Twitter Defeats Account Suspension Lawsuit Again–Al-Ahmed v. Twitter

I previously described the case:

This case involves the tragic situation where two Twitter employees allegedly became operatives for the Kingdom of Saudi Arabia and turned over sensitive information about the government’s critics to the Saudi Arabia government. I’m going to focus solely on Twitter’s suspension of one of the critic’s account, which Twitter claims was based on his dissemination of hateful/abusive messages. Twitter defended the claim on Section 230(c)(1) grounds.

The court initially dismissed the case on 230(c)(1) grounds. Al-Ahmed amended the complaint and tried again. Same result.

ICS Provider. “Twitter is an information content provider” (cite to Morton v. Twitter). This is an obvious mistake by the court. It meant to say that Twitter is an interactive computer service provider. If Twitter is an ICP, then that would count against the Section 230 defense.

Publisher/Speaker of 3rd Party Content. “Al-Ahmed’s claims are related to the suspension of his account, and the suspension of a user account is generally considered a publishing decision related to information provided by the user.”

All of Al-Ahmed’s attempts to work around Section 230 fail. Much of it was a rehash of the last ruling. The most interesting discussion by the court:

this Court observes that a natural reading of the statute suggests Section 230(c)(1) should only immunize a provider based on content posted by third parties, whereas Section 230(c)(2) with its good faith requirement should immunize a provider whenever it restricts user content or user access. Otherwise, if Section 230(c)(1) immunizes a provider’s decision to remove content as well as a provider’s decision not to remove content, then Section (c)(2)’s specification that immunity also extends to “any action voluntarily taken [by the provider] in good faith to restrict access” would be rendered superfluous. On these grounds, courts in other districts have declined to immunize provider’s restriction of user access under Section 230(c)(1). See, e.g., e-ventures Worldwide, LLC v. Google, Inc., No. 214CV646FTMPAMCM, 2017 WL 2210029 (M.D. Fla. Feb. 8, 2017). If this Court were to write on a clean slate, it might well concur.

However, despite the apparent import of the natural wording of Section 230(c)(1) and (2), it appears that in the Ninth Circuit, Section 230(c)(1) immunity attaches even where a provider restricts a plaintiff’s access. Sikhs for Just., Inc. v. Facebook, Inc., 697 F. App’x 526 (9th Cir. 2017); see also Riggs v. MySpace, Inc., 444 F. App’x 986, 987 (9th Cir. 2011) (affirming dismissal under Section 230(c)(1) based on the removal of the plaintiff’s user profile); King, 2021 WL 5279823, at *1 (holding Facebook has immunity under Section 230(c)(1) to the extent plaintiff’s claims were based on Facebook’s disabling plaintiff’s account). Thus, “[b]ecause Section 230(c)(1) applies here, Twitter is not required to demonstrate good faith.”

Sigh. We’ve discussed this issue many times before. Section 230(c)(2)(A) fills any gaps left open by 230(c)(1). In particular, it covers suits where an ICS provider is ALSO acting as an ICP, and thus ineligible for 230(c)(1). In that circumstance, the ICS provider can still claim the statutory immunity for its filtering or removal decisions if those are exercised in good faith. Otherwise, the filtering and removal decisions are covered by 230(c)(1) and can be done however the service wants. Also, the e-ventures cases has been repeatedly rejected by other courts, including Murphy v. Twitter (which called it “unpersuasive”), so it’s an outlier best ignored.

In total, the court says Section 230(c)(1) immunizes the following claims related to Al-Ahmed’s account suspension: “SCA, civil conspiracy, UCL, breach of contract, and promissory estoppel.” This list includes some claims that plaintiffs think should not be covered by Section 230. Most importantly, 230 expressly excludes the ECPA (230(e)(4)), which includes the SCA. This appears to be another mistake by the court. Per Barnes, plaintiffs also think promissory estoppel works around 230; and the Chandra case said 230 didn’t apply to civil conspiracy.

The court then contradictorily says that Section 230 doesn’t cover the contract breach claim, but it still fails because Al-Ahmed didn’t sufficiently identify the breached provision.

So you don’t miss it, there appear to be at least 3 clear mistakes in the court’s opinion:

  • Twitter as ICS provider
  • 230’s application to the SCA
  • breach of contract being both covered and not covered by 230

I’m not sure what’s going on in this judge’s chambers, but this is a suboptimal situation that will likely need correction.

* * *

I get increasingly nervous when I see new rulings involving Twitter because, at any point, we will start see rulings reflecting the post-Musk Twitter legal department, which has been hollowed out (who even is GC there any more?) and has stopped paying some (all?) outside counsel. It’s unrealistic to expect Twitter’s continued excellent track record of courtroom results after Musk starves the legal function for resources. What happens then? Plus, Musk could very well flip Twitter’s legal positions in court. Indeed, his “Twitter File” disclosures have given lots of ammo to Twitter plaintiffs, so we should not assume Musk’s Twitter will make the same legal arguments as it has in the past. Changes to Twitter’s courtroom positions could cause absolute chaos.

Also, I cringe when I think about Twitter’s interactions with Saudi Arabia, especially given Musk’s cozy personal and financial relationships with the government. (Reminder: Saudi investors are the second-biggest investors in Twitter). In this case, the Twitter employees who allegedly helped the Saudi government were apparently acting rogue, without official corporate authority. Would that still be true today? It’s increasingly likely that the entire Twitter enterprise is amenable to doing official favors for the Saudi government, with the boss’ blessing.

Case Citation: Al-Ahmed v. Twitter, Inc., 2023 WL 27356 (N.D. Cal. Jan. 3, 2022)