Section 230 Immunizes Twitter From Liability For ISIS’s Terrorist Activities–Fields v. Twitter

Abu Zaid, an alleged “lone wolf,” killed two American contractors in Jordan. ISIS claimed responsibility for the deaths, but “Plaintiffs do not allege that ISIS recruited or communicated with Abu Zaid over Twitter, that ISIS or Abu Zaid used Twitter to plan, carry out, or raise funds for the attack, or that Abu Zaid ever viewed ISIS-related content on Twitter or even had a Twitter account.” Nevertheless, the plaintiffs sued Twitter for allegedly providing material support to a known terrorist organization (ISIS), because of ISIS’s extensive use of Twitter. While the deaths were tragic, this lawsuit isn’t the right way to redress that tragedy, and the court says Section 230 immunizes Twitter from liability.

The opinion focuses on whether the plaintiffs’ claims treat Twitter as the “publisher or speaker” of ISIS’s content. To me, that’s an easy question. The only thing Twitter does for ISIS is give it tools to publish its content; and that fundamental relationship doesn’t change with the plaintiffs’ fancier or more creative ways of trying to characterize it. So when the plaintiff says Twitter “provides material support” to ISIS, this is just another way of saying that ISIS publishes content via Twitter.

To get around the obvious Section 230 problem, the plaintiffs claimed they were suing because Twitter allowed ISIS to create user accounts. This is a weird argument because a Twitter account that never tweets has little legal significance (i.e., the tree that fell in the forest that no one was around to hear), and once tweets start flowing, then the accountholder is publishing content and we’re back to Section 230’s core of immunizing Twitter from liability for third party content.

The court cites 3 problems with the plaintiffs’ attempted “provision of accounts” workaround:

1) it’s inconsistent with the complaint’s allegations, which almost exclusively focus on content publication, not account creation.
2) Section 230 protects account creation because an account gives users permission to publish content, so allowing users to create accounts is a form of editorial discretion. The court cites the First Circuit’s ruling in Doe v. Backpage for the proposition that Section 230 protects how UGC sites “structure and operate” themselves (reinforcing that the Doe case could be a really important ruling). The court rejects the plaintiffs’ arguments to analogize to the Barnes case (there’s no promissory estoppel claim here) and the Internet Brands case (there’s no allegation that Twitter failed to make sufficient disclosures).
3) The plaintiffs didn’t satisfactorily allege proximate causation because there is no significant connection between Twitter and the murders. The court doesn’t explain how proximate causation relates to the Section 230 immunity, so I wasn’t sure if the court was still talking about Section 230 or providing an independent basis for rejecting the complaint.

The plaintiffs also tried to work around Section 230 by arguing that they were suing because ISIS used Twitter’s direct messaging feature. Their argument appears to be that it’s not “publishing” for Section 230’s “publishing and speaking” requirement when users disseminate information in private messages instead of public posts. This is a terrible argument and the court quickly notes that “publication” under defamation law can occur even when information is disseminated to a single person. The court further cites Phan v. Pham, Delfino v. Agilent and Beyond v. Keynetics as cases that applied Section 230 to emails.

While the plaintiffs’ attempts to work around Section 230 were fairly anemic and a little old-school, I think the plaintiffs’ struggles to find a vector for courtroom success highlight how difficult it’s become to plead around Section 230’s broad immunity–at least in cases that touch Section 230’s core, as this case does. The only really novel legal argument about this case is the invocation of the federal anti-terrorism statute, a law that I believe has not been previously tested in Section 230 jurisprudence. But Section 230 has immunized plenty of other federal statutes and claims that the defendant facilitating illegal third party activity, so the court’s application of Section 230 to this federal statute isn’t really that surprising. (But compare the Tanisha v. Chandra court’s treatment of conspiracy allegations).

There are other pending lawsuits against social media sites for materially supporting terrorists. This ruling reinforces the likelihood that those cases will also fail for Section 230 and causation reasons. Meanwhile, the leading social media outlets have knuckled under to the US government’s jawboning/exhortations/coercion to “voluntarily” take action to suppress terroristic content on their network. Such efforts won’t matter to future plaintiffs, but it does seem relevant to the underlying policy issue of whether or not social media sites can actually prevent terrorists from using their network as part of terrorist activities.

Case citation: Fields v. Twitter, Inc., 2016 WL 4205687 (N.D. Cal. August 10, 2016)