis of the Crosby v. Twitter litigation from Michigan, which failed in the lower court in 2018 and then on appeal to the Sixth Circuit in 2019. In a litigation move I’ll charitably characterize as tenacious, after the emphatic loss in the 6th Circuit, the plaintiffs’ lawyers immediately recruited new plaintiffs and filed a new lawsuit in Florida over the exact same terrorist attack. The do-over attempt works about as well as you would expect.

Three attempts. Three losses. And since these law firms apparently have unlimited money to blow, the lawsuit was refiled in a different jurisdiction. Not that it changed anything. It certainly didn’t make the lawyering any better. As Goldman points out, the courts didn’t limit themselves to criticizing the weak legal arguments. One court took time to chastise the law firm for its inability to follow the court’s formatting rules. It may seem petty but it’s important: if you can’t follow easy-to-follow rules, chances are you’re not paying that much attention when loading the court up with lawsuits so baseless they may as well be pro se.

Welcome to pandemic litigation, punks. Before informing the plaintiffs (yet again!) of the weakness of their arguments, the court reminds their representatives that this kind of thing isn’t making the court any more sympathetic to their arguments. From the decision [PDF]:

“Filing identical lawsuits in multiple district courts is abusive and wasteful of judicial resources.” Daker v. Bryson, No. 5:15-cv-00088-TES-CHW, 2019 U.S. Dist. LEXIS 27392, at *9 (M.D. Ga. Feb. 21, 2019). While Plaintiffs’ counsel may have selected different named Plaintiffs with which to do so, this is essentially what he has done. Despite the outcome of dismissal in the Michigan Case, Plaintiffs’ counsel filed the same lawsuit—with different Plaintiffs—here in the Middle District of Florida.

The court goes on to point out the obvious: a terrorist committed the act of terrorism (the Pulse nightclub shooting) but the plaintiffs have chosen to sue social media companies rather than the person who killed their loved ones. Suing the shooter’s relatives would be a similar waste of time as blood draws from stones are seldom effective, but suing social media companies isn’t the better option.

The court dismisses the lawsuit. But, inexplicably, it allows the plaintiffs to try again. So far, the plaintiffs have had six chances to compose an actionable claim. Somehow this court thinks giving them a seventh chance is in everyone’s best interest — even the court that just said this was a “waste of judicial resources.”

As discussed above, Plaintiffs’ counsel has essentially had six opportunities to assert the allegations in the TAC—two complaints in the Michigan Case and four here. In light of this, the Court would like to better understand from Plaintiffs why leave to amend should be granted after Plaintiffs’ counsel has been, as of yet, unable to cure the deficiencies in the TAC. Therefore, the Court will defer ruling on Plaintiffs’ request for leave to amend and will set this issue for a brief telephonic status conference.

Chances are there will be no arguments that move the court to give the plaintiffs leave to amend after this conference. But the door is still slightly open when it should have been slammed shut by this judge. So, this means more tax dollars will be wasted in addition to whatever fees the law firm has collected from the crime victims it’s exploiting.

This is not to make light of the tragic circumstances that led to these lawsuits. The families of the victims have suffered unimaginable damage. But this has nothing to do with Facebook, Twitter, or any other social media network. No court is going to find in their favor — not unless they want to do some legislating from the bench. These companies are doing what they can to limit the spread of content that might radicalize impressionable people. It’s an impossible job but someone’s trying to do it. And the only people responsible for acts of terrorism are the people committing acts of terrorism.

Filed Under: material support for terrorism, section 230, social media, terrorism
Companies: twitter

Latest Garbage Twitter/Terrorism Lawsuit Is The Stupidest Twitter/Terrorism Lawsuit

Legal Issues

from the keep-your-receipts,-plaintiffs dept

Because there’s no shortage of people willing to pay money for the thrill ride that is losing a lawsuit in federal court, 1-800-LAW-FIRM and Excolo Law remain viable entities. The lawsuits they bring aren’t viable, but presumably retainers have been collected before the inevitable process of dismissal-appeal-dismissal begins.

These two firms are behind most of the lawsuits we’ve covered featuring plaintiffs attempting to hold a number of social media platforms responsible for acts of terrorism. The underlying events are tragic, but these lawsuits aren’t the answer. They’re ridiculous. Despite not having racked up a win at any level of the court system, the lawsuits continue to be filed. This doesn’t reflect well on the law firms specializing in taking money from victims of terrorist attacks while offering them false hope of closure, if not actual compensation.

The latest lawsuit filed by these firms is only novel in the respect that it features a Dallas transit officer as a plaintiff, rather than someone from the private sector. Retana was wounded in the ambush of Dallas law enforcement officers back in 2016. This is where the Twitter+terrorists boilerplate — which fills most of the lawsuit’s 96 pages [PDF] — gets really weird. (h/t Eric Goldman)

To get around the obvious Section 230 roadblock, these lawsuits invoke the US Anti-Terrorism Act (ATA). The filings tend to spend numerous pages detailing the history of whatever terrorist organization is relevant to the case, followed by a bunch of screenshots of supposed members of these groups utilizing Twitter, Facebook, et al. With this, the plaintiffs hope to convince a judge that the mere existence of terrorists on social media networks is “material support for terrorism” — a violation of multiple anti-terrorism laws.

So far, this hasn’t worked. Courts have found social media companies are not directly or indirectly responsible for terrorist acts. This lawsuit deploys the same tactic, spending a great deal of time discussing terrorist organization Hamas. After 77 pages discussing Hamas and its use of social media, the lawsuit tries to tie anti-terrorism laws to social media companies and the Dallas shooter with this single, conclusory (in the legal sense, not the literal sense) sentence.

Micah Johnson was radicalized, in part, by these organizations calling for the murders of police officers.

The suit then spends another several pages stating that the shooter’s “liking” of certain social media pages and accounts calling for police officers to be killed is evidence of his radicalization by Hamas. Why? Well, apparently it’s because some of these online groups have also expressed support for Hamas.

There’s no solid connective tissue in this lawsuit. There are a bunch of inferences, but they’re spectacularly weak. Nothing prior to this paragraph makes any explicit connection between the shooter’s actions and the terrorist organization the lawsuit needs to convert a clear Section 230 case into an ATA case. Here’s the law firms’ embarrassing attempt to tie this unrelated mess together.

Micah Johnson was radicalized by HAMAS’ use of social media. This was the stated goal of HAMAS. Johnson then carried out the deadly attacks in Dallas. Conducting terrorist acts in the United States via radicalized individuals is a stated goal of HAMAS.

This follow-up is particularly bold, considering the lawsuit cannot make a strong case for this sentence, much less lawsuit itself.

But for HAMAS’ postings using Defendants’ social media platforms, Johnson would not have engaged in his attack on the Dallas Police.

That’s an argument no one has made — not even those who investigated the shooter and the shooting. Here’s what the shooter himself had to say about his motivations:

The suspect said he was upset about Black Lives Matter. He said he was upset about the recent police shootings. The suspect said he was upset at white people. The suspect stated he wanted to kill white people, especially white officers. …The suspect stated that he was not affiliated with any groups, and he did this alone.

If you don’t consider the shooter to be a credible source, here’s the conclusions law enforcement investigators arrived at:

Two law enforcement officials told NPR’s Dina Temple-Raston that they believe the suspect had been planning an attack for some time and acted on his own. They added that they have not identified a connection between the suspect and any international terrorism or domestic extremist groups.

The shooter left behind a “manifesto.” Nothing in it declared any support for any terrorist groups. It spoke only of groups like Black Lives Matter and an urge to kill police officers for killing black Americans.

This makes the extraordinarily weak lawsuit even weaker. The law firms’ reliance on a “material support for terrorism” theory has yet to find a judge willing to grant these arguments any credence. This one manages to be even worse than the weak lawsuits they’ve filed to this point. They can’t even show a credible connection between the gunman and a terrorist group, much less how this is all social media’s fault. Until the law firms manage to somehow top this, this is the bottom of the law firms’ barrel of barrel-bottom scrapings.

Filed Under: cda 230, intermediary liability, material support for terrorism, section 230, terrorism
Companies: 1800 law firm, excolo law, twitter

Loss In 9th Circuit Appeals Court Isn't Slowing 1-800-LAWFIRM's Lawsuit Crusade Against Social Media Companies

Legal Issues

from the 'I-have-not-yet-begun-to-lose!'---800LAWFIRM-rep-probably dept

1-800-LAWFIRM’s oblique assault on Section 230 continues. This firm, along with Excolo Law, have been behind several Plaintiff v. Social Media lawsuits seeking to hold Facebook, Twitter, YouTube, etc. responsible for acts of terrorism. The legal theories are as terrible as they are long-winded. In an effort to route around Section 230 immunity, these firms have tried to portray the mere existence of terrorist groups on social media platforms as active material support for terrorism by tech companies. But Section 230 itself is also targeted, just in case the plaintiffs happen to luck into a federal judge willing to punch holes in immunity.

So far, none of these efforts have been successful. The Ninth Circuit Appeals Court recently rang up another loss for 1-800-LAWFIRM, finding none of its arguments credible. Unfortunately, it did not go so far as to reaffirm Section 230 immunity, limiting itself to 1-800-LAWFIRM’s novel legal theories about the Anti-Terrorism Act (ATA). But, as Cathy Gellis noted in her coverage of the decision, this isn’t necessarily a bad thing. By focusing on the ATA, Section 230 remains undamaged, and doesn’t draw the attention of enterprising politicians who might try to “do something” (terrible) to keep terrorists from using social media platforms.

Unfortunately, terrorists continue to kill and injure people, providing these law firms with clients hoping to extract payment from tech companies as compensation for death and injury caused by terrorists. As Eric Goldman notes, the Ninth Circuit loss has had no deterrent effect, apparently. But this loss possibly explains why the latest lawsuit [PDF] has been filed in Illinois, rather than in California (where the social media defendants are headquartered) like the law firm’s previous attempts. Illinois is the plaintiff’s home state, which gives the venue switch some legal grounding. More importantly, it moves the battle to the Sixth Circuit, where 1-800-LAWFIRM has yet to be shut down at the appellate level.

The lawsuit is exceedingly long. It runs 128 pages and 663 paragraphs. Is it worth reading? Not really. Not unless you really need a blow-by-blow account of social media use by terrorists over the years, occasionally punctuated with things like this, presumably to remind the judge there’s a personal injury lawsuit buried in all this exposition.

ISIS used and relied on Twitter, Facebook, and YouTube as among its most important tools to facilitate and carry out its terrorist activity, including the terrorist attacks in which ISIS murdered 130 individuals and injured Mandy Palmucci.

The lawsuit contains the usual bad assertions about content moderation, or perceived lack thereof. It claims YouTube could easily police the hundreds of thousands of hours of footage submitted every day. The same goes for Twitter, which supposedly should be able to maintain strict control of millions of tweets flowing from its platform daily. It cites one “expert” who claims terrorist content could be as easily monitored as child pornography but glosses over the part where the current CP monitoring system was years in development and required active participation of multiple law enforcement agencies from around the world. And, unlike child porn, there are several reasons “terrorist content” could remain live, considering its use to journalists, activists, and law enforcement investigators.

The whole thing redefines the word “active” to mean ad placement by algorithm or copycat “terrorist” accounts springing up on social media services to replace those shut down by platforms. The legal reps would like the judge to believe that any terrorist content anywhere on these platforms is evidence of material support for terrorism. It’s a ridiculous argument and it’s unlikely to end up in the hands of a sympathetic judge, no matter which circuit it’s filed in. The Ninth Circuit decision may not be precedential in this circuit, but it can still be instructive. Someone may still find a way to damage Section 230 immunity by linking it to worldwide terrorism, but it won’t be these lawsuits.

Filed Under: cda 230, intermediary liability, liability, material support for terrorism, section 230, social media, terrorism
Companies: 1-800-lawfirm, facebook, twitter

Ninth Circuit Shuts Down 'Terrorists Used Twitter' Case But Not Because Of Section 230

Legal Issues

from the this-is-ok-too dept

With the event at Santa Clara earlier this month, and the companion essays published here, we’ve been talking a lot lately about how platforms moderate content. It can be a challenging task for a platform to figure out how to balance dealing with the sometimes troubling content it can find itself intermediating on the one hand and free speech concerns on the other. But at least, thanks to Section 230, platforms have been free to do the best they could to manage these competing interests. However you may think they make these decisions now, they would not come out any better without that statutory protection insulating them from legal consequence if they did not opt to remove absolutely everything that could tempt trouble. If they had to contend with the specter of liability in making these decisions it would inevitably cause platforms to play a much more censoring role at the expense of legitimate user speech.

Fearing such a result is why the Copia Institute filed an amicus brief at the Ninth Circuit last year in Fields v. Twitter, one of the many “how dare you let terrorists use the Internet” cases that keep getting filed against Internet platforms. While it’s problematic that they keep getting filed, they have fortunately not tended to get very far. I say “fortunately,” because although it is terrible what has happened to the victims of these attacks, if platforms could be liable for what terrorists do it would end up chilling platforms’ ability to intermediate any non-terrorist speech. Thus we, along with the EFF and the Internet Association (representing many of the bigger Internet platforms), had all filed briefs urging the Ninth Circuit to find, as the lower courts have tended to, that Section 230 insulates platforms from these types of lawsuits.

A few weeks ago the Ninth Circuit issued its decision. The good news is that this decision affirms that the end has been reached in this particular case and hopefully will deter future ones. However the court did not base its reasoning on the existence of Section 230. While somewhat disappointing because we saw this case as an important opportunity to buttress Section 230’s critical statutory protection, by not speaking to it at all it also didn’t undermine it, and the fact the court ruled this way isn’t actually bad. By focusing instead on the language of the Anti-Terrorism Act itself (this is the statute barring the material support of terrorists), it was still able to lessen the specter of legal liability that would otherwise chill platforms and force them to censor more speech.

In fact, it may even be better that the court ruled this way. The result is not fundamentally different than what a decision based on Section 230 would have led to: like with the ATA, which the court found would have required some direct furtherance by the platform of the terrorist act, so would Section 230 have required the platform’s direct interaction with the creation of user content furthering the act in order for the platform to potentially be liable for its consequences. But the more work Section 230 does to protect platforms legally, the more annoyed people seem to get at it politically. So by not being relevant to the adjudication of these sorts of tragic cases it won’t throw more fuel on the political fire seeking to undermine the important speech-protective work Section 230 does, and then it hopefully will remain safely on the books for the next time we need it.

[Side note: the Ninth Circuit originally issued the decision on January 31, but then on 2/2 released an updated version correcting a minor typographical error. The version linked here is the latest and greatest.]

Filed Under: 9th circuit, anti-terrorism act, cda 230, material support for terrorism, section 230, terrorism
Companies: twitter

Court Dismisses — For A Second Time — Lawsuit Seeking To Hold Facebook Responsible For Acts Of Terrorism

Legal Issues

from the when-Plan-B-is-to-make-even-worse-arguments dept

Back in May of last year, a New York federal court tossed two lawsuits from plaintiffs attempting to hold social media companies responsible for terrorist attacks. Cohen v. Facebook and Force v. Facebook were both booted for failing to state a claim, pointing out the obvious: the fact that terrorists use social media to recruit and communicate does not somehow turn social media platforms into material support for terrorism.

Both lawsuits applied novel legal theories to internet communications in hopes of dodging the obvious problems posed by Section 230 immunity. None of those were entertained by the New York court, resulting in dismissals without prejudice for both cases.

Rather than kick their case up the ladder to the Appeals Court, the Force plaintiffs tried to get a second swing in for free. The plaintiffs filed two motions — one asking the judge to reconsider its dismissal ruling and the other for permission to file a second amended complaint.

As Eric Goldman points out on his blog, the judge’s decision to address both of these filings at once makes for difficult reading. The end result is a denial of both motions, but the trip there is bumpy and somewhat incoherent.

Once the court moves past the plaintiffs’ attempt to skirt Section 230 by re-imagining its lawsuit as an extraterritorial claim, it gets directly to the matter at hand: the application of Section 230 immunity to the lawsuit’s claims. The plaintiffs performed a hasty re-imagining of their arguments in hopes of dodging the inevitable immunity defense, but the judge has no time for bogus arguments raised hastily in the face of dismissal.

From the decision [PDF]:

As noted in the court’s original decision, the protection afforded by Section 230 applies only to claims “based on information provided by [an] information content provider” other than the defendant. (May 18 M&O at 18-19 (quoting FTC V. LeadClick Media. LLC. 838 F.3d 158,173 (2d Cir. 2016)).) Plaintiffs now maintain that their claims have, in fact, always sought to hold Facebook liable for its own content, and not that generated by another “information content provider,” i.e., Hamas and related entities, based on Facebook’s alleged role in “networking” and “brokering” links among terrorists. (Recons. Mot. at 12.)

Plaintiffs’ contention is completely disingenuous. In the current motion. Plaintiffs acknowledge in a footnote that “perhaps plaintiffs could have made their reliance on Facebook’s productive conduct clearer in their briefing” but attribute this oversight to Facebook’s supposed failure to argue that it was not a content provider. (Recons. Mot. at 12 & n.9.) Plaintiffs’ contention is flatly refuted by Facebook’s briefing on the original motion to dismiss, which clearly argued that all of the offending content cited in Plaintiffs’ complaint was “provided by another information content provider, not by Facebook itself.” (Def. Mem. in Supp. of MTD (Dkt. 35) at 17-18.) Plaintiffs did not respond to this argument at any point, and in fact began their opposition memorandum by stating that “[t]hese cases do not concern speech or content.” For Plaintiffs to now turn around and argue that its allegations are largely about content that Facebook itself created borders on mendacious.

Having expended some strong language on the plaintiffs’ disingenuous arguments, the court wraps up the case with… well, it’s difficult to say where this order leaves the Force v. Facebook lawsuit. Here’s Eric Goldman’s attempt to summarize the ruling:

I’m a little confused about where this ruling leaves the case. The court dismissed the first amended complaint without prejudice, but denied the plaintiffs the right to file a second amended complaint–and did so with prejudice. It seems like this should mean the case is over in the district court, and the plaintiffs can turn to the appeals court if they choose to do so (which they most likely will do).

About all that can definitively be said is the order can be appealed. Unfortunately, there have been two dismissals at this level: one with and one without prejudice. So, there may be an opening to refile in New York but chances are the Force case will meet its final demise at the appellate level.

There have been several lawsuits filed seeking to hold social media companies directly responsible for the actions of terrorists — and another one of them was rejected on appeal this week (we’ll have more on that case soon). In many cases, these are brought by the families of victims. There’s no denying the underlying tragedies motivating these legal cases, but the targets are not the wrongdoers. Nor are they even enablers. They’re platforms for communication. And communicating is something everyone does, even terrorists. People can rightfully argue platforms’ attempts to control terrorist communications have been mostly unsuccessfully. But they can’t honestly argue platforms are directly responsible for violence committed by terrorists.

Filed Under: blame, cda 230, force v facebook, material support for terrorism, section 230, social media, terrorism
Companies: facebook

The Importance Of Defending Section 230 Even When It's Hard

Legal Issues

from the preventing-tough-cases-from-making-bad-law dept

The Copia Institute filed another amicus brief this week, this time in Fields v. Twitter. Fields v. Twitter is one of a flurry of cases being brought against Internet platforms alleging that they are liable for the harms caused by the terrorists using their sites. The facts in these cases are invariably awful: often people have been brutally killed and their loved ones are seeking redress for their loss. There is a natural, and perfectly reasonable, temptation to give them some sort of remedy from someone, but as we argued in our brief, that someone cannot be an internet platform.

There are several reasons for this, including some that have nothing to do with Section 230. For instance, even if Section 230 did not exist and platforms could be liable for the harms resulting from their users’ use of their services, for them to be liable there would have to be a clear connection between the use of the platform and the harm. Otherwise, based on the general rules of tort law, there could be no liability. In this particular case, for instance, there is a fairly weak connection between ISIS members using Twitter and the specific terrorist act that killed the plaintiffs’ family members.

But we left that point to Twitter to ably argue. Our brief focused exclusively on the fact that Section 230 should prevent a court from ever even reaching the tort law analysis. With Section 230, a platform should never find itself having to defend against liability for harm that may have resulted from how people used it. Our concern is that in several recent cases with their own terrible facts, the Ninth Circuit in particular has found itself willing to make exceptions to that rule. As much as we were supporting Twitter in this case, trying to help ensure the Ninth Circuit does not overturn the very good District Court decision that had correctly applied Section 230 to dismiss the case, we also had an eye to the long view of reversing this trend.

The problem is, like the First Amendment itself, speech protections only work as speech protections when they always work. When one can find exemptions here and there, all of a sudden none of these protections are effective and it chills the speech of those who were counting on them because no one can be sure whether or not the speech will ultimately be protected. In the case of Section 230, that chilling arises because if the platforms cannot be sure whether they will be protected from liability in their users’ speech, then they will have to assume they are not. Suddenly they will have to make all the censoring choices with respect to their users’ content that Section 230 was designed to prevent, just to avoid the specter of potentially crippling liability.

One of the points we emphasized in our brief was how such an outcome flouts what Congress intended when it passed Section 230. As we said then, and will say again as many times as we need to, the point of Section 230 is to encourage the most beneficial online speech and also minimize the worst speech. To see how this dual-purposed intent plays out we need to look at the statute as a whole, beyond the part of it that usually gets the most attention, at Subsection (c)(1), which is about how platforms are immune from liability manifest in their users’ speech. There is also another equally important part of the statute, at Subsection (c)(2), that immunizes platforms from liability when they take steps to minimize harmful online content on their systems. This subsection rarely gets attention, but it’s important not to overlook, especially as people look at the effect of the first subsection and worry that it might encourage too much “bad” speech. Congress anticipated this problem and built in a remedy as part of a balanced approach to encourage the most good speech and least bad speech. The problem with now holding online services liable for bad uses of their platforms is that it distorts this balance, and in distorting this balance undermines both these goals.

We used the cases of Barnes v. Yahoo and Doe 14 v. Internet Brands to illustrate this point. Both of these are cases where the Ninth Circuit did make exemptions and found Section 230 not to apply to certain negative uses of Internet platforms. For instance, in Barnes Section 230 was actually found to apply to part of the claim directly relating to the speech in question, which was a good result, but the lawsuit also included a promissory estoppel claim, and the Court decided that because it was not directly related to liability arising from content it could go forward. The problem here was that Yahoo had separately promised to take down certain content, and so the Court found it potentially liable for not having lived up to its promise. But as we pointed out, the effect of the Barnes case was that now platforms never promise to take content down. Even though Congress intended for Section 230 to help Internet platforms perform a hygiene function to help keep the Internet free of the worst content, by discouraging platforms from going the extra mile it has instead had the opposite effect from the one Congress intended. That’s why courts should not continue to find reasons to limit Section 230’s applicability. Even if they think they have good reason to find one, that very justification itself will be better advanced when Section 230’s protection can be most robust.

We also pointed out that in terms of the other policy goal behind Section 230, to encourage more online speech, divining exemptions from Section 230’s coverage would undermine that goal as well. In this case the plaintiffs want providers to have to deny terrorists the use of their platforms. As a separate amicus brief by the Internet Association explained, platforms actually want to keep terrorists off and go to great lengths to try to do so. But as the saying goes, “One man’s terrorist is another man’s freedom fighter.” In other words, deciding who to label a terrorist can often be a difficult thing to do, as well as an extremely political decision to make. It’s certainly beyond the ken of an “intermediary” to determine — especially a smaller, less capitalized, or potentially even individual one. (Have you ever had people comment on one of your Facebook posts? Congratulations! You are an intermediary, and Section 230 applies to you too.)

Even if the rule were that a platform had to check prospective users’ names against a government list, there are significant constitutional concerns, particularly regarding the right to speak anonymously and the prohibition against prior restraint, that arise from having to make these sorts of registration denial decisions this way. There are also often significant constitutional problems with how these lists are made at all. As the amicus brief by EFF and CDT also argued, we can’t create a system where the statutory protection platforms depend on to be able to foster online free speech is conditioned on coercing platforms to undermine it.

Filed Under: fields v. twitter, free speech, intermediary liability, material support for terrorism, platforms, section 230, tamara fields, terrorism
Companies: twitter

Judge Dumps Two Lawsuits Attempting To Hold Facebook Responsible For Acts Of Terrorism

Legal Issues

from the not-how-this-works dept

Two lawsuits filed by victims of terrorist attacks against Facebook have been dismissed. Both suits alleged Facebook was complicit in acts of terrorism simply because it (subjectively) didn’t do enough to discourage use of the platform by alleged terrorists.

One lawsuit (Cohen v. Facebook) plead on behalf of “20,000 similarly-situated” residents of Israel who continue to face the threat of violence at the hands of terrorist organization Hamas. The other (Force v. Facebook) also featured multiple plaintiffs but was limited to families of victims of Hamas attacks. Neither case presented legitimate complaints and both advanced novel arguments in an attempt to avoid a dismissal under Section 230.

The alternative routes to judgment worked out no better for the plaintiffs, as Eric Goldman reports. The Cohen class action presented a legal theory that couldn’t even be addressed by the court due to a lack of jurisdiction. From the decision [PDF]:

the Cohen Plaintiffs do not seek redress for past actions but instead seek prospective, injunctiye relief based on their allegation that Facebook’s actions increase their risk of harm from future terrorist attacks. This claimed harm relies on multiple conjectural leaps, most significantly its central assumption that the Cohen Plaintiffs will be among the victims of an as-yet unknown terrorist attack by independent actors not before the court. The Cohen Complaint contains no factual allegation that could form a basis to conclude that those individuals in particular are at any “substantial” or “certainly impending” risk of future harm. At most, the Complaint shows a general risk of harm to residents of Israel and impliedly asks the court to extract a risk of harm to the Cohen Plaintiffs based on this risk. Without further allegations, however, the court sees no basis to conclude that the Cohen Plaintiffs “specifically will be the target of any future, let alone imminent, terrorist attack.”

Nor can the Cohen Plaintiffs rescue their claims by arguing that they suffer a present harm resulting from their fear of such attacks, as “allegations of a subjective [fear] are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm.” While the court does not question the sincerity of the Cohen Plaintiffs’ anxieties, their subjective fears cannot confer standing absent a sufficient showing of the risk of future harm.

The Force plaintiffs did not entirely avoid a Section 230 argument, but posited the immunity does not apply to content posted outside of the United States. The court grants that this legal theory is mostly unexplored at this point, but that the plaintiffs cannot avail themselves of an extraterritorial-reliant legal theory while bringing legal action in a US court against a US-based company.

In light of its focus on limiting civil liability, the court concludes that the relevant location is that where the grant of immunity is applied, i.e. the situs of the litigation. Section 230(c)(1) suggests a number of “territorial relationships and events,” which are generally divisible into those associated with the underlying claim (e.g., the location of the information content provider, the intemet service provider, or the act of publishing or speaking) and the location associated with the imposition of liability, i.e. where the intemet service provider is to be “treated” as the publisher or speaker. Given the statutory focus on limiting liability, however, the location of the relevant “territorial events” or “relationships” cannot be the place in which the claims arise but instead must be where redress is sought and immunity is needed.

With this in mind, the court concludes that the Force Action does not require an impermissible extraterritorial application of Section 230(c)(1). As the situs of the litigation is New York, the relevant “territorial events or relationships” occur domestically. Accordingly, the court rejects the Force Plaintiffs argument that Facebook should be denied immunity under Section 230(c)(1).

As Goldman points out, this looks like a routine and logical application of Section 230 immunity, but if arguments like these are entertained in other courts, it could pose some serious, irreparable problems for social media platforms.

The plaintiffs essentially sought to treat Facebook as the financial guarantor of all terrorist-caused harms to all victims, regardless of what role Facebook played in causing those harms. Such an unbounded financial exposure could dwarf Facebook’s market capitalization, meaning that the theories behind these lawsuits pose an existential threat to Facebook, other social media sites, and possibly the entire Internet. Thus, the judge’s well-reasoned and clear rejection of the plaintiff’s claim is a big win for Facebook and the Internet.

This decision will be appealed by both parties. There’s been no decision yet on a similar suit filed in the Ninth Circuit, but the chances of these legal theories succeeding is very slim. But it’s not impossible to end up with a bad ruling or, at the very least, precedent that weakens Section 230 without removing it completely. We’ve seen it happen before. But so far courts haven’t felt the urge to hold social media platforms directly responsible for terrorists’ acts of violence and it’s unlikely these two complainants are going to change that.

Filed Under: intermediary liability, liability, material support for terrorism, terrorism
Companies: facebook

Families Of Orlando Shooting Victims Sue Twitter, Facebook, And Google For 'Supporting Terrorism'

Legal Issues

from the worst-attempt-yet dept

Remember that time when Google, Twitter, and Facebook helped shoot up a nightclub in Orlando, Florida? Me neither. But attorney Keith Altman does. He’s representing the families of three of the victims of the Pulse nightclub shooting in a lawsuit alleging [sigh] that these tech companies are somehow responsible for this act of terrorism.

The lawsuit, first reported by Fox News, was filed Monday in federal court in the eastern district of Michigan on behalf of the families of Tevin Crosby, Javier Jorge-Reyes and Juan Ramon Guerrero.

The lawsuit is the latest to target popular Internet services for making it too easy for the Islamic State to spread its message.

Like many similar lawsuits, this one is doomed to fail. First off, Section 230 immunizes these companies from being held responsible for third-party content. As this is certainly the first obstacle standing in the way of the suit’s success, Altman has presented a very novel argument in hopes of avoiding it: ad placement is first party content, so immunity should be removed even when ads are attached to third-party content. From the filing [PDF]:

By specifically targeting advertisements based on viewers and content, Defendants are no longer simply passing through the content of third parties. Defendants are themselves creating content because Defendants exercise control over what advertisement to match with an ISIS posting. Furthermore, Defendants’ profits are enhanced by charging advertisers extra for targeting advertisements at viewers based upon knowledge of the viewer and the content being viewed.

[…]

Given that ad placement on videos requires Google’s specific approval of the video according to Google’s terms and conditions, any video which is associated with advertising has been approved by Google.

Because ads appear on the above video posted by ISIS, this means that Google specifically approved the video for monetization, Google earned revenue from each view of this video, and Google shared the revenue with ISIS. As a result, Google provides material support to ISIS.

That’s the 230 dodge presented in this lawsuit. The same goes for Twitter and Facebook, which also place ads into users’ streams — although any sort of “attachment” is a matter of perception (directly proceeding/following “terrorist” third-party content, but not placed on the content). YouTube ads are pre-roll and are part of an automated process. The lawsuit claims ISIS is profiting from ad revenue, but that remains to be seen. Collecting ad revenue involves a verification process which actual terrorists may not be willing to participate in.

Going beyond this, the accusations are even more nebulous. The filing asserts that each of the named companies could “easily” do more to prevent use of their platforms by terrorists. To back up this assertion, the plaintiffs quote two tech experts (while portraying their thoughts as being representative of “most” experts) that say shutting down terrorist communications would be easy.

Most technology experts agree that Defendants could and should be doing more to stop ISIS from using its social network. “When Twitter says, ‘We can’t do this,’ I don’t believe that,” said Hany Farid, chairman of the computer science department at Dartmouth College. Mr. Farid, who co-developed a child pornography tracking system with Microsoft, says that the same technology could be applied to terror content, so long as companies were motivated to do so. “There’s no fundamental technology or engineering limitation,” he said. “This is a business or policy decision. Unless the companies have decided that they just can’t be bothered.”

According to Rita Katz, the director of SITE Intelligence Group, “Twitter is not doing enough. With the technology Twitter has, they can immediately stop these accounts, but they have done nothing to stop the dissemination and recruitment of lone wolf terrorists.”

Neither expert explains how speech can so easily be determined to be terrorism or how blanket filtering/account blocking wouldn’t result in a sizable amount of collateral damage to innocent users. Mr. Farid, in particular, seems to believe sussing out terrorist-supporting speech should be as easy as flagging known child porn with distinct hashes. A tweet isn’t a JPEG and speech can’t be as easily determined to be harmful. It’s easier said than done, but the argument here is the same as the FBI’s argument in respect to “solving” the encryption “problem:” the smart people could figure this out. They’re just not trying.

Altman’s suggestion is even worse: just prevent Twitter accounts from being created that use any part of the handle of a previously-blocked account.

When an account is taken down by a Defendant, assuredly all such names are tracked by Defendants. It would be trivial to detect names that appear to have the same name root with a numerical suffix which is incremented. By limiting the ability to simply create a new account by incrementing a numerical suffix to one which has been deleted, this will disrupt the ability of individuals and organizations from using Defendants networks as an instrument for conducting terrorist operations.

It’s all so easy when you’re in the business of holding US-based tech companies responsible for acts of worldwide terrorism. First, this solves nothing. If the incremental option goes away, new accounts will be created with other names. Pretty soon, a great deal of innocuous handles will be auto-flagged by the system, preventing users from creating accounts with the handle they’d prefer — including users who’ve never had anything to do with terrorism. Seriously a stupid idea, especially since the Twitter handle used in the example is “DriftOne” — a completely innocuous handle the plaintiffs would like to see treated as inherently suspicious.

And thank your various gods this attorney isn’t an elected official, law enforcement officer, or holding a supervisory role at an intelligence agency. Because this assertion would be less ridiculous and more frightening if delivered by any of the above:

Sending out large numbers of requests to connect with friends/followers from a newly created account is also suspicious activity. As shown in the “DriftOne” example above, it is clear that this individual must be keeping track of those previously connected. When an account is taken down and then re-established, the individual then uses an automated method to send out requests to all those members previously connected. Thus, accounts for ISIS and others can quickly reconstitute after being deleted. Such activity is suspicious on its face.

We’ve seen a lot of ridiculous lawsuits fired off in the wake of tragedies, but this one appears to be the worst one yet.

The lawsuit asks the court to sidestep Section 230 and order private companies to start restricting speech on their platforms. That’s censorship and that’s basically what the plaintiffs want — along with fees, damages, etc. The lawsuit asks for an order finding that the named companies are violating the Anti-Terrorism Act and “grant other and further relief as justice requires.”

The lawsuit’s allegations are no more sound than the assertion of the Congressman quoted in support of the plaintiffs’ extremely novel legal theories:

“Terrorists are using Twitter,” Rep. Poe added, and “[i]t seems like it’s a violation of the law.”

This basically sums up the lawsuit’s allegations: this all “seems” wrong and the court needs to fix it. The shooting in Orlando was horrific and tragic. But this effort doesn’t fix anything and asks for the government to step in and hold companies accountable for third-party postings under terrorism laws. Not only that, but it encourages the government to pressure these companies into proactive censorship based on little more than some half-baked assumptions about how the platforms work and what tech fixes they could conceivably apply with minimal collateral damage.

Filed Under: cda 230, isis, keith altman, material support for terrorism, omar mateen, orlando, pulse nightclub, section 230, terrorism, victims
Companies: facebook, google, twitter

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

Legal Issues

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.

Filed Under: isis, material support, material support for terrorism, section 230, tamara fields, terrorism
Companies: twitter

Twitter Asks Court To Dump Ridiculous Lawsuit Claiming It Provides Material Support For Terrorists

Legal Issues

from the should-be-an-easy-one dept

Back in January, we wrote about an absolutely ridiculous case, in which Tamara Fields sued Twitter, after her husband was tragically killed in an ISIS raid last year. Why Twitter? She apparently blames Twitter for the rise of ISIS. She provides no evidence to show that the people who killed her husband (a government contractor for DynCorp International) was killed by people who used Twitter. Or that anything about the attack was related to Twitter. It’s entirely just “ISIS uses Twitter. ISIS killed by husband. Let’s sue Twitter.” As we noted at the time, Section 230 should easily get this lawsuit tossed out quickly, and the company has now filed its Motion to Dismiss. The TL;DR: “Section 230, Section 230, What a stupid lawsuit this is.”

Plaintiff?s claims seek to hold Twitter liable for the content of messages posted to its platform by third parties and are thus barred by Section 230 of the Telecommunications Act of 1996, 47 U.S.C. § 230 (?Section 230?). In enacting Section 230, Congress unequivocally resolved the question whether computer service providers may be held liable for harms arising from content created by third parties. Announcing the policy of the United States to preserve the ?free market that presently exists for the Internet . . . unfettered by Federal or State regulation,? 47 U.S.C. § 230(b)(2), Congress broadly immunized entities like Twitter against lawsuits that seek to hold them liable for harmful or unlawful third-party content, including suits alleging that such entities failed to block, remove, or alter such content

Of course, even without Section 230, the lawsuit should be dumped, because Twitter had nothing to do with anything in this case.

It fails to state a claim for relief under the Terrorism Civil Remedy provision. That provision requires Plaintiff to allege and prove (1) that she was injured ?by reason of??i.e., that her injury was proximately caused by?(2) an ?act of international terrorism? committed by Twitter. 18 U.S.C. § 2333(a). The Complaint?s allegations satisfy neither requirement. First, the link the Complaint attempts to draw between Twitter?s alleged conduct and the attack is, as a matter of law, far too tenuous to establish that Twitter proximately caused Mr. Fields? death. Second, the Complaint?s allegations amount to nothing more than the claim that Twitter made its communications platform available to everyone in the world with an Internet connection. As a matter of law, that conduct cannot have constituted ?an act of international terrorism? as defined by the statute because it plainly does not ?appear to [have been] intended? ?to intimidate or coerce a civilian population,? ?to influence the policy of a government by intimidation or coercion,? or ?to affect the conduct of a government by mass destruction, assassination, or kidnapping,?…

Later, the filing notes:

The Complaint makes no attempt to connect Twitter directly to Abu Zaid or his attack. It does not allege that ISIS recruited Abu Zaid over the Twitter platform. Nor does it allege that Abu Zaid or ISIS used the Twitter platform to plan, carry out, or raise money for the attack. It does not even allege that Abu Zaid had a Twitter account or ever accessed the Twitter platform. And although the Complaint devotes considerable attention to how other terrorists allegedly used the Twitter platform, it never explains how that alleged use had even the remotest connection to Abu Zaid?s ?lone wolf? attack. The Complaint does not, for example, allege that ISIS helped Abu Zaid plan the attack or that ISIS provided Abu Zaid with weapons or funds. Beyond the speculation that Abu Zaid and ISIS may have shared the common objectives of inflicting harm on Americans and establishing a transnational Islamic caliphate, the closest the Complaint comes to even hinting at a connection between the two is the allegation that ISIS?s ?brutal execution of Jordanian pilot Maaz al-Kassasbeh in February 2015? may have inspired Abu Zaid to become a ?lone wolf? terrorist nine months later.

Obviously, having your husband killed in a “lone wolf” attack is a horrible and horrifying situation for anyone to go through. But suing Twitter seems like a particularly misguided response. It would be positively shocking if the judge actually lets this case go any further.

Filed Under: isis, lloyd fields, material support, material support for terrorism, section 230, tamara fields, terrorism
Companies: twitter