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June 27, 2012
Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer--Twitter v. Skootle
[Post by Venkat Balasubramani]
Twitter, Inc. v. Skootle Corp., et al., 2012 WL 2375486 (N.D. Cal.; June 22, 2012)
Twitter sued several alleged spammers, including (1) those who provided software for the use of automated account creation and tweeting, and (2) other defendants who actually created automated accounts and sent large amounts of spam tweets.
One of the individual defendants who allegedly created and maintained numerous bot accounts moved to dismiss on the basis of personal jurisdiction, venue, and for failure to state a claim. The court declines to grant his motion.
Subject matter jurisdiction: Twitter has a good faith basis for alleging that the amount in controversy exceeds the jurisdictional threshold for diversity jurisdiction, and the court finds defendant is unable to establish to a legal certainty that the claims do not meet this jurisdictional amount.
Personal jurisdiction: The court easily finds that defendant is subject to personal jurisdiction because he aimed his acts at a California corporation and agreed to its terms of service. Defendant is unable to demonstrate that the exercise of personal jurisdiction is unreasonable. (The court says in a footnote that it's not commenting on the enforceability of forum clauses in "clickwrap" agreements generally, but just that there hasn't been a showing of unreasonableness in this case.)
Venue: The court similarly says that venue is proper under the forum selection clause in Twitter’s agreement and defendant fails to argue with any credible facts as to why litigating the dispute in California would be unduly burdensome.
Failure to state a claim: Defendant argued that Twitter’s sole remedy for a violation of Twitter’s terms of service is to suspend user accounts, but the court says that Twitter’s terms expressly reserve any other available remedy to Twitter. Twitter alleges that creating bot twitter accounts and sending spam tweets was a violation of its terms and it was damaged by defendant’s breach of the terms. At the pleading stage, Twitter easily satisfies its burden.
A fairly run of the mill ruling resolving some typical arguments raised by a pro se defendant.
It’s worth noting that Twitter did not assert claims under CAN-SPAM, and the core of its claims are based on a breach of its terms of service. (See my previous posts on CAN-SPAM and social media posts that mention why Facebook posts don’t track neatly to CAN-SPAM: "N.D. Cal.: Facebook Posts are Electronic Mail Messages, Subject to CAN-SPAM"; "Facebook Gets Decisive Win Against Pseudo-Competitor Power Ventures -- Facebook v. Power Ventures." The same would be true of tweets.) A noteworthy move by Twitter to not push the envelope on this issue.
The fight that may end up being interesting is the one between Twitter and the defendants who allegedly made available the software used by those who created bot accounts and tweeted. These defendants may have a potential Section 230 defense available, and to establish liability, Twitter will have to show something more than that the software can be used to manage tweets from multiple accounts and automate tweets (functionality shared by many tools that are perceived as “legitimate” by Twitter). (See also "Keylogger Software Company Not Liable for Eavesdropping by Ex-spouse -- Hayes v. SpectorSoft.")
[A final procedural note. The court (separately) issued a show cause order requiring Twitter to demonstrate that joinder is proper. The order notes that there doesn't seem to be a connection between several of the defendants other than the fact that they were all engaged in Twitter-spamming.]