Another Attempt To Tie Twitter To Terrorist Acts And Another Dismissal With Prejudice

from the Definition-Of-Insanity,-PLLC dept

"A series of lawsuits," the court calls it. This is the ongoing work of 1-800-LAW-FIRM and Excolo Law -- two firms that specialize in bringing losing lawsuits to federal courts. It's a series of lawsuits and a series of losses. An unbroken string of dismissals at both the district and appellate levels -- all in response to the firms' attempts to hold social media companies responsible for the acts of terrorists.

Mandy Palmucci -- a victim of the terrorist attacks in Paris, France -- filed an incredibly long lawsuit (121 pages!) last year with the assistance of these two law firms. She needn't have bothered. This one joins the pile of rejected complaints passing through the federal court system. (h/t John Roddy)

The only thing notable about this latest loss is how irritated Judge William H. Orrick seems to be with these lawsuits that keep landing in his court. Handling one of these lawsuits twice appears to have dug deep into Judge Orrick's reserves of patience. From the decision [PDF]:

In two decisions – Fields v. Twitter, Inc., 217 F. Supp. 3d 1116 (N.D. Cal. 2016) and Fields v. Twitter, Inc., 200 F. Supp. 3d 964 (N.D. Cal. 2016) – I concluded that surviving family members of government contractors killed by an ISIS-identified terrorist could not pursue claims for direct liability under the ATA (or related state law claims) because there was no proximate cause “between Twitter’s provision of accounts to ISIS and the deaths of” plaintiffs’ family members. Id. at 1127. I also held that Twitter was immune from liability for its provision of services to users (even terrorist users) under Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230(c)).

The judge points out the Appeals Court reached the same conclusions, but more expeditiously. It decided the plaintiffs' "proximate cause" claims were so weak it didn't even need to discuss Section 230 immunity.

Then the judge sends a not-too-subtle message to the law firms pushing these baseless lawsuits

Following the Fields decisions, materially similar direct liability claims have been rejected by numerous judges in this District and elsewhere. See Clayborn v. Twitter, Inc., 17-CV-06894- LB, 2018 WL 6839754 (N.D. Cal. Dec. 31, 2018); Copeland v. Twitter, Inc., 352 F. Supp. 3d 965, 17-CV-5851-WHO (N.D. Cal. 2018); Taamneh v. Twitter, Inc., 343 F. Supp. 3d 904, 17-CV04107-EMC (N.D. Cal. 2018); Cain v. Twitter Inc., 17-CV-02506-JD, 2018 WL 4657275 (N.D. Cal. Sept. 24, 2018); Gonzalez v. Google, Inc., 335 F. Supp. 3d 1156, 16-CV-03282-DMR (N.D. Cal. 2018) (Gonzalez II); Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150 (N.D. Cal. Oct. 23, 2017) (Gonzalez I); Pennie v. Twitter, Inc., 281 F. Supp. 3d 874, 17-CV-00230-JCS (N.D. Cal. Dec. 4, 2017); see also Crosby v. Twitter, Inc., 303 F. Supp. 3d 564 (E.D. Mich. March 30, 2018).

Given the short and whatever's the opposite of "illustrious" history of these lawsuits, the judge asked the plaintiff why he should be bothered to allow the case to proceed.

In light of the similarities between Palmucci’s theories of liability and factual allegations here and those in Copeland et al v. Twitter, Inc. et al., No. 17-CV-05851-WHO and Fields v. Twitter, No. 16-CV-0213-WHO, I issued an Order on November 30, 2018, requiring plaintiff to “file a supplemental brief not exceeding five pages identifying what material facts differentiate this case from the facts pleaded in Copeland, Fields” and two other decisions from this District, Cain v. Twitter Inc., No. 17-CV-02506-JD and Gonzalez v. Google, Inc., 16-CV-03282-DMR.

And received, "Ummmmmm... because?" for a reply:

Palmucci was given an opportunity to explain why – in light of the caselaw identified above – her case should continue. She declined, essentially admitting that no additional facts could be alleged that might state her claims under the ATA or state law.

Dismissed with prejudice. That means there will be no re-filing of this lawsuit. Just the inevitable appeal -- one that will be headed to an appeals court that's already found these lawsuits baseless. Another rejection awaits, and a bit more of the courts' time will be wasted by a couple of opportunistic law firms that have discovered a way to make money without actually being of any use to their clients.

Filed Under: mandy palmucci, material support, section 230, william orrick
Companies: 1-800-law-firm, excolo law, twitter

Sixth Circuit Court Dumps Lawsuit Seeking To Hold Twitter Responsible For The Pulse Nightclub Shooting

from the another-attack-victim-taken-for-a-ride dept

Another one of 1-800-LAW-FIRM's lawsuits has been tossed for a second time. After being shut down at the district level for attempting to hold social media companies responsible for the Pulse nightclub shooting in Orlando, Florida, the law firm asked the Sixth Circuit Court of Appeals to take another look at its dubious legal theories.

The Appeals Court has taken another look and it doesn't like what it sees any more than the district court did. The violent act committed inside the nightclub was horrible, but the court cannot provide a remedy for every wrong -- especially not in a case where the plaintiffs are trying to hold a third party responsible for violent acts they neither encouraged nor committed.

Social media platforms may make it easier for terrorists to spread their message, but that does not add up to material support for terrorism. That's the legal theory 1-800-LAW-FIRM and Excolo Law have been using to push these lawsuits in order to dodge the obvious Section 230 implications. It has yet to find support in any court. It doesn't find any here either. From the decision [PDF]:

We sympathize with Plaintiffs—they suffered through one of the worst terrorist attacks in American history. “But not everything is redressable in a court.” Kemper v. Deutsche Bank AG, 911 F.3d 383, 386 (7th Cir. 2018). And terrorist attacks present unique difficulties for those injured because the terrorists “directly responsible may be beyond the reach of the court.” Id. This is one such case. But the absence of Mateen and the inability to hold ISIS responsible cannot create liability elsewhere. Plaintiffs’ complaint includes no allegations that Twitter, Facebook, or Google had any direct connection to Mateen or his heinous act. And Plaintiffs do not suggest that Defendants provided “material support” to Mateen. Without these connections, Plaintiffs cannot state a viable claim under the ATA. As a result, we affirm the district court’s dismissal of Plaintiffs’ claims.

The Appeals Court also agrees with the lower court's finding that the nightclub shooting had almost nothing to do with the international terrorism the plaintiffs claim Twitter and others are helping support. The shooter was "self-radicalized" and nothing in the plaintiffs' 51-page complaint is able to conclusively tie a domestic shooting by a US citizen to ISIS or its online recruitment efforts.

The plaintiffs want the court to apply a completely ridiculous "proximate cause" standard that has never been applied before and will never be applied in the future. There's no legal basis for it and it would pretty much allow almost anyone to sue almost anyone else for almost anything.

With the “highly interconnected” nature of social media, the internet, and “modern economic and social life”—we expect Defendants’ websites to cause some “ripples of harm” that would “flow far beyond the defendant’s misconduct.” Fields, 881 F.3d at 749. But without more, Defendants do not proximately cause all these potential ripples. The content did not compel Mateen’s actions.

Indeed, if we accepted Plaintiffs’ argument, Defendants would become liable for seemingly endless acts of modern violence simply because the individual viewed relevant social media content before deciding to commit the violence.

With nothing to hang on Twitter, there's nothing left of this lawsuit. The state law claims follow the federal claims into a dismissal with prejudice. 1-800-LAW-FIRM wants another chance to amend its lawsuit but the Appeals Court says it should have tried that earlier at the district level. This lawsuit is dead, just like so many others filed by this law firm.

Filed Under: 6th circuit, cda 230, intermediary liability, liability, pulse nightclub shooting, section 230, social media
Companies: 1-800-law-firm, excolo law, twitter

Another Ridiculous Lawsuit Hopes To Hold Social Media Companies Responsible For Terrorist Attacks

from the from-an-alternate-reality-where-Section-230-doesn't-exist dept

Yet another lawsuit has been filed against social media companies hoping to hold them responsible for terrorist acts. The family of an American victim of a terrorist attack in Europe is suing Twitter, Facebook, and Google for providing material support to terrorists. [h/t Eric Goldman]

The lawsuit [PDF] is long and detailed, describing the rise of ISIS and use of social media by the terrorist group. It may be an interesting history lesson, but it's all meant to steer judges towards finding violations of anti-terrorism laws rather than recognize the obvious immunity given to third party platforms by Section 230.

When it does finally get around to discussing the issue, the complaint from 1-800-LAW-FIRM (not its first Twitter terrorism rodeo…) attacks immunity from an unsurprising angle. The suit attempts to portray the placement of ads on alleged terrorist content as somehow being equivalent to Google, Twitter, et al creating the terrorist content themselves.

When individuals look at a page on one of Defendants’ sites that contains postings and advertisements, that configuration has been created by Defendants. In other words, a viewer does not simply see a posting; nor does the viewer see just an advertisement. Defendants create a composite page of content from multiple sources.

Defendants create this page by selecting which advertisement to match with the content on the page. This selection is done by Defendants’ proprietary algorithms that select the advertisement based on information about the viewer and the content being. Thus there is a content triangle matching the postings, advertisements, and viewers.

Although Defendants have not created the posting, nor have they created the advertisement, Defendants have created new unique content by choosing which advertisement to combine with the posting with knowledge about the viewer.

Thus, Defendants’ active involvement in combining certain advertisements with certain postings for specific viewers means that Defendants are not simply passing along content created by third parties; rather, Defendants have incorporated ISIS postings along with advertisements matched to the viewer to create new content for which Defendants earn revenue, and thus providing material support to ISIS.

This argument isn't going to be enough to bypass Section 230 immunity. According to the law, the only thing social media companies are responsible for is the content of the ads they place. That they're placed next to alleged terrorist content may be unseemly, but it's not enough to hurdle Section 230 protections. Whatever moderation these companies engage in does not undercut these protections, even when their moderation efforts fail to weed out all terrorist content.

The lawsuit then moves on to making conclusory statements about these companies' efforts to moderate content, starting with an assertion not backed by the text of filing.

Most technology experts agree that Defendants could and should be doing more to stop ISIS from using its social network.

Following this sweeping assertion, two (2) tech experts are cited, both of whom appear to be only speaking for themselves. More assertions follow, with 1-800-LAW-FIRM drawing its own conclusions about how "easy" it would be for social media companies with millions of users to block the creation of terrorism-linked accounts [but how, if nothing is known of the content of posts until after the account is created?] and to eliminate terrorist content as soon as it goes live.

The complaint then provides an apparently infallible plan for preventing the creation of "terrorist" accounts. Noting the incremental numbering used by accounts repeatedly banned/deleted by Twitter, the complaint offers this "solution."

What the above example clearly demonstrates is that there is a pattern that is easily detectable without reference to the content. As such, a content-neutral algorithm could be easily developed that would prohibit the above behavior. First, there is a text prefix to the username that contains a numerical suffix. 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.

Prohibiting this conduct would be simple for Defendants to implement and not impinge upon the utility of Defendants sites. There is no legitimate purpose for allowing the use of fixed prefix/incremental numerical suffix name.

Take a long, hard look at that last sentence. This is the sort of assertion someone makes when they clearly don't understand the subject matter. There are plenty of "legitimate purposes" for appending incremental numerical suffixes to social media handles. By doing this, multiple users can have the same preferred handle while allowing the system (and the users' friends/followers) to differentiate between similarly-named accounts. Everyone who isn't the first person to claim a certain handle knows the pain of being second... third… one-thousand-three-hundred-sixty-seventh in line. While this nomenclature process may allow terrorists to easily reclaim followers after account deletion, there are plenty of non-ominous reasons for allowing incremental suffixes.

That's indicative of the lawsuit's mindset: terrorist attacks are the fault of social media platforms because they've "allowed" terrorists to communicate. But that's completely the wrong party to hold responsible. Terrorist attacks are performed by terrorists, not social media companies, no matter how many ads have been placed around content litigants view as promoting terrorism.

Finally, the lawsuit sums it all up thusly: Monitoring content is easy -- therefore, any perceived lack of moderation is tantamount to direct support of terrorist activity.

Because the suspicious activity used by ISIS and other nefarious organizations engaged in illegal activities is easily detectable and preventable and that Defendants are fully aware that these organizations are using their networks to engage in illegal activity demonstrates that Defendants are acting knowingly and recklessly allowing such illegal conduct.

Unbelievably, the lawsuit continues from there, going past its "material support" Section 230 dodge to add claims of wrongful death it tries to directly link to Twitter, et al's allegedly inadequate content moderation.

The conduct of each Defendant was a direct, foreseeable and proximate cause of the wrongful deaths of Plaintiffs’ Decedent and therefore the Defendants’ are liable to Plaintiffs for their wrongful deaths.

This is probably the worst "Twitter terrorism" lawsuit filed yet, but quite possibly exactly what you would expect from a law firm with a history of stupid social media lawsuits and a phone number for a name.

Filed Under: cda 230, isis, material support, section 230, social media, terrorism
Companies: 1-800-law-firm, facebook, google, twitter