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

from the try,-try-again dept

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

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

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

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

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

[....]

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

[....]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

None of that makes Facebook a state actor.

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

Bring on the RICO claims...

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

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

Section 230 Works: Russian Trolls Don't Get To Sue Facebook For Being Kicked Off Facebook

from the don't-feed-the-trolls dept

Sorry Russian trolls (oh, and also all you people insisting that Section 230 doesn't and or shouldn't allow Facebook to kick trolls off its platform), but a court has made it clear that Facebook is clearly protected in kicking trolls off its platform. In this case, the Federal Agency of News (FAN) was kicked off Facebook soon after the 2016 election, when Facebook realized that various Russian trolling outfits had used the platform to push propaganda, often directed by the Russian "Internet Research Agency." Among the pages that Facebook removed was FAN's. For what it's worth, the "General Director" of FAN was one Aleksandra Krylova, who is among those who were indicted by Robert Mueller last year, for trying to influence the US election.

Somewhat incredibly, FAN decided to sue Facebook over this, claiming a violation of the First Amendment along with some other claims -- which I'll just note in passing seem oddly similar to the claims used by white supremacists and other trolls who have sued social media for being removed. This includes claims of a civil rights violation under both federal law and California's Unruh Civil Rights Act, a breach of contract claim and a breach of "implied covenant of good faith and fair dealing."

All of this fails. Miserably. For all the reasons we've discussed for years. Judge Lucy Koh points out that CDA 230 clearly applies here, and walks through why each of FAN's arguments are legally nonsense. We'll give a few examples, mainly highlighting the silly arguments that (other?) trolls keep putting forth lately to argue why CDA 230 does not protect such content moderation. First up, an argument that the CDA is only supposed to apply to obscenity or other kinds of "offensive" content, and therefore doesn't apply to garden variety trolling. Nope, nope and nope:

Plaintiffs argue that the Communications Decency Act does not immunize Facebook because the instant case “does not concern obscenity or any other form of unprotected speech; it concerns political speech that strikes at the heart of the First Amendment.”.... It is telling that Plaintiffs fail to cite any authority for this argument. Immunity under the Communications Decency Act does not contain a political speech exception. The statutory text provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 U.S.C. § 230(c)(1) (emphasis added). No distinction is made between political speech and non-political speech.

Then there's the argument that Facebook is a "public forum" and therefore is bound by the First Amendment. Judge Koh is having none of that:

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

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

Koh also easily rejects the idea that Facebook might be a public forum because it engages in functions "that are traditionally and exclusively governmental." As Koh points out, it doesn't:

Here, the Court finds that Facebook did not engage in functions that are traditionally and exclusively functions of the state. Examples of functions that are traditionally the exclusive prerogative of the state include “hol[ding public] elections”, “govern[ing] a town,” or “serv[ing] as an international peacekeeping force.” Brunette v. Humane Society of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 2002). There are no allegations that Facebook holds public elections, governs a town, or serves as an international peacekeeping force.

And, no, Facebook kicking foreign trolls trying to meddle in elections off its platforms is not a "state action" either, just because it shared information about Russian trolling with the government.

Plaintiffs argue that Facebook, a private actor, was a willful participant in joint action with the government because Facebook provided the government with information for the government’s investigation of Russian interference with the 2016 presidential election.... Plaintiffs’ argument lacks merit. The Deeths court found that there was no joint action even though a state actor relied upon a private actor’s information and recommendation to remove the plaintiff’s child from the plaintiff’s care..... In the instant case, Plaintiffs only allege that Facebook provided the government with information. ... Thus, under Deeths, Facebook was not a willful participant in joint action with the government.

In addition, Plaintiffs’ claims of joint action between Facebook and the government fail for another equally dispositive reason. The Ninth Circuit has held that for there to be joint action, there must be “‘state actions’ directed by or jointly conceived, facilitated, or performed by the [government actor].” Brunette, 294 F.3d at 1213. Plaintiffs’ Bivens claim for violation of the First Amendment is predicated on the alleged violation of “FAN’s First Amendment rights by deleting the contents of FAN’s Facebook Page and blocking FAN’s access to its Facebook account.”... However, the only interactions between Facebook and the government alleged in the complaint pertain to how Facebook provided information to the government for the government’s Russian interference with the 2016 presidential election investigation.... Plaintiffs do not allege that the government played any role in shutting down FAN’s Facebook page or blocking FAN’s access to its Facebook account. Thus, Plaintiffs fail to allege any state action “directly by or jointly conceived, facilitated, or performed by the” government that relates to the deletion of FAN’s Facebook page or restriction on FAN’s access to its Facebook account.... Consequently, there is no joint action here because there is no indication that the government directly or jointly conceived, facilitated, or performed a role in Facebook’s decision to shut down FAN’s Facebook page or the decision to prevent FAN from accessing its Facebook account.

Judge Koh does give the Russian trolls -- represented by actual respectable lawyers and everything -- a chance to amend their complaint, while making it pretty clear it still has no chance. We'll see whether they even bother.

In Professor Eric Goldman's discussion of this ruling, he notes that anyone supporting Senator Josh Hawley's silly bill to remove Section 230 protections from big internet platforms is effectively supporting Russian trolls like the ones who filed this case:

Just a reminder to anyone complaining about Facebook “censoring” them, arguing that Facebook is the new public square, or demanding that Facebook “must carry” content neutrally: you are making the exact same arguments as Russian trolls seeking to destroy our country. Either that’s the goal you intentionally want, or you are so narrowly focused on your concerns that you don’t realize or care how Russian trolls are weaponizing your arguments against our democracy. Want to Make America Great Again? (or keep America great, if we never stopped being great). Stop trying to destroy the editorial freedom of online publishers to decide what’s fit to publish and what isn’t.

In particular, this case reiterates the depravity of Sen. Hawley’s “[Ending] Support for Internet Censorship Act.” FAN was promoting its own political viewpoints, so Sen. Hawley’s proposal would force Facebook and other major Internet companies to treat FAN’s trolling as equally legitimate as the Republican Party’s social media activities. (Please, no “jokes” about how Republicans have become unexpectedly enthusiastic supporters of Russia’s policy and world views). Why would Sen. Hawley–and the few supporters of his bill–want to prevent online crackdowns against Russian trolls? It appears Sen. Hawley doesn’t understand the consequences of his bill–or worse, perhaps he does.

Filed Under: cda 230, civil rights, content moderation, russian trolls, section 230, unruh act
Companies: facebook, federal agency of news, internet research agency