Judge On Whether Twitter Is Legally Liable For ISIS Attacks: Hahahahahaha, Nope.

from the decision-in-140-characters-or-less dept

Thu, Aug 11th 2016 8:25am — Mike Masnick

This is not a surprise, but the judge overseeing the case where Twitter was sued by a woman because her husband was killed in an ISIS attack has tossed out the case. We fully expected this when the lawsuit was first filed, and the judge was clearly skeptical of the case during a hearing on it back in June. The order dismissing the case comes in at slightly longer than 140 characters, but you get the feeling that was really about all that was needed to point out how ridiculous this case was. As we expected, Twitter pointed to CDA Section 230 to say it's simply immune from such a claim and the judge agrees:

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....

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.

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.

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....

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.

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.

Fields-Twitter-Ruling (PDF)Fields-Twitter-Ruling (Text)

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

24 Comments

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GrooveNeedle (profile), 11 Aug 2016 @ 8:47am

Wasted Costs?
Are our tax dollars really being wasted on cases that are nutty before they are even filed? When someone files a claim this silly, can the court order costs to be recouped back to the level of government that wasted time with it? Are there even costs to recoup?

I get it, people are angry at ISIS (usually for good reason), and they can't face someone on the other side of the planet, so they attack what they can... no matter how foolish it is and inaccurate the target may be, but the rest of us shouldn't be on the hook to tell these people they are wrong and wasting resources.
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- Anonymous Coward, 11 Aug 2016 @ 9:23am
  
  Re: Wasted Costs?
  There is a $350 filing fee to file a federal lawsuit. That wouldn't cover the costs, but it isn't free.
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  - DannyB (profile), 11 Aug 2016 @ 10:46am
    
    Re: Re: Wasted Costs?
    But it's cheap enough that it might be a gamble that is worth taking. Downside, lose $350. Upside, win a gazillion dollars, of which you get some portion. Or at least win a settlement to make this nonsense go away.
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Anonymous Coward, 11 Aug 2016 @ 8:53am

"but the judge overseeing the case where Twitter was sued by a woman because her husband was killed in an ISIS attack has been dismissed."

Umm, I think you need to fix the wording for this sentence. Right now it says that the judge has been dismissed, not that the case has been dismissed.
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Industrial IT, 11 Aug 2016 @ 9:03am

Stupidity
I cant believe people are wasting their time with stupid things like this. People need to get a grip and get on with important things in life.
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- Anonymous Coward, 11 Aug 2016 @ 9:19am
  
  Re: Stupidity
  Getting a company to pay you to go away is well established way of making money in US legal practice. All you need to do is get the case to fly past the initial hurdles, which they failed to do here.
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  - John Fenderson (profile), 11 Aug 2016 @ 9:59am
    
    Re: Re: Stupidity
    The fact that it's well established practice doesn't make it any less stupid.
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  - DannyB (profile), 11 Aug 2016 @ 10:47am
    
    Re: Re: Stupidity
    It would have been funnier if you had said 'a time honored way of making money in the US'.
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    - Anonymous Coward, 11 Aug 2016 @ 11:24am
      
      Re: Re: Re: Stupidity
      If layers did not see opportunities to make money from them, they would not support such idiotic cases, but rather give their potential clients proper legal advice.
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Ninja (profile), 11 Aug 2016 @ 9:08am

The judge can't do it but it would be amusing if they actually wrote "Hahahahaha, nope." and just got to the next case.

I won't be surprised if the woman doubles down in the stupidity..
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Anonymous Coward, 11 Aug 2016 @ 9:16am

it's funny how service providers can be held legally liable for copyright infringement (real or imagined) committed by their customers, but are scot free when it comes to virtually all other crimes and forms of misbehavior.
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- Gwiz (profile), 11 Aug 2016 @ 9:41am
  
  Re:
  Not really. Section 230 explicitly excludes intellectual property:
  47 U.S. Code § 230
  (e) Effect on other laws
  (2) No effect on intellectual property law
  Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
  Source
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- Anonymous Coward, 11 Aug 2016 @ 9:46am
  
  Re:
  They shouldn't be held liable in either case.
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- Anonymous Coward, 11 Aug 2016 @ 11:30am
  
  Re:
  " but are scot free when it comes to virtually all other crimes and forms of misbehavior."
  
  Committed by whom? You are not entirely clear on this point.
  Do you mean committed by the ISP or committed by a user of said ISP? If you are referring to Secondary Liability, do you mean vicarious liability or contributory liability?
  
  Secondary liability is not cut 'n dried and it is a common vector for scammers with their get rich quick schemes. An ISP provides a service, what you do with that service is none of their business and therefore they need not spy upon their users. The nanny state folk out there obviously have ulterior motives.
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  - BentFranklin (profile), 11 Aug 2016 @ 12:39pm
    
    Re: Re:
    I think he meant: overbilling, buying politicians, complicity in scams, etc.
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    - DannyB (profile), 11 Aug 2016 @ 12:51pm
      
      Re: Re: Re:
      Injecting ads into pages you did not contribute to building.
      
      Capturing your internet history and selling it to anyone.
      
      Creating new imaginary fees that cost real money.
      
      Bandwidth capping when none is actually needed.
      
      Etc.
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Anarres (profile), 11 Aug 2016 @ 9:50am

That's exactly what the CDA says, section 230: that no internet service provider shall be treated as a publisher or speaker of information provided by another.
And, that nothing in that section applies to intellectual property.
https://www.law.cornell.edu/uscode/text/47/230
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TechDescartes (profile), 11 Aug 2016 @ 10:10am

Section 230 is Alive and Well
It's worth noting that the Court upheld Section 230 while explicitly citing Internet Brands in rendering its decision:
While the Ninth Circuit has described the reach of section 230(c)(1) in broad terms, stating that it “immunizes providers of interactive computer services against liability arising from content created by third parties,” the statute does not “create a lawless no-man’s-land on the internet.” Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162, 1164 (9th Cir. 2008); see also Doe v. Internet Brands, Inc., No. 12-56638, 2016 WL 3067995, at *6 (9th Cir. May 31, 2016) (noting that “the CDA does not declare a general immunity from liability deriving from third-party content”) (internal quotation marks omitted). Rather, separated into its elements, section 230(c)(1) protects from liability only (a) a provider or user of an interactive computer service (b) that the plaintiff seeks to treat as a publisher or speaker (c) of information provided by another information content provider. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009).
In other words, the death of Section 230 has been greatly exaggerated.
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DannyB (profile), 11 Aug 2016 @ 10:44am

But what are victims to do?
What is the world coming to if Twitter cannot be held liable for the rise of all forms of terrorism in the world?

Wouldn't that be just as crazy as not holding Google responsible for all forms of piracy in the world?

And what about the electric utilities which supply their data centers? What responsibility do they have in all this?
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Anonymous Coward, 11 Aug 2016 @ 10:52am

The plaintiff, Tamara Fields, can still file an amended complaint that tries to fix these problems

But they're not even problems. They're serious failures to understand the placement of blame while trying to make money off of the fact that a loved one died. I'd feel bad for you lady, but now you can just get bent. How dare you use him like that.
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Anonymous Coward, 11 Aug 2016 @ 11:05am

Not the weapon?
Amazing how the weapon's manufacturers are not getting sued or the shoe sellers.
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- Anonymous Coward, 11 Aug 2016 @ 12:44pm
  
  Re: Not the weapon?
  ..or the vehicle manufacturers or airlines or airports or rental car companies that had the nerve to take his money to get him there. Heck, she probably even took him to the airport herself!
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  - Anonymous Coward, 11 Aug 2016 @ 2:20pm
    
    Re: Re: Not the weapon?
    Or the various government entities that paid for those roads that the car was driving on while wearing shoes that the bad guys used while carrying their gun. Since those roads were paid for by tax money she should sue herself.
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Whatever (profile), 11 Aug 2016 @ 10:36pm

I think this is a case of legal cannon fodder: A series of lawsuits will be leveled, each one getting slightly more refined and finding perhaps the narrow gaps between things, until finally one of them gets through and Twitter or Facebook are forced to defend themselves beyond pointing at Section 230 and smiling smugly.

This first try was weak in a few areas, but those who follow will have a couple of guide posts that tell them where out of bounds is. Sooner or later, someone will get one in bounds and all bets are off.
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