Reynaldo Gonzalez v. Google LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNALDO GONZALEZ; THE No. 18-16700
ESTATE OF NOHEMI GONZALEZ;
BEATRIZ GONZALEZ, Individually D.C. No.
and as Administrator of the Estate 4:16-cv-03282-
of Nohemi Gonzalez; JOSE DMR
HERNANDEZ; REY GONZALEZ;
PAUL GONZALEZ,
Plaintiffs-Appellants,
v.
GOOGLE LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
2 GONZALEZ V. GOOGLE
MEHIER TAAMNEH; LAWRENCE No. 18-17192
TAAMNEH; SARA TAAMNEH;
DIMANA TAAMNEH, D.C. No.
Plaintiffs-Appellants, 3:17-cv-04107-
EMC
v.
TWITTER, INC.; GOOGLE LLC;
FACEBOOK, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
GONZALEZ V. GOOGLE 3
GREGORY CLAYBORN, Individually No. 19-15043
and as Successor-In-Interest of the
Estate of SIERRA CLAYBORN; KIM D.C. Nos.
CLAYBORN; TAMISHIA CLAYBORN; 3:17-cv-06894-LB
VANESSA NGUYEN, Individually 3:18-cv-00543-LB
and as Successor-In-Interest of the
Estate of TIN NGUYEN; TRUNG DO;
JACOB THALASINOS; JAMES OPINION
THALASINOS,
Plaintiffs-Appellants,
v.
TWITTER, INC.; FACEBOOK, INC.;
GOOGLE LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted March 26, 2020
San Francisco, California
Filed June 22, 2021
Before: Ronald M. Gould, Marsha S. Berzon, and
Morgan Christen, Circuit Judges.
Opinion by Judge Christen;
Concurrence by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Gould
4 GONZALEZ V. GOOGLE
SUMMARY*
Anti-Terrorism Act
The panel addressed appeals from the district court’s
dismissal of three actions seeking damages under the Anti-
Terrorism Act against Google, Twitter, and Facebook on the
basis that defendants’ social media platforms allowed ISIS to
post videos and other content to communicate the terrorist
group’s message, to radicalize new recruits, and to generally
further its mission. The panel affirmed the judgments in the
Gonzalez and Clayborn appeals and reversed and remanded
in Taamneh.
Members of the families of victims of terrorism in Paris,
Istanbul, and San Bernardino alleged that Google, Twitter,
and Facebook were directly and secondarily liable for ISIS’s
acts of international terrorism. The Gonzalez plaintiffs
brought claims for both direct and secondary liability against
Google. The district court concluded that most of plaintiffs’
claims were barred pursuant to 47 U.S.C. § 230 of the
Communications Decency Act, and the direct liability claims
failed to adequately allege proximate cause. In the Taamneh
and Clayborn cases, the district court concluded that plaintiffs
failed to plausibly allege a secondary liability claim against
Google, Twitter, and Facebook.
The panel held that the district court in Gonzalez properly
ruled that § 230 barred most of plaintiffs’ claims. The panel
further held that the Gonzalez plaintiffs failed to state an
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GONZALEZ V. GOOGLE 5
actionable claim as to their remaining theories of liability. In
Taamneh, the panel held that the district court erred by ruling
that plaintiffs failed to state a claim for aiding-and-abetting
liability under the ATA. In Clayborn, the panel concluded
that the district court correctly held that plaintiffs failed to
plausibly plead their claim for aiding-and-abetting liability.
Addressing Gonzalez, the panel held that the civil
remedies section of the ATA permits United States nationals
to recover damages for injuries suffered “by reason of acts of
international terrorism.” The Justice Against Sponsors of
International Terrorism Act of 2016 (JASTA) amended the
ATA to include secondary civil liability for aiding and
abetting, or conspiring to commit, acts of international
terrorism. Section 230 of the Communications Decency Act
protects websites from liability for material posted on the
website by someone else. The panel held that the
presumption against the extraterritorial application of federal
statutes did not prevent § 230 from applying to the Gonzalez
plaintiffs’ claims because the relevant conduct took place in
the United States. The panel concluded that JASTA did not
impliedly repeal § 230. Agreeing with the First and Second
Circuits, the panel held that the exception set forth in
§ 230(e)(1), concerning impairment of the enforcement of
federal criminal statutes, does not extend to actions for civil
damages. Thus, the Gonzalez plaintiffs’ claims were not
categorically excluded from the reach of § 230 immunity.
The Gonzalez plaintiffs argued that the immunity afforded
by § 230 did not bar their claims because § 230 immunizes
only those who publish content created by third parties, and
their claims were directed to content created by Google.
Google argued that the plaintiffs impermissibly sought to
treat Google as a publisher of content created by third parties,
6 GONZALEZ V. GOOGLE
presumably ISIS, on YouTube. In Part III.E of its opinion,
the panel affirmed the district court’s ruling that § 230 barred
all of plaintiffs’ claims except to the extent their complaint
presented claims premised on the allegation that Google
shared advertising revenue with ISIS. Section 230(c)
precludes liability for “(1) a provider or user of an interactive
computer service (2) whom a plaintiff seeks to treat . . . as a
publisher or speaker (3) of information provided by another
information content provider.” The panel concluded that
plaintiffs’ claims did not inherently require the court to treat
Google as the publisher or speaker of content provided by
ISIS, and the duty that plaintiffs alleged Google violated did
not derive from Google’s status or conduct as a publisher or
speaker. The panel concluded that Google did not create or
develop content by making a material contribution to its
alleged unlawfulness when it created the “mosaics” by which
ISIS videos were delivered. The panel held that the court’s
case law foreclosed the argument that Google’s pairing of
ISIS content with selected advertising and other videos
vitiated § 230 immunity. Accepting as true plaintiffs’
allegation that Google’s algorithms recommended ISIS
content to users, and agreeing with the Second Circuit, the
panel wrote that the algorithms did not treat ISIS-created
content differently than any other third-party created content,
and thus were entitled to § 230 immunity.
In Part III.F of its opinion, the panel held that § 230 did
not bar the Gonzalez plaintiffs’ claims premised on the
allegation that because it shared advertising revenue with
ISIS, Google should be held directly liable for providing
material support to ISIS and secondarily liable for providing
substantial assistance to ISIS.
GONZALEZ V. GOOGLE 7
In Parts IV and V, the panel held that the Gonzalez
plaintiffs did not adequately allege claims for direct or
secondary liability under the ATA based on a revenue-sharing
theory. As to direct liability, plaintiffs failed to plausibly
allege that Google directly perpetrated an act of international
terrorism because they did not allege that Google’s actions
were motivated by anything other than economic self-
enrichment. As to secondary liability, plaintiffs did not state
a claim on either a theory of aiding and abetting or a theory
of conspiracy liability.
In Part VI, reversing the district court’s dismissal of the
Taamneh action, the panel held that the Taamneh plaintiffs
adequately stated a claim for aiding-and-abetting liability.
In Part VII, affirming the dismissal of the Clayborn
action, the panel held that because the Clayborn plaintiffs did
not plausibly allege that ISIS committed, planned or
authorized the terrorist attack in San Bernardino, they did not
adequately state a claim for aiding and abetting an act of
international terrorism.
Judge Berzon concurred in the majority opinion in full.
She wrote separately to explain that, although the panel was
bound by Ninth Circuit precedent compelling the outcome in
this case, she joined the growing chorus of voices calling for
a more limited reading of the scope of § 230 immunity.
Judge Berzon urged the court to reconsider its precedent en
banc to the extent that it holds that § 230 immunity extends
to the use of machine-learning algorithms to recommend
content and connections to users.
Judge Gould concurred in the majority opinion in its Parts
I and II, Part III.A through III.D, Part III.F, and Part VI and
8 GONZALEZ V. GOOGLE
dissented in part as to Part III.E and Parts IV, V, and VII.
Judge Gould wrote that he concurred insofar as the majority
would reverse in part the dismissal of revenue-sharing claims
in Gonzalez, and insofar as it would reverse the district
court’s judgment in Taamneh that the complaint failed to
adequately state a claim under the ATA. Judge Gould wrote
that he dissented as to the majority’s dismissal of the
Gonzalez claims on grounds of § 230 immunity, and of
failure to state a claim for direct or secondary liability under
the ATA, because of the majority’s mistaken conclusion that
there was no act of international terrorism, and he also would
hold that the complaint adequately alleged that there was
proximate cause supporting damages on those claims. Judge
Gould agreed that claims could proceed in the Taamneh case,
and accordingly agreed with reversing and remanding in that
case. On the Clayborn case, Judge Gould dissented because
the majority’s conception of an attack authorized by ISIS was
inconsistent with the allegations of the operative complaint
and well-established principles of tort and agency law.
GONZALEZ V. GOOGLE 9
COUNSEL
Keith Altman (argued) and Daniel W. Weininger (argued),
Excolo Law, Southfield, Michigan, Plaintiffs-Appellants
Reynaldo Gonzalez, Mehier Taamneh, Lawrence Taamneh,
Sara Taamneh, Dimana Taamneh, Gregory Clayborn, Kim
Clayborn, Tamishia Clayborn, Vanessa Nguyen, Trung Do,
Jacob Thalasinos, and James Thalasinos.
Robert J. Tolchin (argued) and Meir Katz, Berkman Law
Office LLC, Brooklyn, New York; for Plaintiffs-Appellants
Estate of Nohemi Gonzalez; Beatriz Gonzalez, Jose
Hernandez, Rey Gonzalez, and Paul Gonzalez.
Brian M. Willen (argued), Wilson Sonsini Goodrich &
Rosati, New York, New York; David H. Kramer, Lauren
Gallo White, and Kelly M. Knoll, Wilson Sonsini Goodrich
& Rosati, Palo Alto, California; for Defendant-Appellee
Google LLC.
Kristin A. Linsley (argued) and Jacob T. Spencer, Gibson
Dunn & Crutcher LLP, San Francisco, California; for
Defendant-Appellee Facebook Inc.
Seth P. Waxman, Patrick J. Carome, and Ari Holtzblatt,
Wilmer Cutler Pickering Hale & Dorr LLP, Washington,
D.C., for Defendant-Appellee Twitter Inc.
Aaron Mackey and Sophia Cope, Electronic Frontier
Foundation, San Francisco, California, for Amicus Curiae
Electronic Frontier Foundation.
10 GONZALEZ V. GOOGLE
OPINION
CHRISTEN, Circuit Judge:
We address three appeals arising from separate acts of
terrorism—one in Paris, one in Istanbul, and one in San
Bernardino—in which Nohemi Gonzalez, Nawras Alassaf,
Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos lost
their lives. The foreign terrorist organization known as ISIS
took responsibility for the attacks in Paris and Istanbul and
lauded the attack in San Bernardino after the fact. Plaintiffs
are members of the victims’ families.
Plaintiffs seek damages pursuant to the Anti-Terrorism
Act (ATA), 18 U.S.C. § 2333. The ATA allows United
States nationals to recover damages for injuries suffered “by
reason of an act of international terrorism,” id. § 2333(a), but
the defendant in these cases is not ISIS. Instead, plaintiffs
allege that Google, Twitter, and Facebook are directly and
secondarily liable for the five murders at issue in these cases.
The complaints allege that defendants’ social media platforms
allowed ISIS to post videos and other content to communicate
the terrorist group’s message, to radicalize new recruits, and
to generally further its mission. Plaintiffs also claim that
Google placed paid advertisements in proximity to
ISIS-created content and shared the resulting ad revenue with
ISIS. In these and other ways, all three complaints allege
defendants are directly liable for committing acts of
international terrorism pursuant § 2333(a) of the ATA, and
secondarily liable for conspiring with, and aiding and
GONZALEZ V. GOOGLE 11
abetting, ISIS’s acts of international terrorism pursuant to
§ 2333(d).1
This opinion addresses three separate appeals. The
Gonzalez appeal concerns claims for both direct and
secondary liability against Google. In that case, the district
court granted Google’s motion to dismiss, concluding that
most of the Gonzalez Plaintiffs’ claims were barred pursuant
to 47 U.S.C. § 230 of the Communications Decency Act
(CDA), and that the Gonzalez Plaintiffs’ direct liability
claims failed to adequately allege proximate cause. The
Taamneh and Clayborn appeals concern claims for secondary
liability against Google, Twitter, and Facebook. In both of
these cases, the district court granted defendants’ motions to
dismiss on the grounds that the plaintiffs failed to plausibly
allege a secondary liability claim under the ATA.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
conclude the district court in Gonzalez properly ruled that
§ 230 bars most of the Gonzalez Plaintiffs’ claims, and that
the Gonzalez Plaintiffs failed to state an actionable claim as
to their remaining theories of liability asserted pursuant to the
ATA. In Taamneh, we conclude the district court erred by
ruling the Plaintiffs failed to state a claim for aiding-and-
abetting liability under the ATA. The district court did not
reach § 230 immunity in Taamneh. In Clayborn, we
conclude the district court correctly held that Plaintiffs failed
1
The acronym “ISIS” refers to “The Islamic State of Iraq and Syria.”
ISIS is occasionally referred to as “ISIL” or “The Islamic State of Iraq and
the Levant.” Both names are derived from the Arabic “ad-Dawlah al-
Islamiyah fil-‘Iraq wash-Sham.” The organization later shortened its
name to “ad-Dawlah al-Islamiyah” (“The Islamic State” or “IS”). For
simplicity, we use the name ISIS.
12 GONZALEZ V. GOOGLE
to plausibly plead their claim for aiding-and-abetting liability.
We therefore affirm the judgments in Gonzalez and Clayborn,
and reverse and remand for further proceedings in Taamneh.
I
A
Nohemi Gonzalez, a 23-year-old U.S. citizen, studied in
Paris, France during the fall of 2015. On November 13,
2015, when Nohemi was enjoying an evening meal with her
friends at a café, three ISIS terrorists—Abdelhamid Abaaoud,
Brahim Abdeslam, and Chakib Akrouh—fired into the crowd
of diners, killing her. This tragic event occurred within a
broader series of attacks perpetrated by ISIS in Paris on
November 13 (the “Paris Attacks”). ISIS carried out several
suicide bombings and mass shootings in Paris that day,
including a massacre at the Bataclan theatre. The day after
the Paris Attacks, ISIS claimed responsibility by issuing a
written statement and releasing a YouTube video.
The operative Gonzalez complaint alleges that at the time
of the Paris Attacks, ISIS had become one of the largest and
most widely recognized terrorist organizations in the world.
The complaint also alleges that ISIS carried out violent
terrorist attacks as a means of instilling terror in the public
and communicating its broader objectives, and that ISIS’s
messages—communicated before, during and after its terror
attacks—are essential components of generating the physical,
emotional, and psychological impact ISIS desires to achieve.
Google owns YouTube, a global online service used to
post, share, view, and comment on videos related to a vast
range of topics. Users can post content directly on YouTube,
GONZALEZ V. GOOGLE 13
though Google has the ability to remove any content. When
Google receives a complaint about a video, it reviews the
video and removes it if it violates Google’s content policies.
The Gonzalez complaint alleges that YouTube “has
become an essential and integral part of ISIS’s program of
terrorism,” and that ISIS uses YouTube to recruit members,
plan terrorist attacks, issue terrorist threats, instill fear, and
intimidate civilian populations. According to the Gonzalez
Plaintiffs, YouTube provides “a unique and powerful tool of
communication that enables ISIS to achieve [its] goals.”
With regard to the Paris Attacks in particular, the
Gonzalez Plaintiffs allege that two of the twelve ISIS
terrorists who carried out the attacks used online social media
platforms to post links to ISIS recruitment YouTube videos
and “jihadi YouTube videos.” Abaaoud, one of the attackers
in the café shooting, appeared in an ISIS YouTube video
from March 2014, and delivered a monologue aimed at
recruiting jihadi fighters to join ISIS.
The Gonzalez Plaintiffs’ theory of liability generally
arises from Google’s recommendations of content to users.
These recommendations are based upon the content and
“what is known about the viewer.” Specifically, the
complaint alleges Google uses computer algorithms to match
and suggest content to users based upon their viewing history.
The Gonzalez Plaintiffs allege that, in this way, Google has
“recommended ISIS videos to users” and enabled users to
“locate other videos and accounts related to ISIS,” and that by
doing so, Google assists ISIS in spreading its message. The
Gonzalez Plaintiffs’ theory is that YouTube is “useful[] in
facilitating social networking among jihadists” because it
14 GONZALEZ V. GOOGLE
provides “[t]he ability to exchange comments about videos
and to send private messages to other users.”
The complaint also asserts that Google pairs videos with
advertisements and that it targets advertisements based on
information about the advertisement, the user, and the posted
video. The complaint alleges that by doing so, Google
exercises control over which advertisements are matched with
videos posted by ISIS on YouTube, creating new unique
content for viewers “by choosing which advertisement to
combine with the posted video with knowledge about the
viewer.”
The Gonzalez Plaintiffs’ complaint also alleges that
Google’s practice is to share a percentage of the revenue it
generates from these ads with the users who post the videos.
Specifically, the complaint alleges that Google “reviewed and
approved ISIS videos, including videos posted by ISIS-
affiliated users, for monetization through” its placement of
ads on those videos, thereby agreeing to share revenue with
ISIS and ISIS-affiliated users.
According to the Gonzalez Plaintiffs, Google is aware of
ISIS’s presence on YouTube, has received complaints about
ISIS content, has the ability to remove ISIS content from
YouTube, and has “suspended or blocked selected ISIS-
related accounts at various times.” The complaint asserts that
in spite of Google’s knowledge and control, Google “did not
make substantial or sustained efforts to ensure that ISIS
would not re-establish the accounts using new identifiers.”
Instead, the Gonzalez Plaintiffs allege, Google sometimes
declined to remove ISIS accounts because the content posted
by those accounts did not violate YouTube’s policies and, on
other occasions, Google removed only a portion of the
GONZALEZ V. GOOGLE 15
content posted on ISIS-related accounts but permitted the
accounts to remain active.2
Reynaldo Gonzalez, Nohemi’s father, filed an action
against Google, Twitter, and Facebook on June 14, 2016, and
a Second Amended Complaint (SAC) on April 21, 2017. The
SAC joined additional family members and named only
Google as a defendant. According to the SAC, Google aided
and abetted international terrorism and provided material
support to international terrorism by allowing ISIS to use
YouTube. See 18 U.S.C. § 2333(a), (d). Claims One and
Two alleged that Google is secondarily liable for aiding and
abetting acts of international terrorism and for conspiring
with ISIS; Claims Three and Four alleged that Google is
directly liable for providing material support and resources to
ISIS. Google moved to dismiss all of the Gonzalez Plaintiffs’
claims on the grounds that they were barred by § 230 of the
CDA. See 47 U.S.C. § 230(c). The district court granted the
motion to dismiss, but gave the Gonzalez Plaintiffs an
opportunity to amend.
The Third Amended Complaint (TAC) is the operative
complaint. In it, the Gonzalez Plaintiffs added additional
claims. The Plaintiffs allege that Google is secondarily liable
for Nohemi’s death because Google aided and abetted an act
of international terrorism and engaged in a conspiracy with a
2
The Gonzalez Plaintiffs also allege that “Google has tools by which
it can identify, flag, review, and remove ISIS YouTube accounts,” but
improperly focuses primarily “on whether the content posted violates
Google’s own ‘Community Standards,’ rather than examin[ing] whether
the account is being used by or for the benefit” of terrorists. They further
allege that “[e]ven when Google occasionally deletes an account for
violating its Community Standards, it allows these accounts to be quickly
regenerated.”
16 GONZALEZ V. GOOGLE
perpetrator of an act of international terrorism. The Gonzalez
TAC also alleges that Google is directly liable under
§ 2333(a) for providing material support and resources to
ISIS, and for concealing this support, in violation of 18
U.S.C. §§ 2339A, 2339B(a)(1), and 2339C(c).3
Google moved to dismiss the entire TAC based on § 230
immunity, and alternatively moved to dismiss the § 2333(a)
direct liability claims (Claims Three through Six) on the
ground that they failed to plausibly allege Google
proximately caused the Gonzalez Plaintiffs’ injury. The
district court ruled that all of Plaintiffs’ claims were barred by
§ 230, except to the extent Claims Three and Four were
premised on a revenue-sharing theory. The court concluded
that Claims Three through Six failed to plausibly allege
proximate cause. The revenue-sharing claims were dismissed
without prejudice; all the other claims were dismissed with
prejudice. The Gonzalez Plaintiffs did not further amend, but
they did timely appeal.
B
Nawras Alassaf, a Jordanian citizen, visited Istanbul,
Turkey with his wife to celebrate the 2017 New Year. He
was killed on January 1, 2017, when Abdulkadir
Masharipov—an individual affiliated with and trained by
ISIS—carried out a shooting massacre at the Reina nightclub
there (the “Reina Attack”). Masharipov arrived at the Reina
nightclub shortly after midnight and, during a seven-minute
3
Separately, the Gonzalez Plaintiffs allege that Google provided
funds, goods, or services to or for the benefit of global terrorists in
violation of Executive Order No. 13224, 31 C.F.R. Part 594, and
50 U.S.C. § 1705.
GONZALEZ V. GOOGLE 17
attack, fired more than 120 rounds into the crowd of 700
people, killing 39 and injuring 69 others. Masharipov
escaped the nightclub and evaded arrest for over two weeks
but was ultimately apprehended. On the day after the attack,
ISIS issued a statement claiming responsibility for the Reina
Attack.
Twitter is a social networking service, that allows users to
publicly connect with other users and to distribute content
publicly by posting “tweets.” The Taamneh Plaintiffs allege
that Twitter has the ability to remove tweets and accounts, but
does not do so proactively. Instead, Twitter reviews content
that is reported by others as violating its rules.
Facebook is also a social networking service that allows
users to communicate with other users and to share and
distribute content publicly. Facebook has the ability to
remove content posted by its users.
The Taamneh Plaintiffs are relatives of Nawras Alassaf.
They allege that Google, Twitter, and Facebook were a
critical part of ISIS’s growth. Much like the Gonzalez
complaint, the Taamneh complaint alleges that ISIS uses
defendants’ social media platforms to recruit members, issue
terrorist threats, spread propaganda, instill fear, and
intimidate civilian populations. According to the Taamneh
Plaintiffs, ISIS could not have grown into one of the most
recognizable and feared terrorist organizations without the
effective communications platforms provided by defendants
free of charge.
The Taamneh Plaintiffs’ complaint alleges that ISIS and
its affiliated entities have used YouTube, Twitter, and
Facebook for many years with “little or no interference.”
18 GONZALEZ V. GOOGLE
“Despite extensive media coverage, complaints, legal
warnings, petitions, congressional hearings, and other
attention for providing [their] online social media platforms
and communications services to ISIS, . . . Defendants
continued to provide these resources and services to ISIS and
its affiliates.” The Taamneh Plaintiffs also allege that
defendants knowingly permitted ISIS and its members and
affiliates to use their platforms, and reviewed ISIS’s use only
in response to third-party complaints. The complaint further
alleges that even when defendants received complaints about
ISIS’s use of their platforms, the defendants “have at various
times determined that ISIS’s use of [their] [s]ervices did not
violate Defendants’ policies,” and therefore “permitted ISIS-
affiliated accounts to remain active, or removed only a
portion of the content posted on an ISIS-related account . . . .”
The Taamneh Plaintiffs’ claims against Google, Twitter,
and Facebook, allege these defendants aided and abetted an
act of international terrorism, conspired with the perpetrator
of an act of international terrorism, and provided material
support to ISIS, by allowing ISIS to use their social media
platforms. Like the Gonzalez Plaintiffs, the Taamneh
Plaintiffs allege that defendants’ actions violated the ATA.
Specifically, the Taamneh complaint includes claims for
direct and secondary liability under the ATA, 18 U.S.C.
§ 2333(a), (d), and state-law claims for negligent infliction of
emotional distress and wrongful death.
In response to defendants’ first motion to dismiss, the
Taamneh Plaintiffs amended their complaint once as a matter
of right and added additional claims. The First Amended
Complaint (FAC) is the operative complaint and it alleges
that Google, Twitter, and Facebook are secondarily liable
under § 2333(d) for aiding and abetting an act of international
GONZALEZ V. GOOGLE 19
terrorism and for conspiring with a perpetrator of an act of
international terrorism. The Taamneh complaint also alleges
that Google, Twitter, and Facebook are directly liable under
§ 2333(a) for providing material support and resources to
ISIS, and for concealing this support, in violation of
18 U.S.C. §§ 2339A, 2339B(a)(1), and 2339C(c).4
Defendants moved to dismiss. The district court ruled the
direct liability claims failed to adequately allege proximate
cause, and that the secondary liability claims failed to state a
claim for conspiracy to commit an act of international
terrorism, or for aiding and abetting an act of international
terrorism. The court dismissed the complaint with prejudice,
and the Taamneh Plaintiffs timely appealed.
C
Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos
attended an office holiday party at the Inland Regional Center
in San Bernardino, California on December 2, 2015. Syed
Rizwan Farook, a U.S. citizen, and Tashfeen Malik, Farook’s
wife, entered the building dressed in black and armed with
AR-15 semi-automatic rifles, a .9mm handgun, and
assembled pipe bombs. Farook and Malik indiscriminately
fired more than 100 rounds into the office gathering (the San
Bernardino Attack). At some point during the attack, Malik
declared on her Facebook page the couples’ allegiance and
loyalty to former ISIS leader, Abu Bakr al-Baghdadi.
Clayborn, Ngyuen, and Thalasinos were among the fourteen
4
The Taamneh Plaintiffs’ complaint also includes an allegation that
Google, Twitter, and Facebook provided funds, goods, or services to or for
the benefit of global terrorists in violation of Executive Order No. 13224,
31 C.F.R. Part 594, and 50 U.S.C. § 1705.
20 GONZALEZ V. GOOGLE
people murdered in the attack. Twenty-two others were
seriously wounded. After the San Bernardino Attack, Farook
and Malik fled the scene and were killed in a police shootout.
ISIS issued a statement two days later that “[t]wo followers
of Islamic State attacked several days ago a center in San
Bernardino in California, we pray to God to accept them as
Martyrs.”
The Clayborn Plaintiffs are relatives of Sierra Clayborn,
Tin Nguyen, and Nicholas Thalasinos. Plaintiffs allege that
Twitter, Facebook, and Google aided and abetted
international terrorism and provided material support to
international terrorists in violation of the ATA, by allowing
ISIS to use their platforms. The Clayborn Plaintiffs allege
Farook and Malik were radicalized by ISIS’s use of social
media. This complaint includes direct and secondary liability
claims against all three defendants pursuant to 18 U.S.C.
§§ 2333(a) and (d), 2339A, 2339B, and 2339C, and state-law
claims for negligent infliction of emotional distress and
wrongful death.
Defendants moved to dismiss. The district court granted
the motion and dismissed the Clayborn Plaintiffs’ operative
complaint on the grounds that the direct liability claims failed
to adequately allege proximate cause, and that the secondary
liability claims failed to plausibly allege substantial assistance
or that ISIS committed, planned, or authorized the San
Bernardino Attack. The Clayborn Plaintiffs only appeal the
district court’s ruling that they failed to adequately plead a
secondary liability claim for aiding and abetting international
terrorism under 18 U.S.C. § 2333(d).
GONZALEZ V. GOOGLE 21
II
We review de novo a district court’s order granting a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), accepting all factual allegations as true and
construing them in the light most favorable to the nonmoving
party. Fields v. Twitter, Inc., 881 F.3d 739, 743 (9th Cir.
2018).
These appeals concern claims for civil liability under the
ATA. The civil remedies section of the ATA permits United
States nationals to recover damages for injuries suffered “by
reason of an act of international terrorism.” 18 U.S.C.
§ 2333(a). The ATA contains criminal provisions, the
violation of which can give rise to a cause of action under
§ 2333(a) providing other conditions are met. Fields,
881 F.3d at 743. Specifically, 18 U.S.C. §§ 2339A, 2339B,
and 2339C criminalize providing material support for
terrorism, providing material support for foreign terrorist
organizations, and financing terrorism, respectively.5
5
Section 2339A(a) prohibits the provision of “material support or
resources” by anyone “knowing or intending that they are to be used in
preparation for, or in carrying out” any of several enumerated crimes of
terrorism. 18 U.S.C. § 2339A(a). Section 2339B(a)(1) prohibits the
knowing provision of “material support or resources to a foreign terrorist
organization.” Id. § 2339B(a)(1). Section 2339C(c) prohibits the
knowing “conceal[ment] or disguise[] [of] the nature, location, source,
ownership, or control” of any support, resources, or funds, knowing that
such “support or resources are to be provided, or . . . were provided, in
violation of section 2339B.” Id. § 2339C(c). Executive Order No. 13224,
31 C.F.R. Part 594 and 50 U.S.C. § 1705 generally prohibit providing
funds, goods, or services to or for the benefit of designated global
terrorists.
22 GONZALEZ V. GOOGLE
“[I]nternational terrorism” is defined in 18 U.S.C.
§ 2331(1). Acts of international terrorism “involve violent
acts or acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that
would be a criminal violation if committed within the
jurisdiction of the United States or of any State.” 18 U.S.C.
§ 2331(1)(A). The acts must “appear to be intended—(i) to
intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to
affect the conduct of a government by mass destruction,
assassination, or kidnapping.” Id. § 2331(1)(B). Finally, the
acts must “occur primarily outside the territorial jurisdiction
of the United States, or transcend national boundaries . . . .”
Id. § 2331(1)(C).
In 2016, Congress broadened the scope of ATA liability
by enacting the Justice Against Sponsors of Terrorism Act
(JASTA), Pub. L. No. 144-222, 130 Stat. 852 (2016). JASTA
amended the ATA to include secondary civil liability for “any
person who aids and abets, by knowingly providing
substantial assistance, or who conspires with the person who
committed” an act of international terrorism that was
“committed, planned, or authorized” by a foreign terrorist
organization. Pub. L. 114-222, § 2(b), 130 Stat. 852, 854
(2016); 18 U.S.C. § 2333(d). Thus, as amended, the ATA
allows claims for direct liability for committing acts of
international terror pursuant to § 2333(a), or secondary
liability pursuant to § 2333(d) for aiding and abetting, or
conspiring to commit, acts of international terrorism.
III
These cases share some common issues but took different
paths to reach our court. In Gonzalez, the district court
GONZALEZ V. GOOGLE 23
primarily relied on § 230 immunity to conclude that all but
the Gonzalez Plaintiffs’ revenue-sharing claims were barred.
The district court separately concluded the revenue-sharing
claims failed because the TAC did not plausibly allege that
Google proximately caused Nohemi’s death. The court
allowed the Gonzalez Plaintiffs an opportunity to amend their
revenue-sharing claims, but the plaintiffs declined to do so,
and final judgment was entered. In Taamneh and Clayborn,
the district courts did not consider § 230 immunity. Instead,
the direct liability claims were dismissed for failure to
plausibly allege proximate cause, and the secondary liability
claims were dismissed for failure to plausibly allege liability
for aiding and abetting or conspiracy.
On appeal, the Gonzalez Plaintiffs begin by arguing that
§ 230 does not apply to their claims at all. They make three
arguments in support of this contention: (1) § 230 immunity
has no application to extraterritorial claims; (2) Congress
impliedly repealed § 230 when it amended the ATA in 2016;
and (3) § 230 immunity does not apply to ATA claims based
on criminal statutes. Alternatively, the Gonzalez Plaintiffs
argue that their claims, both revenue-sharing and those
unrelated to revenue-sharing, survive the application of § 230.
Finally, the Gonzalez Plaintiffs argue that the TAC
adequately states claims for direct and secondary liability
under the ATA. The Taamneh Plaintiffs and the Clayborn
Plaintiffs argue their complaints adequately allege that
defendants violated the ATA by aiding and abetting an act of
international terrorism.6 We begin by considering the
6
Though the district court did not address the application of § 230
immunity to the Taamneh Plaintiffs’ claims, defendants raise § 230 on
appeal as an alternative basis for affirmance. We decline to reach this
question in the first instance.
24 GONZALEZ V. GOOGLE
application of § 230 immunity to the Gonzalez Plaintiffs’
claims.
A
Congress enacted the Communications Decency Act as
part of the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56. Section 230 of the CDA “immunizes
providers of interactive computer services against liability
arising from content created by third parties.” Fair Hous.
Council of San Fernando Valley v. Roommates.Com, LLC,
521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (footnote
omitted). Congress designed § 230 “to promote the free
exchange of information and ideas over the Internet and to
encourage voluntary monitoring for offensive or obscene
material.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099–1100
(9th Cir. 2009) (quoting Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119, 1122 (9th Cir. 2003)). Congress was
concerned with “the ease with which the Internet delivers
indecent or offensive material, especially to minors” and
sought “to empower interactive computer service providers
to self-regulate.” Force v. Facebook, Inc., 934 F.3d 53,
78–79 (2d Cir. 2019) (Katzmann, C.J., concurring in part and
dissenting in part). To avoid chilling speech, Congress
“made a policy choice . . . not to deter harmful online speech
through the separate route of imposing tort liability on
companies that serve as intermediaries for other parties’
potentially injurious messages.” Carafano, 339 F.3d at 1123(alteration in original) (quoting Zeran v. Am. Online, Inc.,
129 F.3d 327, 330 (4th Cir. 1997)).
The operative provision, § 230(c)(1), states “[n]o provider
or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by
GONZALEZ V. GOOGLE 25
another information content provider.” 47 U.S.C.
§ 230(c)(1). We have said that, “[i]n general, this section
protects websites from liability for material posted on the
website by someone else.” Doe v. Internet Brands, Inc.,
824 F.3d 846, 850 (9th Cir. 2016).
Section 230’s use of the phrase “publisher or speaker”
was prompted by a New York state-court decision that held
an internet service provider legally responsible for a
defamatory message posted to one of its message boards.
Roommates, 521 F.3d at 1163 (citing Stratton Oakmont, Inc.
v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct.
May 24, 1995) (unpublished)). Stratton Oakmont concluded
that the internet service provider “had become a ‘publisher’
under state law because it voluntarily deleted some messages
from its message boards ‘on the basis of offensiveness and
bad taste,’ and was therefore legally responsible for the
content of defamatory messages that it failed to delete.” Id.(emphasis added) (internal quotation marks omitted) (quoting
Stratton Oakmont, 1995 WL 323710, at *4). The original
goal of § 230 was modest. By passing § 230, Congress
sought to allow interactive computer services “to perform
some editing on user-generated content without thereby
becoming liable for all defamatory or otherwise unlawful
messages that they didn’t edit or delete.” Id.
B
The Gonzalez Plaintiffs first argue that the presumption
against the extraterritorial application of federal statutes
prevents § 230 from applying to their claims. We disagree.
The presumption against extraterritoriality requires that,
“[a]bsent clearly expressed congressional intent to the
26 GONZALEZ V. GOOGLE
contrary, federal laws will be construed to have only domestic
application.” RJR Nabisco, Inc. v. European Cmty., 136 S.
Ct. 2090, 2100 (2016). The Supreme Court “has established
a two-step framework for deciding questions of
extraterritoriality.” WesternGeco LLC v. ION Geophysical
Corp., 138 S. Ct. 2129, 2136 (2018). “The first step asks
‘whether the presumption against extraterritoriality has been
rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).
The presumption is rebutted only when “the text [of the
statute] provides a ‘clear indication of an extraterritorial
application.’” Id. (quoting Morrison v. Nat’l Austl. Bank
Ltd., 561 U.S. 247, 255 (2010)). If the presumption is not
rebutted by the statute’s text, “the second step of [the]
framework asks ‘whether the case involves a domestic
application of the statute.’” Id. (quoting RJR Nabisco, 136 S.
Ct. at 2101). This step requires the court to identify the
statute’s focus, and ask “whether the conduct relevant to that
focus occurred in United States territory.” Id. “If it did, then
the case involves a permissible domestic application of the
statute.” Id.
The Gonzalez Plaintiffs argue that RJR Nabisco
recognized an exception to this two-step framework where,
as here, all relevant conduct takes place outside the United
States. To support this proposition, they rely on the Supreme
Court’s statement in RJR Nabisco that “[b]ecause ‘all the
relevant conduct’ regarding those violations ‘took place
outside the United States,’ we did not need to determine . . .
the statute’s ‘focus.’” 136 S. Ct. at 2101 (citation omitted)
(quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,
124 (2013)). The Gonzalez Plaintiffs misread RJR Nabisco.
The passage they rely upon explained only that, on the facts
of Kiobel, an inquiry into the focus of the statute was
GONZALEZ V. GOOGLE 27
unnecessary because all the relevant conduct was foreign.
Id.7
The Gonzalez Plaintiffs next argue that even if the RJR
Nabisco framework is applied, the framework demonstrates
that the their claims involve an extraterritorial application of
§ 230. Again, we are not persuaded.
RJR Nabisco requires that we begin by asking whether the
statute “gives a clear, affirmative indication that it applies
extraterritorially.” 136 S. Ct. at 2101. Neither party
identifies any indication that Congress intended § 230 to
apply extraterritorially, so we proceed to step two.
At step two, to determine whether claims involve a
domestic application of the statute, we must identify “the
statute’s focus.” Id. A statute’s focus is “the object of its
solicitude, which can include the conduct it seeks to regulate,
as well as the parties and interests it seeks to protect or
vindicate.” WesternGeco, 138 S. Ct. at 2137 (internal
quotations and alterations omitted). “If the conduct relevant
to the statute’s focus occurred in the United States . . . , then
7
Google separately argues that because § 230 does not directly
regulate conduct, extraterritoriality principles are not implicated at all.
The Ninth Circuit addressed a similar situation in a pre-RJR Nabisco case.
See Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008).
There, our court concluded that the General Aviation Revitalization Act’s
statute of repose did not “impermissibly regulate conduct that ha[d]
occurred abroad.” Id. at 953. Instead, the statute “merely eliminate[d] the
power of any party to bring a suit for damages . . . after the limitation
period.” Id. “Accordingly, the presumption against extraterritoriality
simply [was] not implicated . . . .” Id. Because we conclude this case
does not involve an impermissibly extraterritorial application of law under
the RJR Nabisco framework, we need not decide the applicability of
Blazevska. See also Force, 934 F.3d at 74.
28 GONZALEZ V. GOOGLE
the case involves a permissible domestic application of the
statute.” Id. at 2136 (internal quotation marks omitted)
(quoting RJR Nabisco, 136 S. Ct. at 2101).
The object of § 230(c)(1)’s solicitude is to encourage
providers of interactive computer services to monitor their
websites by limiting liability. Force, 934 F.3d at 74
(concluding § 230’s “primary purpose is limiting civil
liability in American courts”). Section 230 “immunizes
providers of interactive computer services against liability
arising from content created by third parties.” Roommates,
521 F.3d at 1162 (footnote omitted); see also Barnes,
570 F.3d at 1100 (observing § 230(c)(1) “precludes
liability”). This limitation of liability had the dual purposes
of “promot[ing] the free exchange of information and ideas
over the Internet and . . . encourag[ing] voluntary monitoring
for offensive or obscene material.” Carafano, 339 F.3d 1122.
Because the focus of § 230(c)(1) is limiting liability, the
conduct relevant to the statute’s focus occurs at the location
associated with the imposition of liability. RJR Nabisco,
136 S. Ct. at 2101.
In other words, because § 230(c)(1) focuses on limiting
liability, the relevant conduct occurs where immunity is
imposed, which is where Congress intended the limitation of
liability to have an effect, rather than the place where the
claims principally arose. As such, the conduct relevant to
§ 230’s focus is entirely within the United States—i.e., at the
situs of this litigation. See Force, 934 F.3d at 74 (“The
regulated conduct—the litigation of civil claims in federal
courts—occurs entirely domestically in its application
here.”). We therefore conclude the Gonzalez Plaintiffs’
claims involve a domestic application of § 230.
GONZALEZ V. GOOGLE 29
C
The Gonzalez Plaintiffs also argue that § 230 immunity
does not shield liability arising from violations of the ATA
because § 230 was impliedly repealed. Specifically, they
contend that when Congress amended the ATA in 2016 by
enacting JASTA, it impliedly repealed § 230. In support of
this argument, the Gonzalez Plaintiffs rely on JASTA’s
statement of purpose, which explains that the aim of the
amendment was “to provide civil litigants with the broadest
possible basis, consistent with the Constitution of the United
States, to seek relief” for acts of international terrorism.
JASTA § 2(b) (emphasis added). As explained, JASTA
altered the ATA by adding, among other things, secondary
liability. See 18 U.S.C. § 2333(d). Despite its broad purpose,
JASTA did not impliedly repeal § 230.
“[A]bsent a clearly expressed congressional intention,
repeals by implication are not favored.” Branch v. Smith,
538 U.S. 254, 273 (2003) (internal quotation marks and
citations omitted). “An implied repeal will only be found
where provisions in two statutes are in ‘irreconcilable
conflict,’ or where the latter Act covers the whole subject of
the earlier one and ‘is clearly intended as a substitute.’” Id.(quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503
(1936)). “Irreconcilable conflict occurs if ‘there is a positive
repugnancy’ between competing provisions or if those
provisions cannot ‘mutually co-exist.’” King v. Blue Cross
& Blue Shield of Ill., 871 F.3d 730, 740 (9th Cir. 2017)
(quoting Radzanower v. Touche Ross & Co., 426 U.S. 148,
155 (1976)). “[W]hen two statutes are capable of co-
existence, it is the duty of the courts . . . to regard each as
effective.” Id. (alterations in original) (quoting Radzanower,
426 U.S. at 155).
30 GONZALEZ V. GOOGLE
To determine whether JASTA had any effect on the
application of § 230, we start by examining the statutory
language, and not—as the Gonzalez Plaintiffs
urge—JASTA’s statement of purpose. Preambles and
prefatory language are insufficient to alter the substance of
the phrases they precede, even when codified. See, e.g.,
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,
1978 (2016) (observing that the “clause announc[ing] an
objective . . . [did] not change the plain meaning of the
operative clause”). The Gonzalez Plaintiffs do not identify
any substantive provision of JASTA that conflicts with § 230.
As we have recognized, § 230 protects from liability only a
specific class of defendants facing a particular type of
claim—i.e., it protects providers and users of interactive
computer services from claims seeking to treat them as
publishers or speakers of information provided by others. See
Barnes, 570 F.3d at 1100–01; see also § 230(c)(1). Thus, by
its own terms, § 230 creates “an affirmative defense to
liability under Section 2333 [of the ATA] for only the narrow
set of defendants and conduct to which Section 230 applies.”
Force, 934 F.3d at 72. There is no provision of JASTA to the
contrary. JASTA expanded the scope of § 2333 liability for
acts of international terrorism, see 18 U.S.C. § 2333(d), but
it did not modify or repeal § 230 immunity, Force, 934 F.3d
at 72 (“JASTA merely expanded Section 2333’s cause of
action to secondary liability; it provides no obstacle . . . to
applying Section 230”).
Accordingly, JASTA and § 230(c)(1) can both be
enforced without contradicting the other, or depriving the
other of “any meaning at all.” Radzanower, 426 U.S. at 153(quoting T. Sedgwick, The Interpretation of Statutory and
Constitutional Law 98 (2d ed. 1874)). Courts have “not
hesitated to give effect to two statutes that overlap, so long as
GONZALEZ V. GOOGLE 31
each reaches some distinct cases.” J.E.M. Ag Supply, Inc. v.
Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144 (2001). Under
the Gonzalez Plaintiffs’ reading of JASTA, any liability-
imposing statute enacted after § 230 would have to be
construed to limit § 230 immunity. Such a reading runs
directly contrary to the presumption against finding implied
repeal. For these reasons, we conclude JASTA did not
impliedly repeal § 230.
D
Finally, the Gonzalez Plaintiffs argue that § 230 immunity
can never apply to ATA claims because the ATA permits
private civil enforcement of counter-terrorism provisions that
otherwise give rise to criminal liability, and § 230(e)(1)
includes an exception providing that “[n]othing in this section
shall be construed to impair the enforcement of . . . any . . .
Federal criminal statute.” 47 U.S.C. § 230(e)(1). Google
responds that the exception in § 230(e)(1) extends only to
criminal prosecutions, not to actions for civil damages like
this one. On this point, Google has the better argument.
Courts have consistently held that § 230(e)(1)’s limitation
on § 230 immunity extends only to criminal prosecutions, and
not to civil actions based on criminal statutes. For example,
the First Circuit concluded that a civil remedy provision in
the Trafficking Victims Protection Reauthorization Act,
which allowed victims to bring suit against perpetrators of
sex trafficking, did not fall within the § 230(e)(1) exception.
Doe v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. 2016).
The court principally relied on the meaning of the statutory
phrase “enforcement of . . . any . . . Federal criminal statute,”
which excludes civil statutes, but also reasoned that any
ambiguity in the subsection’s text was resolved by its title,
32 GONZALEZ V. GOOGLE
“[n]o effect on criminal law,” id. (alteration in original),
because this language “indicate[d] that the provision [was]
limited to criminal prosecutions,” id. The Second Circuit
recently agreed with this analysis when it considered the
application of § 230 to ATA claims. See Force, 934 F.3d
at 72 (“We . . . join the First Circuit in concluding that
Section 230(e)(1) is ‘quite clearly . . . limited to criminal
prosecutions.’” (second alteration in original) (quoting
Backpage.com, 817 F.3d at 23)). We agree with the First and
Second Circuits, and hold that § 230(e)(1) is limited to
criminal prosecutions. Accordingly, § 230(e)(1) does not
preclude the application of § 230(c)(1) immunity.
E
Having concluded that the Gonzalez Plaintiffs’ claims are
not categorically excluded from the reach of § 230 immunity,
we next consider the application of § 230 to the Gonzalez
TAC. The Gonzalez Plaintiffs argue that the immunity
afforded by § 230 does not bar their claims because § 230
immunizes only those who publish content created by third
parties, and their claims are directed to content created by
Google. Google responds that the content the TAC
challenges was indeed created by third parties—presumably,
ISIS—and that the Gonzalez Plaintiffs’ claims impermissibly
seek to treat Google as a publisher of that content. We affirm
the district court’s ruling that § 230 bars all of the TAC’s
claims except to the extent the TAC presents claims premised
on the allegation that Google shared advertising revenue with
ISIS.8
8
The Gonzalez Plaintiffs also argue that it was improper for the
district court to consider the application of § 230 on a motion to dismiss.
We disagree. “Whether a particular ground for opposing a claim may be
GONZALEZ V. GOOGLE 33
Section 230(c)(1) precludes liability for “(1) a provider or
user of an interactive computer service (2) whom a plaintiff
seeks to treat . . . as a publisher or speaker (3) of information
provided by another information content provider.”9 Barnes,
570 F.3d at 1100–01 (footnote omitted). We first address the
Gonzalez Plaintiffs’ theories of liability that are not directed
to revenue-sharing, considering each element of § 230
separately.
1
As to the first element of § 230, the parties do not dispute
that Google is an “interactive computer service” provider as
defined in 47 U.S.C. § 230(f)(2). We agree. Roommates,
521 F.3d at 1162 n.6 (“[T]he most common interactive
computer services are websites.”); see also Kimzey v. Yelp!,
Inc., 836 F.3d 1263, 1268 (9th Cir. 2016) (“Yelp is plainly a
provider of an ‘interactive computer service’ . . . , a term that
the basis for dismissal for failure to state a claim depends on whether the
allegations in the complaint suffice to establish that ground.” Jones v.
Bock, 549 U.S. 199, 215 (2007). Here, “the ‘allegations in the complaint
suffice to establish’ the defense,” and thus the “affirmative defense may
be considered properly.” Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th
Cir. 2013) (quoting Jones, 549 U.S. at 215); see also Ricci v. Teamsters
Union Local 456, 781 F.3d 25, 27 (2d Cir. 2015) (per curiam) (considering
whether § 230 immunity barred plaintiffs’ claims on a 12(b)(6) motion to
dismiss).
9
Barnes limited its summary of § 230(c)(1) eligibility requirements
to instances where “plaintiff[s] seeks to treat [the defendant], under a state
law cause of action, as a publisher or speaker” because that case only
concerned state law claims. 570 F.3d at 1100 (emphasis added). In
Roommates, we acknowledged that § 230 immunity is not limited to cases
in which plaintiffs assert state law claims. 521 F.3d at 1164; see also
Barnes, 570 F.3d at 1100 n.4.
34 GONZALEZ V. GOOGLE
we interpret expansively under the CDA.” (quotations and
alterations omitted)).
2
As to the second element, the Gonzalez Plaintiffs argue
their claims do not inherently require a court to treat Google
as a publisher or speaker. Google responds that the thrust of
the Gonzalez Plaintiffs’ claims is that Google did not do
enough to block or remove content, and that such claims
necessarily require the court to treat Google as a publisher.
On this point, we agree with Google.
What matters when we assess this element is “whether the
cause of action inherently requires the court to treat the
defendant as the ‘publisher or speaker’ of content provided by
another.” Barnes, 570 F.3d at 1102. This element is satisfied
when “the duty that the plaintiff alleges the defendant
violated derives from the defendant’s status or conduct as a
‘publisher or speaker.’” Id.The Gonzalez Plaintiffs argue that their claims do not
treat Google as a publisher, but instead assert a simple “duty
not to support terrorists.” They maintain that just as the ATA
prohibits a retailer like Wal-Mart “from supplying fertilizer,
knives, or even food to ISIS,” the ATA prohibits Google from
supplying ISIS with a communication platform. The
Gonzalez Plaintiffs’ characterization of their claim as
asserting a “duty not to support terrorists” overlooks that
publication itself is the form of support Google allegedly
provided to ISIS. See Force, 934 F.3d at 65 (recognizing that
supplying a platform and communication services “falls
within the heartland of what it means to be the ‘publisher’ of
information under Section 230(c)(1)”). The Plaintiffs’ non-
GONZALEZ V. GOOGLE 35
revenue sharing claims seek to impose liability for the content
Google allowed to be posted on its platform.
Publishing encompasses “any activity that can be boiled
down to deciding whether to exclude material that third
parties seek to post online . . . .” Roommates, 521 F.3d at1170–71. “[P]ublication involves reviewing, editing, and
deciding whether to publish or to withdraw from publication
third-party content.” Barnes, 570 F.3d at 1102; see also
Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir.
2014) (“[T]he very essence of publishing is making the
decision whether to print or retract a given piece of content
. . . .”). Here, the Gonzalez Plaintiffs assert that Google failed
to prevent ISIS from using its platform, and thereby allowed
ISIS to disseminate its message of terror. Because the non-
revenue sharing claims seek to impose liability for allowing
ISIS to place content on the YouTube platform, they seek to
treat Google as a publisher.
3
The Gonzalez Plaintiffs argue that Google does more than
merely republish content created by third parties; the TAC
alleges that Google “creat[es]” and “develop[s]” the ISIS
content that appears on YouTube, at least in part, and
therefore receives no protection under § 230. Again, we
disagree. This argument is precluded by this court’s § 230
precedents.
The Gonzalez Plaintiffs are correct that § 230 immunity
only applies to the extent interactive computer service
providers do not also provide the challenged information
content. Roommates, 521 F.3d at 1162–63; see also
Carafano, 339 F.3d at 1123. An “information content
36 GONZALEZ V. GOOGLE
provider” is defined as “any person or entity that is
responsible, in whole or in part, for the creation or
development of information provided through the Internet or
any other interactive computer service.” 47 U.S.C.
§ 230(f)(3) (emphasis added).
We have held that a website that “creat[es] or develop[s]”
content “by making a material contribution to [its] creation or
development” loses § 230 immunity. Kimzey, 836 F.3d
at 1269. A “material contribution” does not refer to “merely
. . . augmenting the content generally, but to materially
contributing to its alleged unlawfulness.” Roommates,
521 F.3d at 1167–68 (emphasis added). This test “draw[s]
the line at the ‘crucial distinction between, on the one hand,
taking actions” to display “actionable content and, on the
other hand, responsibility for what makes the displayed
content [itself] illegal or actionable.” Kimzey, 836 F.3d at
1269 n.4 (internal quotation marks omitted) (quoting Jones v.
Dirty World Ent. Recordings LLC, 755 F.3d 398, 413–14 (6th
Cir. 2014)). Other circuits have adopted this “material
contribution” test, acknowledging that making a material
contribution does not mean “merely taking action that is
necessary to the display of the allegedly illegal content,” but
rather, “being responsible for what makes the displayed
content allegedly unlawful.” Dirty World Ent., 755 F.3d
at 410; see also, e.g., FTC v. LeadClick Media, LLC, 838 F.3d
158, 176 (2d Cir. 2016); Klayman, 753 F.3d at 1358; Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
257–58 (4th Cir. 2009); FTC v. Accusearch Inc., 570 F.3d
1187, 1197–1201 (10th Cir. 2009). Absent this sort of
“material contribution,” Google does not qualify as an
GONZALEZ V. GOOGLE 37
“information content provider,” and may be eligible for § 230
immunity. See Kimzey, 836 F.3d at 1269–70.10
Plainly, an interactive computer service does not create or
develop content by merely providing the public with access
to its platform. A “website does not create or develop content
when it merely provides a neutral means by which third
parties can post information of their own independent
choosing online.” Kimzey, 836 F.3d at 1270 (quoting
Klayman, 753 F.3d at 1358). Thus, in Kimzey, we concluded
that a provider does not create or develop content when its
website “does ‘absolutely nothing to enhance the defamatory
sting of the message’ beyond the words offered by the [third-
party] user.” Id. (quoting Roommates, 521 F.3d at 1172).
The Gonzalez Plaintiffs concede that Google did not
initially create any ISIS videos, but allege that Google creates
the “mosaics” by which that content is delivered. According
to the Gonzalez TAC, Google makes a material contribution
to the unlawfulness of ISIS content by pairing it with selected
advertising and other videos because “pairing” enhances user
engagement with the underlying content. Our case law
forecloses the argument that this type of pairing vitiates § 230
immunity.
10
The Gonzalez Plaintiffs argue in passing that the district court erred
by “conflat[ing]” the definitions of “creation” and “development” in
§ 230(f)(3). According to the Gonzalez Plaintiffs, because Roommates
described its “material contribution” test in the context of construing
“development,” it “has nothing to do with the definition of ‘creation.’”
Whatever the distinction between creation and development, our case law
makes clear that an entity that does not materially contribute to the alleged
unlawfulness of the content is neither a creator nor a developer for
purposes of § 230(f)(3). See Kimzey, 836 F.3d at 1269–70.
38 GONZALEZ V. GOOGLE
In Roommates, we recognized that a website is not
transformed into a content creator or developer by virtue of
supplying “neutral tools” that deliver content in response to
user inputs. See 521 F.3d at 1171; see also id. at 1169;
Kimzey, 836 F.3d at 1270. Roommates relied on our earlier
decision in Carafano, which concerned a prankster’s
unauthorized creation of a libelous profile impersonating
actress Christianne Carafano on an online dating site.
Roommates, 521 F.3d at 1171; see also Carafano, 339 F.3d
at 1121–22. Carafano sued the online dating site for invasion
of privacy, misappropriation of the right of publicity,
defamation, and negligence. Carafano, 339 F.3d at 1121–22.
We determined that the dating website in Carafano
“provided neutral tools specifically designed to match
romantic partners depending on their voluntary inputs.”
Roommates, 521 F.3d at 1172. The website was not
transformed into the creator or developer of libelous content
contained in users’ dating profiles, even though its
matchmaking functionality allowed that content to be more
effectively disseminated. See id. Carafano held that the
dating website’s “decision to structure the information
provided by users [in order to] . . . offer additional features,
such as ‘matching’ profiles with similar characteristics” was
consistent with § 230 immunity. 339 F.3d at 1124–25. “[S]o
long as a third party willingly provides the essential published
content, the interactive [computer] service provider receives
full immunity regardless of the specific editing or selection
process.” Id. at 1124.
Critically, Carafano’s “neutral tools” were neutral
because the website did not “encourage the posting of
defamatory content” by merely providing a means for users
to publish the profiles they created. Roommates, 521 F.3d at
GONZALEZ V. GOOGLE 39
1171. “[I]ndeed, the defamatory posting was contrary to the
website’s express policies.” Id.In contrast, the defendant in Roommates operated a
website for matching renters with prospective tenants that did
contribute to the alleged illegality. Before users could search
listings or post housing opportunities, the website required
them to create profiles. Id. at 1161. To do so, users were
directed through a series of questions to disclose their sex,
sexual orientation, and whether they had children. Id. They
were also required to describe their preferred renter or tenant
with respect to these same three criteria, and encouraged to
“provide ‘Additional Comments’ describing themselves and
their desired roommate in an open-ended essay.” Id.The plaintiffs in Roommates alleged that the website
operator violated federal and state laws barring discrimination
in housing. Id. at 1162. The defendant website operator
argued that it was entitled to § 230 immunity. Id. Our en
banc court concluded the website—by requiring users to
disclose their sex, sexual orientation, whether they had
children, and the traits they preferred in their roommate—was
designed to encourage users to post content that violated fair
housing laws. Id. at 1161, 1164–66. “By requiring
subscribers to provide the information as a condition of
accessing its service,” and requiring subscribers to choose
between “a limited set of pre-populated answers” the website
became “much more than a passive transmitter,” and instead
became “the developer, at least in part, of that information.”
Id. at 1166. The Roommates website did not employ “neutral
tools”; it required users to input discriminatory content as a
prerequisite to accessing its tenant-landlord matching service.
See id. at 1169. The website therefore lost its § 230 immunity
with respect to the discriminatory content it prompted, but it
40 GONZALEZ V. GOOGLE
retained immunity for generically asking users to provide
“Additional Comments” without telling them “what kind of
information they should or must include.” Id. at 1174.
We recently revisited the scope of § 230 immunity in
Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093 (9th
Cir. 2019). There, an online messaging board called the
Experience Project allowed users to share first-person
experiences, post and answer questions, and interact with
other users about various topics. Id. at 1094. A user named
Wesley Greer posted an inquiry about opportunities to buy
heroin, and received a response from another user. Id. at
1095. A day after meeting up with the responder, Greer died
because the heroin he purchased had been laced with
fentanyl. Id. Greer’s mother filed suit against the website
operator, and the website moved to dismiss based on § 230
immunity. Id. at 1095–96.
The plaintiff in Dyroff argued that the website created and
developed online content because the website “used features
and functions, including algorithms, to analyze user posts . . .
and recommend other user groups.” Id. at 1098. We
concluded “[t]hese functions—recommendations and
notifications—[were] tools meant to facilitate the
communication and content of others,” and “not content in
and of themselves.” Id. The message board in Dyroff
employed neutral tools similar to the ones challenged by the
Gonzalez Plaintiffs. Though we accept as true the TAC’s
allegation that Google’s algorithms recommend ISIS content
to users, the algorithms do not treat ISIS-created content
differently than any other third-party created content, and
thus are entitled to § 230 immunity. Id.; see also Roommates,
521 F.3d at 1171–72; Carafano, 339 F.3d at 1124.
GONZALEZ V. GOOGLE 41
We conclude the TAC does not allege that Google’s
YouTube service is materially distinguishable from the
matchmaking website at issue in Carafano or the algorithms
employed by the message board in Dyroff. It alleges that
Google recommends content—including ISIS videos—to
users based upon users’ viewing history and what is known
about the users. The Gonzalez Plaintiffs allege that Google
similarly targets users for advertising based on the content
they have selected and other information about users. In this
way, a user’s voluntary actions inform Google about that
user’s preferences for the types of videos and advertisements
the user would like to see. Rather than suggesting matches
for dating, Google matches what it knows about users based
on their historical actions and sends third-party content to
users that Google anticipates they will prefer. This system is
certainly more sophisticated than a traditional search engine,
which requires users to type in textual queries, but the core
principle is the same: Google’s algorithms select the
particular content provided to a user based on that user’s
inputs. See Roommates, 521 F.3d at 1175 (observing that
search engines are immune under § 230 because they provide
content in response to a user’s queries “with no direct
encouragement to perform illegal searches or to publish
illegal content”).
The Gonzalez complaint is devoid of any allegations that
Google specifically targeted ISIS content, or designed its
website to encourage videos that further the terrorist group’s
mission. Instead, the Gonzalez Plaintiffs’ allegations suggest
that Google provided a neutral platform that did not specify
or prompt the type of content to be submitted, nor determine
particular types of content its algorithms would promote. The
Gonzalez Plaintiffs concede Google’s policies expressly
prohibited the content at issue. See id. at 1171. Accordingly,
42 GONZALEZ V. GOOGLE
the type of algorithm challenged here, without more, is
indistinguishable from the one in Dyroff and it does not
deprive Google of § 230 immunity.
We are not alone in reaching this conclusion. In a case
involving allegations that Facebook unlawfully provided a
communications platform to Hamas in violation of the ATA,
the Second Circuit concluded that Facebook was entitled to
§ 230 immunity. Force, 934 F.3d at 64–72. The plaintiffs in
Force, surviving family members of victims allegedly
murdered by Hamas, sought to treat Facebook as a publisher
of third-party information, even where “it use[d] tools such as
algorithms that [were] designed to match that [third-party]
information with a consumer’s interests.” Id. at 66. The
Second Circuit recognized that Facebook’s algorithms may
have made content more visible or available, but held this did
not amount to developing the underlying information. Id. at
70. Force further observed that since the early days of the
Internet, websites “have always decided . . . where on their
sites . . . particular third-party content should reside and to
whom it should be shown” but no case law denies § 230
immunity “because of the ‘matchmaking’ results of such
editorial decisions.” Id. at 66–67. Our precedent requires
that we reach the same outcome and we hold, consistent with
our case law, that Google is entitled to § 230 immunity with
respect to the Gonzalez Plaintiffs’ theories of liability that are
not directed to revenue-sharing.
Our dissenting colleague argues § 230 should not
immunize Google from liability for the claims related to its
algorithms, which the dissent characterizes as amplifying and
contributing to ISIS’s originally posted content. The dissent
shares the views expressed by the partial concurrence and
GONZALEZ V. GOOGLE 43
dissent in Force. 934 F.3d at 76–89 (Katzmann, C.J.,
concurring in part, dissenting in part).
As explained, Force also arose from terrorist attacks. The
Force plaintiffs alleged that “Facebook collect[ed] detailed
information about its users” and Facebook’s algorithms
“utilize[d] the collected data to suggest friends, groups,
products, services and local events, and [to] target ads based
on each user’s input.” Id. at 82 (internal quotation marks
omitted).
For two reasons, the partial dissent in Force argued that
Facebook’s friend- and content-suggestion algorithms created
new content, and thus Facebook was not entitled to § 230
immunity. Id. First, the partial dissent reasoned that
Facebook’s algorithms communicated their own
message—i.e., the algorithms suggested the user would likely
be interested in certain additional content. Id. Second,
Facebook’s friend- and content-suggestion algorithms created
and maintained “real-world social networks.” Id.
Citing our circuit’s decision in Roommates, the partial
dissent in Force reasoned that suggestions generated by
Facebook’s algorithms based on users’ shared interest in
terrorism “directly related to the alleged illegality of the site,”
and therefore Facebook went beyond the role of a mere
publisher. Id. at 82–83. Respectfully, this is not a correct
reading of Roommates. The Roommates website required
users to identify themselves by sex, sexual orientation, and
whether they had children, then directed users to describe
their preferred tenant or landlord using pre-populated answers
concerning the same criteria. 521 F.3d at 1161, 1169–70. In
this way, the website prompted discriminatory responses that
violated fair housing laws. Id. at 1169–70. Because the
44 GONZALEZ V. GOOGLE
website itself generated the options for selecting a tenant or
landlord based on discriminatory criteria, our en banc court
concluded the website materially contributed to the
unlawfulness of the posted content. Id.As we have explained, Google’s algorithms function like
traditional search engines that select particular content for
users based on user inputs. See Roommates, 521 F.3d at 1175(observing search engines are entitled to § 230 immunity
because they provide content in response to users’ inquires
“with no direct encouragement to perform illegal searches or
to publish illegal content”). The TAC does not allege that
Google’s algorithms prompted ISIS to post unlawful content.
Nor does the TAC allege that Google’s algorithms treated
ISIS-created content differently than any other third-party
created content. See id. at 1171–72. Contrary to the dissent’s
assertion, we do not hold that “machine-learning algorithms
can never produce content within the meaning of Section
230.” We only reiterate that a website’s use of content-
neutral algorithms, without more, does not expose it to
liability for content posted by a third-party. Under our
existing case law, § 230 requires this result.
The dissent concedes algorithms can be neutral, but it
argues § 230 immunity should not apply when the published
“message itself is the danger.” But this is not where Congress
drew the line. At the time Congress enacted § 230, many
considered it “impossible for service providers to screen each
of their millions of postings for possible problems.”
Carafano, 339 F.3d at 1124 (emphasis added) (quoting
Zeran, 129 F.3d at 330–31). Against this backdrop, Congress
did not differentiate dangerous, criminal, or obscene content
from innocuous content when it drafted § 230(c)(1). Instead,
it broadly mandated that “[n]o provider . . . of an interactive
GONZALEZ V. GOOGLE 45
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).
We share the dissent’s concerns about the breadth of
§ 230. As the dissent observes, “there is a rising chorus of
judicial voices cautioning against an overbroad reading of the
scope of Section 230 immunity,” and the feasibility of
screening for dangerous content is being revisited. For
example, websites are leveraging new technologies to detect,
flag, and remove large volumes of criminal content such as
child pornography.11 In light of the demonstrated ability to
detect and isolate at least some dangerous content, Congress
may well decide that more regulation is needed. In the
meantime, our decision does not extend what the dissent
rightly describes as § 230’s sweeping scope.
11
According to the Department of Justice, “the vast majority of
[National Center for Missing & Exploited Children (NCMEC)] reports
come from direct messaging services and are usually generated as a result
of platforms’ use of automated hashing measures (such as PhotoDNA),
grooming indicators, artificial intelligence and other technologies to
identify and report child sexual abuse material.” DOJ Office of Public
Affairs, Acting AG and Five Country Statement on the Temporary
Derogation to the ePrivacy Directive to Combat Child Sexual Exploitation
and Abuse, United States Department of Justice (Jan. 12, 2021),
https://www.justice.gov/opa/pr/acting-ag-and-five-country-statement-te
mporary-derogation-eprivacy-directive-combat-child. Facebook reports
that “[i]n addition to photo-matching technology, [Facebook is] using
artificial intelligence and machine learning to proactively detect child
nudity and previously unknown child exploitative content when it’s
uploaded” and to report it to NCMEC. See Antigone Davis, New
Technology to Fight Child Exploitation, Facebook (Oct. 24, 2018),
https://about.fb.com/news/2018/10/fighting-child-exploitation.
46 GONZALEZ V. GOOGLE
In his partial concurrence and partial dissent in Force,
Chief Judge Katzmann provided a thorough analysis of
§ 230’s legislative history. Force, 934 F.3d at 77–80
(Katzmann, C.J., concurring in part and dissenting in part).
The Force partial dissent persuasively explains that when it
enacted § 230, “Congress was focused squarely on protecting
minors from offensive online material” and sought to
“provide[] ‘Good Samaritan’ protections from civil liability
for providers or users of an interactive computer service.” Id.
at 79–80 (quoting S. Rep. No. 104-230, at 194 (1996) (Conf.
Rep.)). Despite this clear goal, the language Congress
adopted in § 230(c)(1) cuts a much wider swath. Id.
(“Whatever prototypical situation its drafters may have had
in mind, § 230(c)(1) does not limit its protection to situations
involving ‘obscene material’ provided by others, instead
using the expansive word ‘information.’”). Chief Judge
Katzmann urged his colleagues to conclude § 230(c)(1) need
not be interpreted to immunize websites’ friend- and content-
suggestion algorithms, but as we explain, Ninth Circuit case
law forecloses his argument.
In sum, though we agree the Internet has grown into a
sophisticated and powerful global engine the drafters of § 230
could not have foreseen, the decision we reach is dictated by
the fact that we are not writing on a blank slate. Congress
affirmatively immunized interactive computer service
providers that publish the speech or content of others. 12
12
The dissent would create a new federal common law cause of action
treating social media companies as makers and sellers of products through
forced advertising, thereby circumventing § 230’s expansive immunity.
Even if we agree Congress should act to narrow the scope of § 230
immunity or regulate the use of neutral algorithms, we are not free to
manufacture entirely new causes of action merely because the political
branches have not acted. The Supreme Court has explained “[t]he vesting
GONZALEZ V. GOOGLE 47
F
The Gonzalez Plaintiffs’ revenue-sharing theory is
distinct from the other theories of liability raised in the TAC.
This theory is premised on the allegation that because it
shared advertising revenue with ISIS, Google should be held
directly liable for providing material support to ISIS pursuant
to § 2333(a) and secondarily liable for providing substantial
assistance to ISIS pursuant to § 2333(d). The district court’s
order excluded the Gonzalez Plaintiffs’ revenue-sharing
claims from its application of § 230. On appeal, Google does
not separately respond to the Gonzalez Plaintiffs’ revenue-
sharing claims. Instead, Google lumps all of the TAC’s
theories together for purposes of its § 230 argument. Based
on our review of case law, the question whether § 230
immunizes an interactive computer service provider’s
revenue-sharing payments appears to be one of first
impression for the courts of appeal. We conclude that § 230
does not immunize Google from the claims premised on
revenue-sharing.
Plaintiffs allege that Google generates revenue by selling
advertising space through its AdSense program, including
advertising space that appears on YouTube. Through
AdSense, Google sells advertising opportunities and displays
advertisements to YouTube viewers accessing other content.
Google targets advertisements based on the content of the
of jurisdiction in the federal courts does not in and of itself give rise to
authority to formulate federal common law . . . nor does the existence of
congressional authority under Art. I mean that federal courts are free to
develop a common law to govern those areas until Congress acts.” Texas
Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–41 (1981)
(internal citation omitted).
48 GONZALEZ V. GOOGLE
advertisements, what is known about the viewer, and the
content of the posted video. If a YouTube user elects to
participate in the AdSense program, Google shares with the
user a portion of the revenue generated by the advertisements
on the user’s videos. For example, suppose a user
participating in the AdSense program posts a video tutorial
about proper house-painting techniques. In this scenario,
viewers of the video tutorial might see advertisements for
paint or paintbrushes, and Google would share a portion of
the resulting ad revenue with the user that posted the video
tutorial.
The Gonzalez Plaintiffs allege that “each YouTube video
must be reviewed and approved by Google before Google
will permit advertisements to be placed with that video,” and
that “Google has reviewed and approved ISIS videos” for
advertising. The Gonzalez Plaintiffs also allege that, because
it approved ISIS videos for the AdSense program, Google
shared a percentage of revenues generated from those
advertisements with ISIS.
We have explained that § 230 grants immunity from
claims seeking to hold providers of interactive computer
services liable as publishers or speakers of third-party
content. The Gonzalez Plaintiffs’ revenue-sharing allegations
are not directed to the publication of third-party information.
These allegations are premised on Google providing ISIS
with material support by giving ISIS money. Thus, unlike the
Gonzalez Plaintiffs’ other allegations, the revenue-sharing
theory does not depend on the particular content ISIS places
on YouTube; this theory is solely directed to Google’s
unlawful payments of money to ISIS.
GONZALEZ V. GOOGLE 49
It is well settled that § 230 “bars only liability that treats
a website as a publisher or speaker of content provided by
somebody else.” Internet Brands, 824 F.3d at 851. Perhaps
the best indication that the Gonzalez Plaintiffs’ revenue-
sharing allegations are not directed to any third-party content
is that Google’s alleged violation of the ATA could be
remedied without changing any of the content posted by
YouTube’s users. See id.; see also HomeAway.com, Inc. v.
City of Santa Monica, 918 F.3d 676, 683 (9th Cir. 2019)
(concluding that a city ordinance that did “not proscribe,
mandate, or even discuss the content of the listings that the
[plaintiffs] display[ed] on their websites” fell outside the
scope of immunity provided by § 230). The Gonzalez
Plaintiffs’ allegations of revenue-sharing do not seek to hold
Google liable for any content provided by a third-party.
Accordingly, we conclude that § 230 does not bar the
Gonzalez Plaintiffs’ claims premised on sharing revenue with
ISIS.13
IV
Having concluded that § 230 only immunizes Google
from liability for all of the Gonzalez Plaintiffs’ non-revenue
sharing claims, we next address whether, based on the TAC’s
revenue-sharing theory, the Gonzalez Plaintiffs’ adequately
allege claims for direct liability and secondary liability under
the ATA. We address the direct liability claims first.
13
The district court dismissed the revenue-sharing claims without
prejudice for failure to adequately allege proximate cause. The Gonzalez
Plaintiffs chose not to amend, and a final judgment was subsequently
entered on that basis.
50 GONZALEZ V. GOOGLE
The civil remedies provision of the ATA, 18 U.S.C.
§ 2333(a), “allows any United States national ‘injured in his
or her person, property, or business by reason of an act of
international terrorism, or his or her estate, survivors or
heirs,’ to sue in federal court and recover treble damages and
attorney’s fees.” Fields, 881 F.3d at 743 (quoting § 2333(a)).
It is undisputed that the Gonzalez Plaintiffs, Taamneh
Plaintiffs, and Clayborn Plaintiffs are United States nationals.
The ATA includes several criminal provisions, “the
violation of which can provide the basis for a cause of action
under § 2333(a).” Id. The Gonzalez Plaintiffs argue that
Google directly committed acts of international terrorism by
providing material support for terrorism, providing material
support for foreign terrorist organizations, and financing
terrorism in violation of sections 2339A(a), 2339B(a)(1), and
2339C(c), respectively. They also allege that Google violated
Executive Order No. 13224, 31 C.F.R. Part 594, and
50 U.S.C. § 1705.
Section 2333(a) is directed to “act[s] of international
terrorism.” “[I]nternational terrorism” is statutorily defined
in 18 U.S.C. § 2331(1). See generally Fields, 881 F.3d at 743
n.3; Linde v. Arab Bank, PLC, 882 F.3d 314, 326–27 (2d Cir.
2018). Acts constituting international terrorism must “appear
to be intended—(i) to intimidate or coerce a civilian
population; (ii) to influence the policy of a government by
intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or
kidnapping.” Id. § 2331(1)(B).
The operative Gonzalez complaint contends that Google’s
conduct qualified as an act of “international terrorism,” citing
§ 2331(1). We conclude their complaint fails to plausibly
GONZALEZ V. GOOGLE 51
allege that Google directly perpetrated an act of international
terrorism as required by § 2331(1)(B).
Whether an act appears to be intended to intimidate or
coerce a civilian population or to influence or affect a
government, “does not depend on the actor’s beliefs, but
imposes on the actor an objective standard to recognize the
apparent intentions of actions.” Weiss v. Nat’l Westminster
Bank PLC, 768 F.3d 202, 207 n.6 (2d Cir. 2014); see also
Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685,
694 (7th Cir. 2008) (en banc) (“[I]t is a matter of external
appearance rather than subjective intent, which is internal to
the intender.”).
The Gonzalez Plaintiffs argue that the knowing provision
of resources to a terrorist organization necessarily constitutes
“international terrorism,” and satisfies the requirements
identified in § 2331(1)(B). We disagree. Nothing in the
statutory scheme suggests that material support always
qualifies as international terrorism because such conduct may
or may not objectively appear to be intended to intimidate or
coerce. Medical assistance rendered to known terrorists by
Doctors Without Borders illustrates this point. See Boim,
549 F.3d at 699. Such assistance might arguably provide
material support to terrorists in violation of § 2339B, but it
would not appear to be intended to intimidate or coerce a
civilian population, or to affect the conduct of a government.
See id. To qualify as international terrorism, the defendant’s
acts must satisfy each of the criteria contained in § 2331(1),
Linde, 882 F.3d at 325–26; see also Fields, 881 F.3d at 743
n.3, and “the provision of material support to a terrorist
organization does not invariably equate to an act of
international terrorism,” Linde, 882 F.3d at 326.
52 GONZALEZ V. GOOGLE
The Gonzalez Plaintiffs rely heavily on the Seventh
Circuit’s en banc decision in Boim, but that reliance is
misplaced. The issue in Boim was whether defendants who
had donated money to Hamas and Hamas-affiliated
charities—knowing that Hamas used its resources to finance
the killing of Israeli Jews—could be held liable under the
ATA for Hamas’s 1994 murder of an American teenager in
Israel. Boim, 549 F.3d at 688–690. The en banc court stated
that a knowing donor’s contributions to Hamas would satisfy
the definitional requirements of “international terrorism” set
forth in § 2331(1). Id. at 690, 694. Boim reasoned that
“donations to Hamas . . . would enable Hamas to kill or
wound, or try to kill” more people in Israel. Id. at 694. The
Seventh Circuit concluded that such donations would appear
to be intended to intimidate or coerce a civilian population
because of the foreseeability of these consequences.14 Id.
The Gonzalez Plaintiffs’ reliance on Boim is misplaced
because the allegations here are not at all similar to those in
Boim, which involved voluntary donations specifically and
purposefully directed to a foreign terrorist organization.
Taking as true the allegation that Google shared
advertising revenue with ISIS as part of its AdSense program,
that action does not permit the inference that Google’s actions
objectively appear to have been intended to intimidate or
coerce civilians, or to influence or affect governments. The
Seventh Circuit’s decision in Kemper v. Deutsche Bank AG,
911 F.3d 383 (7th Cir. 2018), illustrates this point. There, the
court concluded that the plaintiff failed to plausibly allege
14
We express no view on whether Boim would be decided the same
way today. Notably, that decision was issued before Congress enacted
JASTA, thereby creating secondary liability for aiding and abetting acts
of international terrorism. See 18 U.S.C. § 2333(d)(2).
GONZALEZ V. GOOGLE 53
that Deutsche Bank’s institution of procedures to evade U.S.
sanctions and facilitate Iranian banking transactions qualified
as international terrorism. Id. at 390. The court reasoned that
Deutsche Bank’s actions did “not appear intended to
intimidate or coerce any civilian population or government”
because, “[t]o the objective observer, its interactions with
Iranian entities were motivated by economics.” Id.Similarly here, the Gonzalez Plaintiffs did not allege that
Google’s actions were motivated by anything other than
economic self-enrichment. The TAC alleges that Google is
a commercial service in the business of selling advertising,
and that “Google uses the AdSense monetization program to
earn revenue, and as an incentive to encourage users to post
videos on YouTube.” These allegations are easily
distinguished from those involving donations to a known
terrorist organization. See Boim, 549 F.3d at 690, 694. The
Gonzalez Plaintiffs did not allege that Google shared ISIS’s
vision and objectives, nor that Google intended ISIS to
succeed in any future acts of terrorism. Rather, the
complaint’s allegations suggest that Google split ad revenue
with ISIS in furtherance of its own financial best interest.
The TAC fails to allege that Google’s provision of
material support appeared to be intended to intimidate or
coerce a civilian population, or to influence or affect a
government as required by the ATA. See 18 U.S.C.
§ 2331(1)(B). For this reason, the Gonzalez complaint does
not adequately allege the requirements necessary to establish
direct liability for an act of international terrorism pursuant to
§ 2333(a), and we need not reach whether the Gonzalez
Plaintiffs sufficiently alleged that Google’s actions
proximately caused Nohemi Gonzalez’s death.
54 GONZALEZ V. GOOGLE
V
Turning to the Gonzalez Plaintiffs’ secondary liability
claims based on revenue-sharing, Google argues that the
Gonzalez complaint fails to state a claim for secondary
liability pursuant to 18 U.S.C. § 2333(d)(2). We agree.15
As originally enacted, the ATA allowed only claims
alleging direct liability against the perpetrators of acts of
international terrorism. Rothstein, 708 F.3d at 97; see also
Linde, 882 F.3d at 319–20. In 2016, Congress amended the
ATA by enacting JASTA, which extends civil liability to
persons who aid and abet by providing substantial assistance
to persons who commit acts of international terrorism, and to
those who conspire to commit such acts. 18 U.S.C.
§ 2333(d)(2). Secondary liability for aiding or abetting acts
of terrorism applies only when the principal act of
international terrorism is “committed, planned, or authorized
by an organization . . . designated as a foreign terrorist
organization.” Id.The Gonzalez Plaintiffs raise claims for both aiding-and-
abetting and conspiracy liability. We address these theories
separately.
15
The district court concluded that the Gonzalez Plaintiffs advanced
a revenue-sharing theory only with respect to their claims for direct
liability. We find the TAC somewhat ambiguous on this point, but
assume for purposes of deciding this appeal that the Gonzalez Plaintiffs
raised a revenue-sharing theory with respect to both their direct liability
and secondary liability claims.
GONZALEZ V. GOOGLE 55
A
Under § 2333(d)(2) of the ATA, “liability may be asserted
as to any person who aids and abets, by knowingly providing
substantial assistance” to “the person who committed . . . an
act of international terrorism” as set forth in § 2333(a).
18 U.S.C. § 2333(d)(2). JASTA specifies that the D.C.
Circuit’s decision in Halberstam v. Welch, 705 F.2d 472(D.C. Cir. 1983), describes “the proper legal framework” for
assessing aiding-and-abetting liability under § 2333(d). Pub.
L. No. 144-222, § 2(a)(5), 130 Stat. at 852; see also Siegel v.
HSBC N. Am. Holdings, Inc., 933 F.3d 217, 223 (2d Cir.
2019).
Halberstam addressed the scope of secondary liability for
common law causes of action. See 705 F.2d at 474. The
plaintiff, Elliott Halberstam, was the widow of Michael
Halberstam. Id. Michael Halberstam was a physician killed
by Bernard Welch during the course of a burglary. Id.Halberstam’s widow brought a wrongful death action against
Linda Hamilton, Welch’s live-in girlfriend, alleging that
Hamilton was civilly liable for Michael Halberstam’s death,
both as an aider-abettor and a co-conspirator. Id. at 474–76.
Hamilton provided assistance to Welch during the course of
his multi-year campaign of burglaries, including preparing
letters of sale for stolen goods, falsifying tax returns to
conceal income derived from stolen goods, maintaining
accounts on Welch’s behalf, and handling financial
transactions. Id. at 475, 486, 488. The D.C. Circuit
ultimately concluded that Hamilton was civilly liable for
Halberstam’s death, even though Welch killed Halberstam
during a robbery and Hamilton was not present. The court
concluded that Hamilton was liable under a conspiracy theory
and also an aiding-and-abetting theory. Id. at 489.
56 GONZALEZ V. GOOGLE
The scenario presented in Halberstam is, to put it mildly,
dissimilar to the one at issue here. But Congress selected
Halberstam as the governing standard for secondary liability
ATA claims because Halberstam “has been widely
recognized as the leading case regarding Federal civil aiding
and abetting . . . liability.” Pub. L. No. 144-222, § 2(a)(5),
130 Stat. at 852.
In Halberstam, the D.C. Circuit identified three elements
that a plaintiff must prove in order to establish aiding-and-
abetting liability: “(1) the party whom the defendant aids
must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role as part of an
overall illegal or tortious activity at the time that he provides
the assistance; [and] (3) the defendant must knowingly and
substantially assist the principal violation.” 705 F.2d at 477.
1
The first element of aiding and abetting liability requires
a showing that the party the defendant aided committed an act
of international terrorism that injured the plaintiff. 18 U.S.C.
§ 2333(d)(2); Halberstam, 705 F.2d at 477; see also Siegel,
933 F.3d at 223.16 The parties dispute whether the relevant
principal actor is the ISIS organization as a whole or the
individual terrorists who perpetrated the Paris Attacks. We
agree with the Gonzalez Plaintiffs that ISIS is the relevant
16
As noted, the ATA’s secondary liability provision only applies
where a designated “foreign terrorist organization” “committed, planned,
or authorized” the act of international terrorism. § 2333(d)(2). The parties
do not dispute that the Paris Attacks were an act of international terrorism,
nor do they dispute that the killing of Nohemi Gonzalez during the Paris
Attacks was an injury to the Gonzalez Plaintiffs.
GONZALEZ V. GOOGLE 57
“person who committed . . . an act of international terrorism.”
18 U.S.C. § 2333(d)(2).
The TAC alleges that coordinated teams of ISIS terrorists
planned and carried out the Paris Attacks. Specifically, it
alleges that the café shooters who murdered Nohemi
Gonzalez—Abaaoud, Abdeslam, and Akrouh—were
members of ISIS. The Gonzalez Plaintiffs further allege that
Abaaoud, the operational leader of the Paris Attacks, traveled
to Syria to join ISIS in March 2013, joined ISIS while in
Syria, and publicly declared his affiliation with ISIS. We
accept as true the allegations that, in 2014, Abaaoud posted
a link on his Facebook profile to an ISIS recruiting video in
which he described his life and role with ISIS, and, that in
2015, ISIS’s English-language magazine, Dabiq, featured an
interview with Abaaoud. These allegations distinguish the
TAC from the claims presented in Crosby v. Twitter, Inc.,
where the Sixth Circuit rejected the plaintiffs’ ATA claims
because the complaint contained “no allegations that ISIS was
involved with the Pulse Night Club shooting” perpetrated by
Omar Mateen. 921 F.3d 617, 626 (6th Cir. 2019); see also
18 U.S.C. § 2333(d)(2). We conclude the Gonzalez Plaintiffs
satisfied the first element of aiding-and-abetting liability
because the TAC plausibly alleged that ISIS, a designated
terrorist organization, “committed, planned, or authorized”
the Paris Attacks.
2
The second element of aiding-and-abetting liability
requires a showing that Google was generally aware of its
role in ISIS’s terrorist activities at the time it provided
assistance to ISIS. 18 U.S.C. § 2333(d)(2); Halberstam,
58 GONZALEZ V. GOOGLE
705 F.2d at 477; see also Linde, 882 F.3d at 329. The
Gonzalez Plaintiffs also satisfied this element.
Just as the Halberstam court concluded that Linda
Hamilton was generally aware of her role in Bernard Welch’s
ongoing burglary operation because she “knew about and
acted to support” it, the Gonzalez Plaintiffs must plausibly
allege that, by sharing revenue with ISIS, Google was aware
that it was assuming a role in ISIS’s terrorist activities. See
Halberstam, 705 F.2d at 488; see also Linde, 882 F.3d at 329
(requiring a showing that “the bank was ‘generally aware’
that [by providing financial services,] it was thereby playing
a ‘role’ in Hamas’s violent or life-endangering activities”
(quoting Halberstam, 705 F.2d at 477)). Notably, this
element does not require a showing of “the specific intent
demanded for criminal aiding and abetting culpability,” i.e.,
an “intent to participate in a criminal scheme as ‘something
that he wishes to bring about and seek by his action to make
it succeed.’” Linde, 882 F.3d at 329 (quoting Rosemond v.
United States, 572 U.S. 65, 76 (2014)). Nor does it require
that Google “knew of the specific attacks at issue.” Id.The TAC adequately alleges that Google was aware of the
role it played in ISIS’s terrorist activities. Specifically, the
Gonzalez Plaintiffs allege that Google knowingly shared
advertising revenue with ISIS and that Google did so despite
numerous reports from news organizations that Google
placed advertisements on ISIS videos. Under these
circumstances, the allegation that Google knowingly gave
“fungible dollars to a terrorist organization” plausibly alleges
that Google was aware of the role it played in activities that
“may be ‘dangerous to human life.’” Cf. Kemper, 911 F.3d
at 390; see also Fields, 881 F.3d at 748; Boim, 549 F.3d
at 693.
GONZALEZ V. GOOGLE 59
We are mindful that “aiding and abetting an act of
international terrorism requires more than the provision of
material support to a designated terrorist organization.”
Linde, 882 F.3d at 329. Thus, the mens rea required for the
general awareness element of secondary liability under
§ 2333(d) may not be coextensive with the showing required
for material support under § 2339B. The latter “requires only
knowledge of the organization’s connection to terrorism, not
intent to further its terrorist activities or awareness that one is
playing a role in those activities.” See id. at 330 (citing
Holder, 561 U.S. at 16–17); see also, e.g., Siegel, 933 F.3d
at 224 (concluding plaintiffs failed to plead general awareness
with allegations “suggest[ing] that in providing banking
services to [a Saudi Arabian bank], HSBC had little reason to
suspect that it was assuming a role in [al-Qaeda in Iraq’s]
terrorist activities”). But here, we are satisfied that the
allegations indicating Google knowingly contributed money
to ISIS suffice to show that Google understood it played a
role in the violent and life-endangering activities undertaken
by ISIS, and therefore establish the second element of aiding-
and-abetting liability for purposes of § 2333(d)(2).
3
The third element of aiding-and-abetting liability requires
that the plaintiff show the defendant knowingly and
substantially assisted the act of terrorism that injured the
plaintiff. 18 U.S.C. § 2333(d)(2); see also Halberstam,
705 F.2d at 488 (holding the defendant must have “knowingly
and substantially assist[ed] the principal violation”). This
element contains two components: (1) “knowing[]”
assistance, and (2) “substantial[]” assistance. See
Halberstam, 705 F.2d at 477; see also id. at 488 (evaluating
whether Linda Hamilton assisted Bernard Welch “with
60 GONZALEZ V. GOOGLE
knowledge that he had engaged in illegal acquisition of
goods” separate from considering whether her “assistance
was ‘substantial’”).
The Halberstam court identified six factors relevant to
assessing whether the substantial assistance component is
satisfied: “(1) the nature of the act encouraged, (2) the
amount of assistance given by defendant, (3) defendant’s
presence or absence at the time of the tort, (4) defendant’s
relation to the principal, (5) defendant’s state of mind, and
(6) the period of defendant’s assistance.” Linde, 882 F.3d
at 329 (citing Halberstam, 705 F.2d at 483–84).17
The parties dispute whether the relevant “principal
violation” for analyzing the third element is ISIS’s broader
campaign of terrorism or the Paris Attacks. See Halberstam,
705 F.2d at 488. But Halberstam explained that the extent of
liability under aiding-and-abetting encompasses
foreseeability, such that a defendant “who assists a tortious
act may be liable for other reasonably foreseeable acts done
in connection with it.” 705 F.2d at 484. For example, the
common law cases Halberstam drew upon established that a
thirteen-year-old boy who broke into a church with some
17
In dicta, the Second Circuit suggested that these factors determine
“whether the defendant’s assistance was sufficiently knowing and
substantial to qualify as aiding and abetting.” Linde, 882 F.3d at 329 n.10
(emphasis added). However, Halberstam appears to treat “knowing”
assistance as an inquiry separate from “substantial” assistance. See
Halberstam, 705 F.2d at 478 (explaining that the listed factors aid “in
making th[e] determination” of “how much encouragement or assistance
is substantial enough” (emphasis added)). Indeed, the Halberstam court
explicitly acknowledged that “the scienter requirement in the third element
of aiding-abetting” requires that “an aider-abettor must knowingly assist
the underlying violation.” See id. at 485 n.14.
GONZALEZ V. GOOGLE 61
companions could be held liable for damage to the church
caused by his companions’ failure to extinguish torches they
used to light their way in the church attic. Id. at 482–83
(citing Am. Family Mut. Ins. Co. v. Grim, 440 P.2d 621,
625–26 (Kan. 1968)). Because the need for lighting could
have been anticipated, “the boy who had not used a torch, nor
even expected one to be lighted, could be liable for the
damage caused by the torches.” Id. at 483. By contrast, the
Halberstam court cited an example from the Restatement
(Second) of Torts where liability was not imposed: if A
supplies wire cutters to B to allow B to unlawfully enter the
land of C to recapture chattels belonging to B, and B
intentionally sets fire to C’s house in the course of his
trespass, A is not liable for the destroying the house. Id. at
483 n.12 (quoting Restatement (Second) of Torts § 876, cmt.
d (1976)).
Halberstam concluded that Linda Hamilton was liable for
Welch killing Michael Halberstam because of the nature and
extent of her assistance to Welch’s illegal burglary enterprise.
Id. at 488. In the court’s view, the killing “was a natural and
foreseeable consequence of the activity Hamilton helped
Welch to undertake.” Id. “[W]hen she assisted him, it was
enough that she knew he was involved in some type of
personal property crime at night—whether as a fence, burglar,
or armed robber made no difference—because violence and
killing is a foreseeable risk in any of these enterprises.” Id.
We have little difficulty concluding that the Paris Attacks
were a foreseeable result of ISIS’s broader campaign of
terrorism. Accordingly, when assessing whether the TAC
satisfies the third element of aiding-and-abetting liability, we
consider ISIS’s broader campaign of terrorism to be the
relevant “principal violation.”
62 GONZALEZ V. GOOGLE
Pursuant to § 2333(d)(2), liability attaches to an aider-
abettor who “knowingly provid[es] substantial assistance.”
18 U.S.C. § 2333(d)(2) (emphasis added). Thus, a plaintiff
must show that the defendant “knowingly gave ‘substantial
assistance’ to someone who performed wrongful conduct.”
Halberstam, 705 F.2d at 478; see also id. at 485 n.14 (noting
“the scienter requirement in the third element” addresses the
issue of “whether an aider-abettor must knowingly assist the
underlying violation”).
We conclude that the Gonzalez Plaintiffs adequately
allege knowing assistance. The TAC alleges “each YouTube
video must be reviewed and approved by Google” before
advertisements are placed with that video, and “Google has
reviewed and approved ISIS videos . . . for ‘monetization,’”
and Google therefore “shared revenue with ISIS.” The TAC
alleges that, prior to the Paris Attacks, numerous news
organizations reported on Google’s placement of
advertisements in or alongside ISIS videos, and Google
responded to these media reports by stating it worked to
prevent ads from appearing on any video once it determined
the content was not appropriate for advertising partners.
In Halberstam, the knowledge requirement of the third
element was satisfied because Linda Hamilton’s actions
“were performed knowingly to assist Welch in his illicit
trade.” 705 F.2d at 486; see also id. at 488 (noting that
Hamilton had “assisted Welch with knowledge that he had
engaged in illegal acquisition of goods”). Here, the Gonzalez
Plaintiffs allege that Google reviewed and approved ISIS
videos for monetization and thereby knowingly provided ISIS
with financial assistance for its terrorist operations.
According to the TAC, Google did so despite its awareness
that these videos were created by ISIS and posted by ISIS
GONZALEZ V. GOOGLE 63
using known ISIS accounts. Taking these allegations as true,
they are sufficient to plausibly allege that Google’s assistance
was knowing as required by § 2333(d)(2).
That leaves the question whether the Gonzalez Plaintiffs
sufficiently allege that Google’s assistance was “substantial.”
Based on our review of the six Halberstam factors, we
conclude the Gonzalez Plaintiffs did not allege that Google’s
assistance rose to this level. See Linde, 882 F.3d at 329; see
also Halberstam, 705 F.2d at 483–84.
As to the first factor—the nature of the act
encouraged—Halberstam explained that the nature of the
principal’s act “dictates what aid might matter, i.e., be
substantial.” Halberstam, 705 F.2d at 484. For example,
verbal support might be of great import when a “defendant’s
war cry for more blood” contributes to an “assaulter’s
hysteria,” but less important in a case involving a defamation.
See id. Here, the Gonzalez Plaintiffs allege that Google
assisted ISIS’s long-running terrorist campaign. Financial
support is “indisputably important” to the operation of a
terrorist organization, id. at 488, and any money provided to
the organization may aid its unlawful goals. Fields, 881 F.3d
at 748; cf. Siegel, 933 F.3d at 225.
The second factor considers “the amount of assistance
given by the defendant.” Halberstam, 705 F.2d at 478. This
factor recognizes that not all assistance is equally important,
see id. at 484, and the TAC contains no information about the
amount of assistance provided by Google. It only alleges that
Google shared some advertising revenue with ISIS.
Third, we consider the defendant’s “presence or absence
at the time of the tort” to assess whether the defendant’s
64 GONZALEZ V. GOOGLE
assistance was “substantial.” Id. at 478. The Gonzalez
Plaintiffs concede that Google was not present at the time of
the Paris Attacks. However, if the relevant tort is viewed as
ISIS’s broader campaign of terrorism, including the
dissemination of propaganda on Google’s website before and
after the Paris Attacks, Google was arguably present for at
least some of the terroristic activities that comprise the
“principal violation.”
The fourth factor considers the defendant’s “relation” to
the principal, recognizing that some persons—e.g., those in
positions of authority, or members of a larger group—may
possess greater powers of suggestion. Id. at 478, 484.
Halberstam also cautioned that courts should be “especially
vigilant” in evaluating a spouse’s assistance, “so as not to
infuse the normal activities of a spouse with the aura of a
concerted tort.” Id. at 484. Google allowed members of ISIS
who posted videos on YouTube to opt into AdSense, and by
approving ISIS videos for monetization, Google agreed to
share some percentage of the resulting advertising revenue
with those ISIS members. Thus, the allegations in the TAC
describe arms-length business transactions between Google
and YouTube users who opted into the AdSense program.
The fifth factor is directed to the defendant’s “state of
mind.” Id. at 478. Evidence of a defendant’s state of mind
may show that a defendant was “one in spirit” with the
principal actor. Id. at 484. The Gonzalez Plaintiffs do not
allege that Google had any intent to finance, promote, or
carry out ISIS’s terrorist acts. See Siegel, 933 F.3d at 225.
Nor does the TAC suggest that Google shared any of ISIS’s
objectives. Instead, the allegations show, at most, that
Google intended to profit from the AdSense program. The
TAC incorporates by reference articles that indicate Google
GONZALEZ V. GOOGLE 65
took some steps to prevent ads from appearing on ISIS
videos.18
Finally, the sixth factor concerns the “duration of the
assistance provided.” Halberstam, 705 F.2d at 484.
Halberstam explained that “[t]he length of time an alleged
aider-abettor has been involved with a tortfeasor almost
certainly affects the quality and extent of their relationship
and probably influences the amount of aid provided as well;
additionally, it may afford evidence of the defendant’s state
of mind.” Id. Here, the TAC lacks specific allegations about
the length of time Google provided assistance to ISIS in the
form of revenue-sharing, but it cites several news articles
from March 2015 and March 2016 describing the placement
of advertisements on YouTube videos posted by ISIS. The
TAC also provides an example from a video published on
May 28, 2015. Thus, at most, the Gonzalez Plaintiffs allege
that advertisements were placed on ISIS’s YouTube videos
during those periods of time.
We conclude that these allegations fall short of
establishing that Google’s assistance was sufficiently
“substantial” for purposes of § 2333(d)(2) liability. When we
review an order granting a 12(b)(6) motion to dismiss we are
required to assess whether the allegations in the complaint,
taken as true, state a claim of substantial assistance. See
Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1177 (9th Cir.
2021) (“Our case law does not permit plaintiffs to rely on
anticipated discovery to satisfy Rules 8 and 12(b)(6); rather,
18
See, e.g., Ads Shown Before YouTube ISIS Videos
Catch Companies Off-Guard, NBC News (Mar. 10,
2015), http://www.nbcnews.com/storyline/isis-terror/ads-shown-
isis-videos-youtube-catchcompanies-guard-n320946.
66 GONZALEZ V. GOOGLE
pleadings must assert well-pleaded factual allegations to
advance to discovery”).
Although monetary support is undoubtedly important to
ISIS’s terrorism campaign, the TAC is devoid of any
allegations about how much assistance Google provided. As
such, it does not allow the conclusion that Google’s
assistance was substantial. Nor do the allegations in the TAC
suggest that Google intended to assist ISIS. Accordingly, we
conclude the Gonzalez Plaintiffs failed to state a claim for
aiding-and-abetting liability under the ATA. We do not
consider whether the identified defects in the Gonzalez
Plaintiffs’ revenue-sharing claims—principally, the absence
of any allegation regarding the amount of the shared
revenue—could be cured by further amendment because the
Gonzalez Plaintiffs were given leave to amend those claims
and declined to do so. See WMX Techs., Inc. v. Miller,
104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
B
Section 2333(d)(2) also permits claims for secondary
liability “as to any person . . . who conspires with the person
who committed . . . an act of international terrorism” as set
forth in § 2333(a). As with aiding-and-abetting liability,
JASTA specifies that the D.C. Circuit’s decision in
Halberstam provides “the proper legal framework” for
assessing conspiracy liability under § 2333(d). Pub. L. No.
144-222, § 2(a)(5), 130 Stat. at 852. Halberstam concluded
that proof of conspiracy requires three elements: (1) “an
agreement to do an unlawful act or a lawful act in an unlawful
manner,” (2) “an overt act in furtherance of the agreement by
someone participating in it,” and (3) “injury caused by the
act.” 705 F.2d at 487. We conclude the Gonzalez Plaintiffs’
GONZALEZ V. GOOGLE 67
TAC does not state an actionable claim for conspiracy
liability.
The TAC’s allegations are insufficient to plausibly
suggest that Google reached an agreement with ISIS to carry
out the Paris Attacks that caused Nohemi Gonzalez’s death.
Halberstam requires the overt act causing plaintiffs’ injury
must be “done pursuant to and in furtherance of the common
scheme.” Id. at 477. Google’s sharing of revenues with
members of ISIS does not, by itself, support the inference that
Google tacitly agreed to commit homicidal terrorist acts with
ISIS, where Nohemi Gonzalez’s murder was an overt act
perpetrated pursuant to, and in furtherance of, that common
scheme.19 We therefore conclude that the Gonzalez Plaintiffs
fail to state a claim for conspiracy liability under the ATA,
and affirm the district court’s dismissal with prejudice of the
TAC.
VI
We now turn to the Taamneh appeal. As we have
explained, although the complaints in Gonzalez and Taamneh
are similar, our decision in Taamneh is largely dictated by the
path Taamneh took to reach our court. Because the bulk of
the Gonzalez Plaintiffs’ claims were properly dismissed on
the basis of § 230 immunity, our decision in Gonzalez
principally focuses on whether the Gonzalez Plaintiffs’
19
The Gonzalez Plaintiffs seek to enlist the TAC’s allegation that
“Google . . . conspired with ISIS, its members[,] and affiliates” to
promote, plan, and carry out “the acts of international terrorism that
injured the plaintiffs.” But this conclusory allegation is insufficient to
survive a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555–56 (2007).
68 GONZALEZ V. GOOGLE
revenue-sharing theory sufficed to state a claim under the
ATA. In contrast, the district court in Taamneh did not reach
§ 230; it only addressed whether the Taamneh Plaintiffs
plausibly alleged violations of the ATA for purposes of Rule
12(b)(6). The Taamneh appeal is further limited by the fact
that the Taamneh Plaintiffs only appealed the dismissal of
their aiding-and-abetting claim.
The Taamneh Plaintiffs’ aiding-and-abetting claim stems
from Abdulkadir Masharipov’s murder of Nawras Alassaf at
the Reina nightclub on January 1, 2017. Masharipov’s
connection to ISIS is not disputed. He filmed his
“martyrdom” video, wherein he stated that he was going to
carry out a suicide attack in the name of ISIS, and requested
that his son grow up to be a suicide bomber like him.20 About
one year before the Reina Attack, ISIS instructed Masharipov
to move to Turkey with his family and await further orders.
ISIS provided Masharipov with an assault rifle, ammunition,
and stun grenades, and directed Masharipov when and where
to attack. ISIS also sent Masharipov footage taken inside the
Reina nightclub, and Masharipov viewed it at length to
memorize the floor plan in preparation for his attack.
1
Taamneh Plaintiffs’ aiding-and-abetting claim is
governed by the standards set forth in Halberstam. The first
Halberstam element requires that “the party whom the
20
The operative complaint alleges “[m]artyrdom videos, shared via
Defendants’ websites, are tools of propaganda frequently used by ISIS.
These videos are used as psychological weapons in ISIS’s attempt to
establish validity for their actions, inspire fear in their enemies, or spread
their ideology for political or religious ambitions.”
GONZALEZ V. GOOGLE 69
defendant aids must perform a wrongful act that causes an
injury.” 705 F.2d at 477. The parties do not dispute that the
Reina Attack was an “act of international terrorism” that was
“committed, planned, or authorized” by ISIS. Nor do the
parties dispute that the Reina Attack caused the Taamneh
Plaintiffs’ injury—the killing of Nawras Alassaf.
2
The second Halberstam element of aiding-abetting
liability requires the defendant to be “generally aware of his
role as part of an overall illegal or tortious activity at the time
that he provides the assistance.” Id. The Taamneh Plaintiffs
also satisfied this element.
The Taamneh Plaintiffs allege that, at the time of the
Reina Attack, defendants were generally aware that ISIS used
defendants’ platforms to recruit, raise funds, and spread
propaganda in support of their terrorist activities. The FAC
alleges that, despite “extensive media coverage” and legal
and governmental pressure, defendants “continued to provide
these resources and services to ISIS and its affiliates, refusing
to actively identify ISIS’s Twitter, Facebook, and YouTube
accounts, and only reviewing accounts reported by other
social media users.” These allegations suggest the
defendants, after years of media coverage and legal and
government pressure concerning ISIS’s use of their platforms,
were generally aware they were playing an important role in
ISIS’s terrorism enterprise by providing access to their
platforms and not taking aggressive measures to restrict
ISIS-affiliated content. See Linde, 882 F.3d at 329; see also
Halberstam, 705 F.2d at 477.
70 GONZALEZ V. GOOGLE
3
The third Halberstam element requires the plaintiff to
allege the defendant knowingly and substantially assisted the
principal violation. 705 F.2d at 477. We conclude the
Taamneh Plaintiffs’ complaint satisfied this element.
The Taamneh Plaintiffs adequately allege that defendants
knowingly assisted ISIS. Specifically, the FAC alleges that
ISIS depends on Twitter, Facebook, and YouTube to recruit
individuals to join ISIS, to promote its terrorist agenda, to
solicit donations, to threaten and intimidate civilian
populations, and to inspire violence and other terrorist
activities. The Taamneh Plaintiffs’ complaint alleges that
each defendant has been aware of ISIS’s use of their
respective social media platforms for many years—through
media reports, statements from U.S. government officials,
and threatened lawsuits—but have refused to take meaningful
steps to prevent that use. The FAC further alleges that
Google shared revenue with ISIS by reviewing and approving
ISIS’s YouTube videos for monetization through the
AdSense program. Taken as true, these allegations
sufficiently allege that defendants’ assistance to ISIS was
knowing.
We next consider whether the Taamneh Plaintiffs
plausibly allege that defendants’ assistance was “substantial,”
applying the six Halberstam factors.21 First, the act
21
Many of the allegations we discuss in the context of Taamneh were
also raised in a similar form in the Gonzalez TAC. But because of the
application of § 230 immunity in Gonzalez, we did not have occasion to
consider them in our evaluation of the Gonzalez Plaintiffs’ aiding-and-
abetting claim.
GONZALEZ V. GOOGLE 71
encouraged is ISIS’s terrorism campaign, and the FAC
alleges that this enterprise was heavily dependent on social
media platforms to recruit members, to raise funds, and to
disseminate propaganda. The FAC alleges that by providing
ISIS with access to robust communications platforms free of
charge, defendants facilitated ISIS’s ability to reach and
engage audiences it could not otherwise reach, and served as
a matchmaker for people around the globe who were
sympathetic to ISIS’s vision. It also alleges ISIS’s terrorist
enterprise relies on financial support, as any money provided
to the organization may aid its unlawful goals. Fields,
881 F.3d at 748.
The second factor—the amount of assistance given by a
defendant—is addressed by the Taamneh Plaintiffs’
allegation that the social media platforms were essential to
ISIS’s growth and expansion. The Taamneh Plaintiffs allege
that, without the social media platforms, ISIS would have no
means of radicalizing recruits beyond ISIS’s territorial
borders. Before the era of social media, ISIS’s predecessors
were limited to releasing short, low-quality videos on
websites that could handle only limited traffic. According to
the FAC, ISIS recognized the power of defendants’ platforms,
which were offered free of charge, and exploited them. ISIS
formed its own media divisions and production companies
aimed at producing highly stylized, professional-quality
propaganda. The FAC further alleges that defendants’ social
media platforms were instrumental in allowing ISIS to instill
fear and terror in civilian populations. By using defendants’
platforms, the Taamneh Plaintiffs allege that ISIS has
expanded its reach and raised its profile beyond that of other
terrorist groups. These are plausible allegations that the
assistance provided by defendants’ social media platforms
72 GONZALEZ V. GOOGLE
was integral to ISIS’s expansion, and to its success as a
terrorist organization.
The third factor considers the defendant’s presence or
absence at the time of the tort. At oral argument, Taamneh
Plaintiffs unambiguously conceded the act of international
terrorism they allege is the Reina Attack itself. There is no
dispute that defendants were not present during the Reina
Attack.
Fourth, we consider the defendant’s relation to the
principal actor, ISIS. The FAC indicates that defendants
made their platforms available to members of the public, and
that billions of people around the world use defendants’
platforms. By making their platforms generally available to
the market, defendants allowed ISIS to exploit their
platforms; but like the Gonzalez TAC, these allegations
indicate that defendants had, at most, an arms-length
transactional relationship with ISIS. The alleged relationship
may be even further attenuated than the ones defendants have
with some of their other users because the FAC alleges
defendants regularly removed ISIS content and ISIS-affiliated
accounts. The Taamneh Plaintiffs do not dispute that
defendants’ policies prohibit posting content that promotes
terrorist activity or other forms of violence.
The fifth factor concerns the defendant’s state of mind.
Here, the Taamneh Plaintiffs do not allege that defendants
had any intent to further or aid ISIS’s terrorist activities, see
Siegel, 933 F.3d at 225, or that defendants shared any of
ISIS’s objectives. Indeed, the record indicates that
defendants took steps to remove ISIS-affiliated accounts and
videos. With respect to advertisements on ISIS YouTube
videos, the articles incorporated into the complaint suggest
GONZALEZ V. GOOGLE 73
that Google took at least some steps to prevent ads from
appearing on ISIS videos.
The sixth factor addresses the period of the defendant’s
assistance. The Taamneh Plaintiffs allege that defendants
provided ISIS with an effective online communications
platforms for many years. The FAC alleges that ISIS-
affiliated accounts first appeared on Twitter in 2010.
According to the Taamneh Plaintiffs’ FAC, ISIS used
Facebook as early as 2012, and used YouTube as early as
2013.
Taking the FAC’s allegations as true, we conclude the
Taamneh Plaintiffs adequately allege that defendants’
assistance to ISIS was substantial. The FAC alleges that
defendants provided services that were central to ISIS’s
growth and expansion, and that this assistance was provided
over many years.
We are mindful that a defendant’s state of mind is an
important factor, and that the FAC alleges the defendants
regularly removed ISIS-affiliated accounts and content. See
Halberstam, 705 F.2d at 488 (noting that Hamilton’s state of
mind “assume[d] a special importance” because her knowing
assistance evidenced “a deliberate long-term intention to
participate in an ongoing illicit enterprise” and an “intent and
desire to make the venture succeed”). But the Taamneh
Plaintiffs also allege that defendants allowed ISIS accounts
and content to remain public even after receiving complaints
about ISIS’s use of their platforms.
We also recognize the need for caution in imputing
aiding-and-abetting liability in the context of an arms-length
transactional relationship of the sort defendants have with
74 GONZALEZ V. GOOGLE
users of their platforms. Not every transaction with a
designated terrorist organization will sufficiently state a claim
for aiding-and-abetting liability under the ATA. But given
the facts alleged here, we conclude the Taamneh Plaintiffs
adequately state a claim for aiding-and-abetting liability.
VII
Finally, we turn to Clayborn. The claims in Clayborn
arise from a fatal shooting in San Bernardino, California in
which Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos
lost their lives. The district court did not address § 230
immunity and the Clayborn Plaintiffs only appeal the
dismissal of their ATA claim for aiding-and-abetting liability.
The Clayborn Plaintiffs allege that Google, Twitter, and
Facebook provided key assistance to the two shooters, Farook
and Malik. To plausibly allege an aiding-and-abetting claim
under the ATA, the Clayborn Plaintiffs must allege that ISIS
“committed, planned, or authorized” the San Bernardino
Attack. 18 U.S.C. § 2333(d)(2); see also Halberstam,
705 F.2d at 477. The district court held the Clayborn
Plaintiffs failed to plausibly allege that ISIS committed,
authorized, or planned the San Bernardino Attack because the
ties between the attack and ISIS were “insufficient to
plausibly plead claims for indirect liability.” The court
interpreted § 2333(d)(2) to require “evidence that ISIS itself
planned or carried out the attack,” requiring more than
allegations that ISIS sought to “generally radicalize”
individuals and that ISIS promoted terrorist attacks.
On appeal, the Clayborn Plaintiffs argue three “central
allegations” sufficiently connect ISIS to Farook and Malik:
(1) ISIS claimed responsibility for the San Bernardino Attack
GONZALEZ V. GOOGLE 75
after the fact; (2) Malik pledged allegiance to then-ISIS
leader Abu Bakr al-Baghdadi at some point during the attack;
and (3) “the FBI confirmed evidence that Farook had face to
face meetings a few years prior to the attack with five people
the Bureau investigated and labeled [as] having ‘links to
terrorism.’” From these allegations, the Clayborn Plaintiffs
urge us to infer “that ISIS authorized the San Bernardino
shooting sometime before the attack.”
We conclude the operative complaint does not plausibly
allege that ISIS “committed, planned, or authorized” the San
Bernardino Attack. It is undisputed that Farook and Malik
planned and carried out the mass killing, but the Clayborn
Plaintiffs’ allegations suggest only that ISIS approved of the
shooting after learning it had occurred, not that it authorized
the attack beforehand. The allegations in the operative
complaint indicate some connection between the shooters and
ISIS is possible, but more is needed in order to plausibly
allege a cognizable claim for aiding-and-abetting liability.
Twombly, 550 U.S. at 555 (“Factual allegations must be
enough to raise a right to relief above the speculative level . . .
on the assumption that all of the complaint’s allegations are
true . . . .” (internal citation omitted)).
The Sixth Circuit decision in Crosby aligns with our
conclusion. In Crosby, plaintiffs filed claims against Google,
Twitter, and Facebook under the ATA following the mass
shooting at the Pulse Night Club in Orlando, Florida.
621 F.3d at 619. The plaintiffs alleged “ISIS ‘virtually
recruited’ people through online content, [the shooter] saw
this content at some point before the shooting, and [the
shooter] injured Plaintiffs.” Id. at 626. The Crosby plaintiffs
also alleged that ISIS took responsibility for the attack after
the fact. Id. at 619. Even taking the allegations as true, the
76 GONZALEZ V. GOOGLE
Sixth Circuit concluded the complaint alleged the shooter was
“self-radicalized” and never had any contact with ISIS, and
failed to allege that ISIS gave permission for the attack. Id.
Thus, the Sixth Circuit held “there [were] insufficient facts to
allege that ISIS ‘committed, planned, or authorized’ the Pulse
Night Club shooting.” Id. at 626.
The dissent would hold that the Clayborn Plaintiffs
adequately stated a claim for aiding and abetting liability.
Specifically, the dissent relies on the Clayborn Plaintiffs’
allegation that Farook and Malik used a tactic a Department
of Justice report described as “a frequent, well documented
practice in international terrorism incidents” that had been
outlined in Al Qaeda and ISIS magazines disseminated on
defendants’ platforms. We disagree. Farook and Malik’s use
of well-known terrorist tactics do not give rise to an inference
that their attack was “implicitly authorized” by ISIS.
The dissent urges us to apply common law principles of
agency to conclude that ISIS authorized the San Bernardino
Attack by ratifying it after the fact. We cannot agree this
element is adequately alleged. Section 2333(d)(2) requires
plaintiffs to demonstrate the act of international terrorism was
“committed, planned, or authorized” by a foreign terrorist
organization. The language Congress adopted gives no
indication that the “committed, planned, or authorized”
element is satisfied merely because a foreign terrorist
organization praises an act of terrorism.
Even if Congress intended “authorized” to include acts
ratified by terrorist organizations after the fact, ISIS’s
statement after the San Bernardino Attack fell short of
ratification. The complaint alleges that ISIS stated, “Two
followers of Islamic State attacked several days ago a center
GONZALEZ V. GOOGLE 77
in San Bernardino in California, we pray to God to accept
them as Martyrs.” This clearly alleges that ISIS found the
San Bernardino Attack praiseworthy, but not that ISIS
adopted Farook’s and Malik’s actions as its own. See
Restatement (Third) of Agency, § 4.01 cmt. b, (1933) (“The
act of ratification consists of an externally observable
manifestation of assent to be bound by the prior act of another
person.”).
Because the Clayborn Plaintiffs’ allegations do not
plausibly allege that ISIS “committed, planned, or
authorized” the San Bernardino Attack, the Clayborn
Plaintiffs did not adequately state a claim for aiding and
abetting an act of international terrorism under § 2333(d)(2).
See Crosby, 921 F.3d at 626.22
VIII
The plaintiffs in these three cases suffered devastating
losses from acts of extreme and senseless brutality, and their
claims highlight an area where technology has dramatically
outpaced congressional oversight. There is no indication the
drafters of § 230 imagined the level of sophistication
algorithms have achieved. Nor did they foresee the
22
The district court did not reach whether the San Bernardino Attack
was an “act of international terrorism.” (emphasis added). This question
appears to be much closer in Clayborn than either of the other appeals
before us. See 18 U.S.C. § 2331(1)(C). In Clayborn, the attack was
planned and executed in the United States by a U.S. citizen and his wife.
Although the San Bernardino Attack was undoubtably an act of terror, it
is less clear whether the complaint alleged sufficient international activity
to qualify the San Bernardino Attack as an instance of “international
terrorism.” Having held the Clayborn Plaintiffs failed to state a claim for
secondary liability on other grounds, we do not decide that question.
78 GONZALEZ V. GOOGLE
circumstance we now face, in which the use of powerful
algorithms by social media websites can encourage, support,
and expand terrorist networks. At the time § 230 was
enacted, it was widely considered “impossible for service
providers to screen each of their millions of postings for
possible problems.” Carafano, 339 F.3d at 1124 (emphasis
added) (quoting Zeran, 129 F.3d at 330–31). But it is
increasingly apparent that advances in machine-learning
warrant revisiting that assumption. Indeed, social media
companies are reportedly making laudable strides to develop
tools to identify, flag, and remove inherently illegal content
such as child pornography.23 Section 230’s sweeping
immunity is likely premised on an antiquated understanding
of the extent to which it is possible to screen content posted
by third parties.
There is no question § 230(c)(1) shelters more activity
than Congress envisioned it would. Whether social media
companies should continue to enjoy immunity for the third-
party content they publish, and whether their use of
algorithms ought to be regulated, are pressing questions that
Congress should address.
IX
With respect to Gonzalez, we affirm the district court’s
ruling that § 230 immunity bars the plaintiffs’ non-revenue
sharing claims. We also affirm the district court’s dismissal
of the direct liability revenue-sharing claims for failure to
adequately allege proximate cause. Separately, we conclude
the TAC’s direct liability revenue-sharing claims did not
plausibly allege that Google’s actions qualified as acts of
23
Supra note 11.
GONZALEZ V. GOOGLE 79
international terrorism within the meaning of § 2331(1), and
that the secondary liability revenue-sharing claims failed to
plausibly allege either conspiracy or aiding-and-abetting
liability under the ATA.
With respect to Taamneh, we reverse the district court’s
judgment that the FAC failed to adequately state a claim for
secondary liability under the ATA.
With respect to Clayborn, we affirm the judgment of the
district court that Clayborn Plaintiffs failed to state a claim
for secondary liability under the ATA.24
The judgment in No. 18-16700 is AFFIRMED.
The judgment in No. 18-17192 is REVERSED AND
REMANDED.
The judgment in No. 19-15043 is AFFIRMED.
24
Amicus Electronic Frontier Foundation (EFF) moves to file an
amicus brief in this appeal. We grant the motion, and grant the Gonzalez
Plaintiffs’ motion to file an oversized reply brief in order to respond to
EFF. In its amicus brief, EFF raises several arguments concerning the
First Amendment. We often “decline to consider” amicus briefs that seek
“to raise issues not raised or briefed by the parties.” Am. Trucking Ass’ns,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1053 n.11 (9th Cir. 2009)
(citing Day v. Apoliona, 496 F.3d 1027, 1035 n.11 (9th Cir. 2007)). Here,
because the parties did not raise the First Amendment, the panel declines
to consider EFF’s arguments on this issue.
80 GONZALEZ V. GOOGLE
BERZON, Circuit Judge, concurring:
I concur in the majority opinion in full. I write separately
to explain that, although we are bound by Ninth Circuit
precedent compelling the outcome in this case, I join the
growing chorus of voices calling for a more limited reading
of the scope of section 230 immunity. For the reasons
compellingly given by Judge Katzmann in his partial dissent
in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), cert.
denied, 140 S. Ct. 2761 (2020), if not bound by Circuit
precedent I would hold that the term “publisher” under
section 230 reaches only traditional activities of publication
and distribution—such as deciding whether to publish,
withdraw, or alter content—and does not include activities
that promote or recommend content or connect content users
to each other. I urge this Court to reconsider our precedent en
banc to the extent that it holds that section 230 extends to the
use of machine-learning algorithms to recommend content
and connections to users.
47 U.S.C. § 230(c)(1) provides: “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.” “This grant of immunity
applies only if the interactive computer service provider is not
also an ‘information content provider,’ which is defined as
someone who is ‘responsible, in whole or in part, for the
creation or development of’ the offending content.” Fair
Hous. Council of San Fernando Valley v. Roommates.Com,
LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (quoting
47 U.S.C. § 230(f)(3)). Although the statute was enacted in
response to the risk of liability for defamation, the language
of the statute applies to any cause of action based on the
publication or speaking of information content. See Barnes
GONZALEZ V. GOOGLE 81
v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009). This
Court has held that immunity under section 230 extends to
“(1) a provider or user of an interactive computer service
(2) whom a plaintiff seeks to treat, under a state law cause of
action, as a publisher or speaker (3) of information provided
by another information content provider.” Dyroff v. Ultimate
Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019),
cert. denied, 140 S. Ct. 2761 (2020) (quoting Barnes,
570 F.3d at 1100–01).
The key issue as to the non-revenue-sharing claims in
Gonzalez v. Google is whether Google, through YouTube, is
being treated “as a publisher” of videos posted by ISIS for
purposes of these claims. We have previously held that
“publication involves reviewing, editing, and deciding
whether to publish or to withdraw from publication third-
party content.” Barnes, 570 F.3d at 1102. A website’s
decisions to moderate content, restrict users, or allow third
parties full freedom to post content and interact with each
other all therefore fall squarely within the actions of a
publisher shielded from liability under section 230.
But the conduct of the website operators here—like the
conduct of most social media website operators today—goes
very much further. The platforms’ algorithms suggest new
connections between people and groups and recommend long
lists of content, targeted at specific users. As Judge Gould’s
dissent cogently explains, the complaint alleges that the
algorithms used by YouTube do not merely publish user
content. Instead, they amplify and direct such content,
including violent ISIS propaganda, to people the algorithm
determines to be interested in or susceptible to those
messages and thus willing to stay on the platform to watch
more. Dissent at 96–97. Similarly, “Facebook uses the
82 GONZALEZ V. GOOGLE
algorithms to create and communicate its own message: that
it thinks you, the reader—you, specifically—will like this
content. And . . . Facebook’s suggestions contribute to the
creation of real-world social networks.” Force, 934 F.3d
at 82 (Katzmann, C.J., concurring in part and dissenting in
part).
In my view, these types of targeted recommendations and
affirmative promotion of connections and interactions among
otherwise independent users are well outside the scope of
traditional publication. Some sites use their algorithms to
connect users to specific content and highlight it as
recommended, rather than simply distributing the content to
anyone who chooses to engage with it. Others suggest that
users communicate with designated other users previously
unknown to the recipient of the suggestion. See Dyroff,
934 F.3d at 1095. Traditional publication has never included
selecting the news, opinion pieces, or classified ads to send to
each individual reader based on guesses as to their
preferences and interests, or suggesting that one reader might
like to exchange messages with other readers. The actions of
the social network algorithms—assessing a user’s prior posts,
friends, or viewing habits to recommend new content and
connections—are more analogous to the actions of a direct
marketer, matchmaker, or recruiter than to those of a
publisher. Reading the statute without regard to our post-
Barnes case law, I would hold that a plaintiff asserting a
claim based on the way that website algorithms recommend
content or connections to users is not seeking to treat the
interactive computer service as a “publisher” within any usual
meaning of that term. Instead, the website is engaging in its
own communications with users, composing and sending
messages to users concerning what they might like to view or
who they might like to interact with.
GONZALEZ V. GOOGLE 83
Nothing in the history of section 230 supports a reading
of the statute so expansive as to reach these website-
generated messages and functions. Section 230 “provide[d]
internet companies with immunity from certain claims ‘to
promote the continued development of the Internet and other
interactive computer services.’” HomeAway.com, Inc. v. City
of Santa Monica, 918 F.3d 676, 681 (9th Cir. 2019) (quoting
47 U.S.C. § 230(b)(1)). But as Judge Katzmann thoroughly
explained in his dissent in Force, the aim of section 230 was
to avoid government regulation of internet content while
“empower[ing] interactive computer service providers to self-
regulate, and . . . provid[ing] tools for parents to regulate,
children’s access to inappropriate material.” Force, 934 F.3d
at 79 (Katzmann, C.J., concurring in part and dissenting in
part). A New York state court had just held that an Internet
provider that hosted online bulletin boards could be held
liable for defamation as a publisher because it actively
monitored and removed offensive content. See Batzel v.
Smith, 333 F.3d 1018, 1029 (9th Cir. 2003) (citing Stratton
Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *4
(N.Y. Sup. Ct. May 24, 1995) (unpublished)). So section
230, responding to Stratton Oakmont, prevented providers
from being treated as the publisher of third-party content,
47 U.S.C. § 230(c)(1), and eliminated liability for actions
taken to restrict access to objectionable material, id.§ 230(c)(2). Although “Congress grabbed a bazooka to swat
the Stratton-Oakmont fly,” Force, 934 F.3d at 80 (Katzmann,
C.J., concurring in part and dissenting in part), still, neither
the text nor the history of section 230 supports a reading of
“publisher” that extends so far as to reach targeted,
affirmative recommendations of content or of contacts by
social media algorithms.
84 GONZALEZ V. GOOGLE
BUT: As the majority opinion explains, our case law
squarely and irrefutably holds otherwise. There is just no
getting around that conclusion, as creatively as Judge Gould’s
dissent tries to do so.
Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093,
involved a social networking website that allowed users
anonymously to share their experiences on any topic and post
and answer questions. Importantly, the website, Experience
Project, also “recommended groups for users to join, based on
the content of their posts and other attributes, using machine-
learning algorithms.” Id. at 1095. One user, Wesley Greer,
posted a question about buying drugs in a heroin-related
group, and the website sent him a notification when a nearby
drug dealer posted in the same group. Id. Greer bought
heroin laced with fentanyl from the dealer and died from the
drug. Id.Dyroff held that “[b]y recommending user groups and
sending email notifications, [the website] was acting as a
publisher of others’ content. These functions—
recommendations and notifications—are tools meant to
facilitate the communication and content of others. They are
not content in and of themselves.” Id. at 1098. To me, those
two sentences actually illustrate why the recommendation and
email notifications are not actions taken in the role of
publisher. The activities highlighted do involve
communication by the service provider, and so are activities
independent of simply providing the public with content
supplied by others.
The recommendations and notifications in Dyroff are not
meaningfully different than the recommendations and
connections provided by the social media companies in the
GONZALEZ V. GOOGLE 85
cases at issue here. Greer’s mother alleged that Experience
Project “steered users to additional groups dedicated to the
sale and use of narcotics” and “sent users alerts to posts
within groups that were dedicated to the sale and use of
narcotics,” both actions that relied on algorithms to amplify
and direct users to content. Id. at 1095. Like the
recommendations provided by YouTube, Experience
Project’s recommendations communicated to each user that
the website thought that user would be interested in certain
posts and topics. And, as here, the recommended connection
was to individuals openly engaged in illegal activity, and the
consequences were fatal. Just as the terrorist group’s deadly
activities were, according to the complaints in these cases,
facilitated by recommending their gruesome message to
potential recruits, so the drug dealers’ illegal activities in
Dyroff were directly facilitated by connecting them with
potential customers. And in both instances, the consequences
of the service provider’s recommendations were deadly.
The problem in our case law goes considerably further
back than Dyroff. Before Dyroff, Fair Housing Council of
San Fernando Valley v. Roommates.com, LLC, held that
section 230 did not immunize a website that “induced third
parties to express illegal preferences” by including
discriminatory criteria in a required form for people setting
up profiles, 521 F.3d at 1165. Roommates.com operated a
website listing rentals and people seeking rooms and required
subscribers to list information about their own and their
preferred roommates’ sex, sexuality, and family status.
Roommates held that although the information itself was
provided by third parties, the mandatory nature of the
information and the “limited set of pre-populated answers”
made Roommates.com into “much more than a passive
transmitter of information provided by others; it becomes the
86 GONZALEZ V. GOOGLE
developer, at least in part, of that information.” Id. at 1166.
Roommates distinguished between “providing neutral tools
[for users] to carry out what may be unlawful or illicit
searches” or “allow[ing] users to specify whether they will or
will not receive emails by means of user-defined criteria” and
operating “in a manner that contributes to the alleged
illegality.” Id. at 1169.
As the majority discusses, Maj. Op. at 38, Roommates
relied on our prior decision in Carafano v. Metrosplash.com,
Inc., 339 F.3d 1119 (9th Cir. 2003), which held that a dating
website was not liable for an unauthorized and libelous
profile created by a third party, see id. at 1122, 1125. The
dating website “provided neutral tools specifically designed
to match romantic partners depending on their voluntary
inputs.” Roommates, 521 F.3d at 1172. Carafano determined
that the website was being treated as a publisher and that the
“additional features, such as ‘matching’ profiles with similar
characteristics” were not sufficient to make the website into
the “creator” or “developer” of the content in user profiles
under 47 U.S.C. § 230(f)(3). 339 F.3d at 1125; see id.at 1124–25. Instead, the Court determined that such features
were more akin to editing or selection. Id. at 1124. A tool
matching two people who choose to share similar information
about themselves is nearly identical to Facebook’s algorithm
suggesting possible connections and is similar to algorithms
recommending new videos based on past user viewing habits,
and to the recommendation and notification functions of the
Experience Project at issue in Dyroff. Dyroff concluded that
“[t]he [Experience Project’s] recommendation and
GONZALEZ V. GOOGLE 87
notification functions,” like the tools in Carafano, could not
give rise to liability, because they “helped facilitate . . . user-
to-user communication, but . . . did not materially contribute
. . . to the alleged unlawfulness of the content,” 934 F.3d
at 1099.
The partial dissent considers the Gonzalez Plaintiffs’
allegations “more akin to those in Roommates.com than
Dyroff because of the unique threat posed by terrorism
compounded by social media.” Dissent at 99. But the subject
matter of the third-party content does not dictate whether an
interactive computer service is being treated as a publisher of
that content. Nor does the test proposed in the partial dissent,
which focuses on “message[s] designed to recruit individuals
for a criminal purpose” and material contribution “to a
centralized cause giving rise to a probability of grave harm,”
id. at 100, meaningfully distinguish our case law, particularly
Dyroff. The sale of heroin is a criminal purpose, and many
drug dealers operate as part of criminal networks. Although
the harm caused by a terrorist attack is immense, the harm
caused by the sale of fentanyl-laced heroin is certainly
“grave”—it led to Greer’s death in Dyroff. The allegation
that the recommendation to users of illegal terrorist messages
establishes the illegality of Google’s actions under the Anti-
Terrorism Act (ATA), 18 U.S.C. § 2333, exactly parallels the
allegation in Dyroff that the dissemination of messages
connecting drug dealers to buyers contributed to the harms
Congress intended to combat by prohibiting drug trafficking.
I therefore concur in full in the majority opinion, as we
are bound by this Court’s precedent in Dyroff extending
immunity under section 230 to targeted recommendations of
content and connections. But I agree with the dissent and
Judge Katzmann that recommendation and social connectivity
88 GONZALEZ V. GOOGLE
algorithms—as distinct from the neutral search functions
discussed in Roommates—provide a “message” from the
social media platforms to the user about what content they
will be interested in and other people with whom they should
connect. Transmitting these messages goes beyond the
publishers’ role insulated from liability by section 230.
I urge the Court to take this case en banc to reconsider our
case law and hold that websites’ use of machine-generated
algorithms to recommend content and contacts are not within
the publishing role immunized under section 230. These
cases demonstrate the dangers posed by extending section
230 immunity to such algorithmic recommendations, an
extension, in my view, compelled by neither the text nor
history of the statute. As Judge Gould and Judge Katzmann
both emphasize, algorithms on social media sites do not offer
just one or two suggestions; they operate cumulatively and
dominate the user experience. “The cumulative effect of
recommend[ations] . . . envelops the user, immersing her in
an entire universe filled with people, ideas, and events she
may never have discovered on her own.” Force, 934 F.3d
at 83 (Katzmann, C.J., concurring in part and dissenting in
part). If viewers start down a path of watching videos that the
algorithms link to interest in terrorist content, their immersive
universe can easily become one filled with ISIS propaganda
and recruitment. Even if the algorithm is based on content-
neutral factors, such as recommending videos most likely to
keep the targeted viewers watching longer, the platform’s
recommendations of what to watch send a message to the
user. And that message—“you may be interested in watching
these videos or connecting to these people”—can radicalize
users into extremist behavior and contribute to deadly
terrorist attacks like these.
GONZALEZ V. GOOGLE 89
I concur—but, for the reasons stated, reluctantly—in the
majority opinion.
GOULD, Circuit Judge, concurring in part and dissenting in
part:
I
I concur in part in the majority opinion in its Parts I and
II, Part III.A through III.D, Part III.F, and Part VI, but
respectfully dissent in part as to Part III.E, and Parts IV, V,
and VII. These cases involve several shooting or bombing
incidents involving ISIS terrorists at far-flung worldwide
locations of Paris, France; Istanbul, Turkey; and San
Bernardino, California, in the United States. They also
involve claims that Internet or social media companies such
as Google, YouTube, Facebook, and Twitter contributed to
acts of terrorism because of the operation of their procedures
and platforms. I concur insofar as the majority would reverse
in part the dismissal of revenue-sharing claims in Gonzalez v.
Google, and insofar as it would reverse the district court’s
judgment in Taamneh v. Twitter that the complaint failed to
adequately state a claim for secondary liability under the
Anti-Terrorism Act (“ATA”). However, I respectfully
dissent as to the majority’s dismissal of the Gonzalez claims
on grounds of Section 230 immunity, and of failure to state a
claim for direct or secondary liability under the ATA, because
of the majority’s mistaken conclusion that there was no act of
international terrorism, and I also would hold that the
complaint adequately alleged that there was proximate cause
supporting damages on those claims.
90 GONZALEZ V. GOOGLE
I further note that the majority here makes its dismissive
rulings solely on the pleadings and with no discovery to
illuminate Plaintiffs’ well-plead factual contentions. Federal
Rule of Civil Procedure 12(b)(6) permits dismissal of claims
without pondering evidence in cases where a complaint fails
to state a claim. FRCP 12(b)(6) has an important role to play
in efficiently clearing the courts of suits that lack plausible
allegations or where a legal barrier like preemption exists.
Yet in a case that does not warrant such a prompt dismissal,1
we do the legal system a disservice by dismissing a case
before considering the evidence that can arise in a properly
monitored discovery period. A defendant that actually has
immunity is a good candidate for 12(b)(6) dismissal, but if
the district court’s conception of the scope of immunity is
incorrect, as I believe it was here, then its dismissal under that
rule will be untenable.
I would hold that Section 230 of the Communications
Decency Act (“CDA”) does not bar the Gonzalez Plaintiffs’
claims for direct and secondary liability under the ATA, and
I would allow those claims to proceed to the district court for
a reasonable period for discovery. I agree that claims can
proceed in the Taamneh case, and accordingly agree with
reversing and remanding in that case. And on the Clayborn
1
Doubtless the Defendant social media companies would benefit
from 12(b)(6) dismissal at the outset—in a case where they are actually
immune—to avoid expensive and time-consuming discovery procedures.
However, while that relief would be “swift,” it would not necessarily be
just. I am reminded of the often-quoted observation by Justice Potter
Stewart, when he was a U.S. Circuit Judge and before his elevation to the
Supreme Court, that: “Swift justice demands more than just swiftness.”
Henderson v. Bannan, 256 F.2d 363, 385 (6th Cir. 1958) (Stewart, J.,
dissenting) (capitalization altered). This observation has currency in civil
cases as well, and not only in the criminal justice context.
GONZALEZ V. GOOGLE 91
v. Twitter case, I respectfully dissent because I think that the
majority’s conception of an attack authorized by ISIS is
inconsistent with the allegations of the operative complaint
and well-established principles of tort and agency law.
Further, on all these claims, I would permit amendment if
sought by plaintiffs based on a theory that the claims are
supported by specialized federal common law that may be
applied in cases involving a particularly strong national
interest and a gap in applicable statutory law. 2
I further urge that regulation of social media companies
would best be handled by the political branches of our
government, the Congress and the Executive Branch, but that
in the case of sustained inaction by them, the federal courts
are able to provide a forum responding to injustices that need
to be addressed by our justice system. Here, that means to me
that the courts should be able to assess whether certain
procedures and methods of the social media companies have
created an unreasonably dangerous social media product that
proximately caused damages, and here, the death of many.
The issues here cannot be considered without
contemplating the specific facts alleged in the operative
2
We do not ordinarily consider an issue that was not raised in the
district court, e.g., Am. President Lines Ltd. v. Int’l Longshore &
Warehouse Union, Alaska Longshore Div., Unit 60, 721 F.3d 1147, 1157
(9th Cir. 2013), and similarly do not normally consider issues that are not
presented to us in the briefing, e.g., United States v. Garcia, 149 F.3d
1008, 1010 (9th Cir. 1998). However, these rules have exceptions that are
applied by us in extraordinary cases where permitting such an issue to be
considered is necessary to avoid a miscarriage of justice. See Hormel v.
Helvering, 312 U.S. 552, 557 (1941). Here, the three complaints involve
sufficiently strong interests of the families with loved ones lost to the ISIS
attacks, so that these cases fall within the exception to the rule.
92 GONZALEZ V. GOOGLE
complaints. Because the treatment by the majority of the
facts of the three cases captioned above is not contested by
me, I mention only the briefest thumbnail sketch of what is
involved in the three cases that are now on appeal:
Gonzalez v. Google, 18-16700, involved an ISIS shooting
in Paris on November 13, 2015, which took the life of
Nohemi Gonzalez, a 26-year-old U.S. citizen. This shooting
was one among a broader series of ISIS attacks in Paris on the
same day, including several suicide bombings and mass
shootings.
Taamneh v. Twitter, 18-17192, concerns the notorious
January 1, 2017 mass shooting by an ISIS operative at the
Reina nightclub in Istanbul, Turkey, which left 39 people
dead, 69 others injured, and resulted in the death of Nawras
Alassaf.
Clayborn v. Twitter, 19-15043, concerns the December 2,
2015 attack by ISIS supporters at the Inland Regional Center
in San Bernardino, California, which left 14 people dead and
22 others injured.
All of these terrorist incidents involved ISIS’s supporters.
In all three cases, Plaintiffs alleged that Google, through
YouTube, and Twitter and Facebook, through their features,
provided material support to international terrorism and aided
and abetted international terrorism in violation of the ATA,
as amended in 2016 by the Justice Against Sponsors of
Terrorism Act (“JASTA”). I would hold that the challenged
conduct of the social media companies is not immunized by
Section 230 and that the complaints’ allegations are sufficient
to plausibly allege that the Defendant social media companies
violated positive statutory law and proximately caused
GONZALEZ V. GOOGLE 93
damages to Plaintiffs. In addition, I would hold that the same
types of claims can permissibly be asserted as a matter of
federal common law upon amendment of the complaints. See
infra, Section V.
II
My colleagues hold that Section 230 immunizes Google
from the Gonzalez Plaintiffs’ claims that the YouTube
platform’s content-generating algorithms aid and abet
international terrorism by repeatedly recommending the
propaganda videos of ISIS to users and by broadly
disseminating violent and radicalizing terrorist messages.3 It
is true that: “No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any
3
The problem I challenge is not that the social media companies
republish harmful propaganda from ISIS; the problem is the algorithms
devised by these companies to keep eyes focused on their websites.
Historian Anne Applebaum, who has evaluated the stresses on
democracies in several countries in light of modern communications and
technology, notes the following: “[S]ocial media algorithms themselves
encourage false perceptions of the world. People click on the news they
want to hear; Facebook, YouTube, and Google then show them more of
whatever it is that they already favor, whether it is a certain brand of soap
or a particular form of politics. The algorithms radicalize those who use
them too. If you click on perfectly legitimate anti-immigration YouTube
sites, for example, these can lead you quickly, in just a few more clicks,
to white nationalist sites and then to violent xenophobic sites. Because
they have been designed to keep you online, the algorithms also favor
emotions, especially anger and fear. And because the sites are addictive,
they affect people in ways they don’t expect. Anger becomes a habit.
Divisiveness becomes normal. Even if social media is not yet the primary
news source for all Americans, it already helps shape how politicians and
journalists interpret the world and portray it. Polarization has moved from
the online world into reality.” See Anne Applebaum, Twilight of
Democracy—The Seductive Lure of Authoritarianism (1st ed. 2020).
94 GONZALEZ V. GOOGLE
information provided by another information content
provider.” 47 U.S.C. § 230(c)(1). But in my view, Section
230 was not intended to immunize, nor does its literal
language suggest that it immunizes, companies providing
interactive computer services from liability for serious harms
knowingly caused by their conduct. Plaintiffs raise a genuine
factual issue of whether Defendants knew that ISIS and its
supporters were inserting propaganda videos into their
platforms, which permits the inference that these social media
companies were aware of the risks to the public from
incipient terrorists who, inflamed by ISIS videos, would
wreak havoc upon “infidels” who might be encountered by
them.
Even if under Section 230 Google should not be
considered the publisher or speaker of propaganda messages
posted by ISIS or its sympathizers, the YouTube platform
nonetheless magnified and amplified those communications,
joining them with similar messages, in a way that contributed
to the ISIS terrorists’ message beyond what would be done by
considering them alone. Because ISIS depended on recruits
to carry out its campaign of worldwide hatred and violence,
disseminating its terrorist messages through its propaganda
videos was a proximate cause of the terrorist attacks at issue
here. When fairly read with notice pleading principles in
mind, the complaints plausibly allege ISIS’s dependence on
recruitment through social media’s free publicity and vast
network.
I do not believe that Section 230 was ever intended to
immunize such claims for the reasons stated in Chief Judge
Katzmann’s cogent and well-reasoned opinion concurring in
part and dissenting in part in Force v. Facebook, Inc.,
934 F.3d 53, 76–89 (2d Cir. 2019). Chief Judge Katzmann’s
GONZALEZ V. GOOGLE 95
partially dissenting opinion in Force v. Facebook is appended
as Attachment A to this partial dissent. Although I
substantially agree with Judge Katzmann’s reasoning
regarding Section 230 immunity, I add some thoughts of my
own. In short, I do not believe that Section 230 wholly
immunizes a social media company’s role as a channel of
communication for terrorists in their recruiting campaigns
and as an intensifier of the violent and hatred-filled messages
they convey. The law should not give social media platforms
total immunity, and in my view it does not, because the
conduct plausibly alleged does have “some direct
relationship,” Fields v. Twitter, Inc., 881 F.3d 739, 744 (9th
Cir. 2018), between the asserted injuries of the Plaintiff
families and the Defendant social media companies’ conduct.
Further, Plaintiffs plausibly alleged aiding and abetting
claims because providing the channels of communication for
inflammatory videos should be considered substantial
assistance to the primary violations of terrorist shootings or
bombings.
The majority splits Plaintiffs’ claims into two categories:
claims based on Google’s content-generating algorithms (the
“non-revenue sharing claims”), and claims based on ISIS’s
use of Google’s advertising program, AdSense (the “revenue
sharing claims”). The majority ultimately concludes that
Section 230 shields Google from liability for its content-
generating algorithms. I disagree. I would hold that
Plaintiffs’ claims do not fall within the ambit of Section 230
because Plaintiffs do not seek to treat Google as a publisher
or speaker of the ISIS video propaganda, and the same is true
as to the content-generating methods and devices of Facebook
and Twitter.
96 GONZALEZ V. GOOGLE
Accepting plausible complaint allegations as true, as we
must, Google, through YouTube, and Facebook and Twitter
through their various platforms and programs, acted
affirmatively to amplify and direct ISIS content, repeatedly
putting it in the eyes and ears of persons who were
susceptible to acting upon it. For example, YouTube’s
platform did so by serving up an endless stream of violent
propaganda content after any user showed an inclination to
view such material. At the same time, it permitted its
platforms to be used to convey recruiting information for
ISIS-seeking potential terrorists.
Consider how the Google/YouTube algorithm appears to
operate: To illustrate, let’s assume that a person went to
YouTube and asked it to play a favorite song of some artist
like Elvis Presley or Linda Ronstadt, or a classical symphony
by Ludwig van Beethoven or Wolfgang Amadeus Mozart, or
a jazz piece by Miles Davis or Charlie Parker. After that
requested song played, the viewer or listener would see
automatically a queue of similar or related videos showing
either other songs of the requested artist or of some other
artists within similar genre. Similarly, if one went to
YouTube to see a video about the viewer’s favorite National
Park, the viewer would soon see a line of videos about other
national parks or similar scenery. And here’s the difficulty:
If a person asked YouTube to play a video showing one
bloody ISIS massacre or attack, other such ISIS attacks would
be lined up, or even starting to play automatically. Thus, the
seemingly neutral algorithm instead operates as a force to
intensify and magnify a message. That poses no problem
when the video shows Elvis Presley or Linda Ronstadt
performing a musical song, or shows a beautiful National
Park. But when it shows acts of the most brutal terrorism
imaginable, and those types of images are magnified and
GONZALEZ V. GOOGLE 97
repeated over and over again, often coupled with incendiary
lectures, then the benign aspects of Google/YouTube,
Facebook and Twitter have been transformed into a chillingly
effective propaganda device, the results of which were
effectively realized in this case.
Section 230 of the CDA was aimed at giving Internet
companies some breathing space to permit rapid growth of
them and the economy by providing that when information
was posted on a website, the interactive computer service
hosting that website would not be liable for the substance of
the content posted by the user. Pub. L. 104-104, § 509, 110
Stat. 56, 56, 137–39; Reno v. ACLU, 521 U.S. 844, 857–58
(1997). Our circuit has developed and consistently applied a
three-part test, the Barnes factors, for when immunity applies.
See Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093,
1097 (9th Cir. 2019). Under those factors, a defendant is
entitled to Section 230 immunity when: (1) the defendant is
“a provider or user of an interactive computer service,
(2) whom the plaintiff seeks to treat, under a state law cause
of action, as a publisher or speaker,” (3) “of information
provided by another information content provider.” Id.
at 1097 (quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096,
1100–01 (9th Cir. 2009)).
The factor at issue here is the second. Although Section
230 arguably means that Google and YouTube cannot be
liable for the mere content of the posts made by ISIS, that
provision in no way provides immunity for other conduct of
Google or YouTube or Facebook or Twitter that goes beyond
merely publishing the post. Here, Plaintiffs allege that
Google’s “Services” include not just publishing content, but
also “use of Google’s infrastructure, network, applications,
tools and features, communications services,” and other
98 GONZALEZ V. GOOGLE
specialized tools like “Social Plugins” and “Badges.” Similar
allegations are made about other platforms’ tools and
procedures. I would affirm in part to the extent the district
court applied Section 230 immunity to YouTube or other
platforms simply carrying the posts from ISIS on its platform,
but not to the extent that it amplified and in part developed
the terrorist message by encouraging similar views to be
given to those already determined to be most susceptible to
the ISIS cause.
I believe that my view is consistent with our decision in
Dyroff. The majority relies on Dyroff for the proposition that
Google’s algorithms, which recommend ISIS content to
users, are “neutral tools” meant to facilitate communication
and the content of others. According to my colleagues, then,
under Section 230, Google does not transcend the role of a
publisher by merely recommending terrorism-related content
based on past content viewed.
In Dyroff, Plaintiff challenged a social networking
website called “Experience Project,” which allowed users to
anonymously share their first-person experiences, post and
answer questions, and interact with other users about different
topics. 934 F.3d at 1094. The website interface “did not
limit or promote the types of experiences users
shared”—instead, it was up to the user to use the site’s “blank
box” approach to generate content. Id. The site also used
machine-learning algorithms to recommend groups for users
to join based on the content of their posts. Id. at 1095.
Plaintiff alleged that the site’s functions, including
recommendations of new groups and notifications from
groups of which the user is a member, facilitated an illegal
drug sale that resulted in the death of Plaintiff’s son, Wesley
Greer. Id. Greer posted on the site asking about where to
GONZALEZ V. GOOGLE 99
find heroin in a particular city, and a fellow user responded
and sold fentanyl-laced heroin to Greer. Id. Greer was sent
an email notification when the other user posted, which
resulted in the drug transaction. Id. We held that the site was
entitled to Section 230 immunity because Plaintiff sought to
treat the defendant as the publisher of Greer and his dealer’s
content. Id. at 1097.
We distinguished the facts in Dyroff from Fair Housing
Council of San Fernando Valley v. Roommates.com, 521 F.3d
1157, 1167–69 (9th Cir. 2008) (en banc). In Roommates, we
held that Section 230 did not immunize a website that
matched people renting rooms with people looking for
somewhere to live from liability under federal and state
housing anti-discrimination laws. Id. at 1161–62. The
Roommates.com website design guided users through
required discriminatory criteria, “inducing third parties to
express illegal preferences,” id. at 1165, and therefore the
website itself “directly participate[d] in developing the
alleged illegality.” Dyroff, 934 F.3d at 1099. In Dyroff, then,
we drew a distinction between true material contribution to a
third party’s content—which would involve “responsibility
for what makes the displayed content illegal or
actionable”—and “actions (traditional to publishers) that are
necessary to the display of unwelcome and actionable
content.” Id. (quoting Kimzey v. Yelp! Inc., 836 F.3d 1263,
1269 n.4 (9th Cir. 2016) (citation omitted)).
I would hold that the Gonzalez Plaintiffs’ allegations are
more akin to those in Roommates.com than Dyroff because of
the unique threat posed by terrorism compounded by social
media. ISIS content on YouTube is a pervasive phenomenon.
Plaintiffs allege that “[t]he expansion and success of ISIS is
in large part due to its use of the internet and social media
100 GONZALEZ V. GOOGLE
platforms to promote and carry out its terrorist activities.”
One study by the Counter Extremism Project found that
between March and June 2018, 1,348 ISIS videos were
uploaded to YouTube, garnering 163,391 views.4 Though
websites using neutral tools like algorithms are generally
immunized by Section 230, I would hold that where the
website (1) knowingly amplifies a message designed to
recruit individuals for a criminal purpose, and (2) the
dissemination of that message materially contributes to a
centralized cause giving rise to a probability of grave harm,
then the tools can no longer be considered “neutral.” Further,
a lack of reasonable review of content posted that can be
expected to be harmful to the public, like ISIS’s violent
propaganda videos, also destroys neutrality. 5
4
The Counter Extremism Project, White Paper, The eGlyph
Web Crawler: ISIS Content on YouTube (July 2018),
https://www.counterextremism.com/sites/default/files/eGLYPH_web_c
rawler_white_paper_July_2018.pdf.
5
Google suggests in its briefing that it tries to keep ISIS content from
YouTube. But the record in this case suggests that if so, the control has
been ineffective. The record shows that despite extensive media coverage,
legal warnings, and congressional hearings, social media companies
continued to provide a platform and communication services to ISIS
before the Paris attacks, and these resources and services went heedlessly
to ISIS and its affiliates, as the social media companies refused to actively
identify ISIS YouTube accounts, and only reviewed accounts reported by
other YouTube users. If, for example, a social media company must take
down within a reasonable time sites identified as infringing copyrights, it
follows with stronger logic that social media companies should take down
propaganda sites of ISIS, once identified, within a reasonable time to
avoid death and destruction to the public, which may be victimized by
ISIS supporters. Moreover, if social media companies can ban certain
speakers who flout their rules by conveying lies or inciting violence, as
was widely reported in the aftermath of tweets and posts relating to the
recent “insurrection” of January 6, 2021, then it is hard to see why such
GONZALEZ V. GOOGLE 101
In the case of terrorist recruiting, the dissemination itself
“contributes materially to the alleged illegality of the
conduct,” Roommates.com, 521 F.3d at 1168, in a way that
disseminating other violent videos would not. There can be
no doubt that ISIS’s use of violence and threats of violence is
part of its program of terrorism. Contrary to the majority’s
contention that Google “merely provid[ed] the public with
access to its platform,” Google affirmatively sent a message
in substance to users that individuals who enjoy watching
ISIS content may also be interested in joining its ranks.
Much as allowing a roommate-matching website to screen
candidates by discriminatory criteria presents the same harm
as doing such screening in person or by telephone (which is
clearly prohibited by statute), a search engine that knowingly
transmits recruitment messages to prospective terrorists
presents the exact danger—material support to the terrorist
cause—that Congress intended to combat with the ATA.
Though indeed there are some situations where tools like
algorithms can be “neutral,” where the message itself is the
danger, the tool necessarily contributes to the alleged
illegality of the conduct.6
companies could not police and prohibit the transmission of violent ISIS
propaganda videos, in the periods preceding a terrorist attack. See
Kate Conger & Mike Isaac, Twitter Permanently Bans Trump,
Capping Online Revolt, N.Y. T IMES (Jan. 8, 2021),
https://www.nytimes.com/2021/01/08/technology/twitter-trump-
suspended.html.
6
The majority contends that my view, which considers the danger
inherent in the message amplified by Google, is inconsistent with
congressional intent in enacting Section 230(c)(1). Though it is true that
an interactive computer service is immune when it is “treated as the
publisher or speaker of any information provided by another information
content provider,” 47 U.S.C. § 230(c)(1) (emphasis added), the same
portion of the statute makes clear that for Section 230 to apply, the
102 GONZALEZ V. GOOGLE
Plaintiffs’ allegations underscore the danger of
amplifying ISIS’s recruiting messages. Plaintiffs allege that
ISIS has used YouTube “to cultivate and maintain an image
of brutality, to instill greater fear and intimidation,” and to
distribute videos “made in anticipation of the [Paris] attack
showing each of the ISIS terrorists who carried out the attacks
telling of their intentions and then executing a captive for the
camera.” Plaintiffs allege that ISIS “not only uses YouTube
for recruiting, planning, inciting, and giving instructions for
terror attacks,” but also uses it “to issue terroristic threats . . .
intimidate and coerce civilian populations, take credit for
terror attacks, communicate its desired messages about the
terror attacks . . . [and] demand and attempt to obtain results
from the terror attacks.”
I note that Chief Judge Katzmann’s concurrence in part
and dissent in part in Force v. Facebook, Inc., 934 F.3d 53,
76–89 (2d Cir. 2019), relied on a reading of Roommates.com
that is consistent with my view here. Chief Judge Katzmann
contended that Facebook is developing content by actively
providing friend suggestions between users who have
expressed similar interests—in other words, the algorithms
provided a “message” from Facebook to the user. Id.plaintiffs must be attempting through their suit to treat the website as a
publisher or speaker. But emphasizing the danger of the terrorist message
shows that because Google is amplifying ISIS’s recruitment
message—and thus acting as a content generator, not merely a
publisher—the inherent danger of dissemination materially contributes to
the illegality of the conduct. See Roommates, 521 F.3d at 1168. If a
website is acting as a publisher, then under Section 230 it will be immune
no matter what information it publishes from another source. But if, as is
the case here, the dangerous nature of the message makes amplifying that
message transform what would otherwise be mere publishing into content
development, then the website is no longer immune under Section 230.
GONZALEZ V. GOOGLE 103
at 82–83. In the same way, YouTube is “proactively creating
networks of people,” id. at 83, who are sympathetic to the
ISIS cause, and Google is delivering the message that those
YouTube users may be interested in contributing to ISIS in a
more tangible way.
Furthermore, propagating ISIS messages has an
amplification effect that is greater than the sum of each
individual connection. See Force, 934 F.3d at 83 (Katzmann,
J., dissenting in part) (“The cumulative effect of
recommending several friends, or several groups or events,
has an impact greater than the sum of each suggestion. It
envelops the user, immersing her in an entire universe filled
with people, ideas, and events she may never have discovered
on her own.”). Plaintiffs allege that Google does so in part by
“us[ing] YouTube to direct viewers to other online sites,
postings, media, and other social network media.” When an
ISIS recruitment video manages to reach one person via
YouTube that it might not otherwise have reached, that
person could join the cause by donating their time, money, or
even their life.7 With each person that joins its ranks, ISIS
grows in power and resources. It is the fact of recruitment to
7
As the Counter Extremism Project observes, “there is a clear
link between extremist videos and individuals who have sought to
support or join ISIS. A joint study from the University of
Chicago’s Project on Security and Threats and the Australian
Strategic Policy Institute’s Counter-Terrorism Policy Center found that
83% of Americans who committed or were charged with ISIS-related
crimes between March 2014 and August 2016 watched ISIS
propaganda videos.” See White Paper, eGlyph at 2 (citing Robert
Pape, et al., “The American Face of ISIS,” Australian Strategic Policy
Institute (Feb. 2017), https://s3-ap-southeast-2.amazonaws.com/ad-
aspi/import/ASPI_CPOST_ISIS_Indictees.pdf?2Tbn8TshXmujb1ft8f7P
IR7sukzyr hka).
104 GONZALEZ V. GOOGLE
a centralized organization with the ability to cause
disproportionate harm that distinguishes a terrorist venture
from a “normal” criminal venture (as in Dyroff). In Dyroff,
though the website connected Greer with a drug dealer that he
might not have otherwise met, the singular connection
between the two was unlikely to contribute to a centralized
effort to commit international atrocities. I contend that the
ATA codifies a “duty not to provide material support to
terrorism” precisely because Congress recognized the
exponential impact of such conduct. See Force, 934 F.3d
at 83–84 (Katzmann, J., dissenting in part) (noting that “ATA
torts are atypical” because the Act premises liability “not on
publishing qua publishing, but rather on Facebook’s
provision of services and personnel to Hamas”).
For the foregoing reasons, I would hold that Section 230
does not immunize Google from liability for its content-
generating algorithms insofar as they develop a message to
ISIS-interested users. The same reason supports lack of
immunity for the other Defendant social media companies’
use of their own algorithms, procedures, users, friends, or
other means to deliver similar content from ISIS to the users
of the social media. But even if Dyroff cannot be fairly
distinguished, then our circuit should take this case en banc
to modify or clarify the rule that machine-learning algorithms
can never produce content within the meaning of Section
230,8 or the Supreme Court should take up the proper
8
The majority distinguishes Chief Judge Katzmann’s dissent in Force
in part by emphasizing that “Ninth Circuit case law forecloses his
argument,” though it recognizes that the Force dissent maintains that
Section 230(c)(1) “need not be interpreted to immunize websites’ friend-
and-content-suggestion algorithms.”
GONZALEZ V. GOOGLE 105
interpretation of Section 230 and bring its wisdom and
learning to bear on this complex and difficult topic.9
III
Having determined that Section 230 does not immunize
Google for liability for either set of claims (non-revenue
I disagree that our case law must be read to foreclose the Gonzalez
Plaintiffs’ argument, but the majority’s apparent recognition that friend-
and-content-suggestion algorithms could fairly be interpreted as outside
of Section 230’s ambit lends support to a potential en banc call in this
case.
9
Recently, Justice Thomas commented in connection with the denial
of a writ of certiorari in Malwarebytes, Inc. v. Enigma Software Group
USA, LLC, 141 S. Ct. 13 (2020), that the Court would soon find it
appropriate to take up a case interpreting Section 230. Justice Thomas
notes that a new look at the statute is warranted because “[w]hen Congress
enacted the statute, most of today’s major Internet platforms did not
exist.” Id. at 13 (Thomas, J., writing separately). Despite this, “many
courts have construed the law broadly to confer sweeping immunity on
some of the largest companies in the world.” Id. Justice Thomas goes on
to explain that courts’ views of Section 230 have gone from a “modest
understanding” to beyond what plausibly could have been intended by
Congress, including conferring immunity “even when a company
distributes content that it knows is illegal. Id. at 15 (emphasis in original).
In this separate statement, Justice Thomas made clear his view that the
scope of Section 230 immunity should be narrowed in line with
congressional intent. I agree with Justice Thomas that Section 230 has
mutated beyond the specific legal backdrop from which it developed, and
I cannot join a majority opinion that seeks to extend this sweeping
immunity further. When one considers the analysis in the statement of
Justice Thomas in Malwarebytes, the dissent of Chief Judge Katzmann in
Force v. Facebook, and the concurring opinion of Judge Tymkovich in
FTC v. Accusearch, 570 F.3d 1187 (10th Cir. 2009), I believe that there
is a rising chorus of judicial voices cautioning against an overbroad
reading of the scope of Section 230 immunity.
106 GONZALEZ V. GOOGLE
sharing and revenue sharing), I next consider whether
Plaintiffs properly stated a claim for direct liability under the
ATA.
The majority holds that Section 230 immunizes Google
from liability for Plaintiffs’ non-revenue sharing claims, so it
does not address whether Plaintiffs adequately alleged
primary liability for those claims. Having held that Section
230 does not preclude it from considering that issue for the
revenue sharing claims, however, the majority concludes that
Plaintiffs still do not state a claim for primary liability under
that theory. Specifically, my colleagues would decide that
Plaintiffs fail to plausibly allege that Google committed an
act of international terrorism, or that Google’s actions
proximately caused Nohemi Gonzalez’s death. I address both
bases for the majority’s conclusion in turn.
A
I would hold that the Plaintiffs plausibly stated a claim
that Google could be held primarily liable under the ATA
based on both Google’s revenue-sharing procedure and
Google’s content-generating algorithms. At the motion to
dismiss stage, we accept all factual allegations in the
complaint as true and construe them in the light most
favorable to the nonmoving party. Campidoglio LLC v. Wells
Fargo & Co., 870 F.3d 963, 970 (9th Cir. 2017) (citation
omitted).
The civil remedies provision of the ATA, 18 U.S.C.
§ 2333(a), allows a United States national who is a victim of
“an act of international terrorism” to sue for damages in
federal court. Acts constituting international terrorism
“involve violent acts or acts dangerous to human life that are
GONZALEZ V. GOOGLE 107
a violation of the criminal laws of the United States or of any
State . . . .” 18 U.S.C. § 2331(1)(A). Such acts must “appear
to be intended . . . (i) to intimidate or coerce a civilian
population; (ii) to influence the policy of a government by
intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or
kidnapping.” Id. § 2331(1)(B).
1
The majority acknowledges that Section 230 does not
shield Google from liability on the revenue sharing claims
because the allegations are “premised on Google providing
ISIS with material support by giving ISIS money.” I concur
with that aspect of the opinion, but I would also add that
providing monetary support to a foreign terrorist
organization, with the constructive knowledge that that
money would likely be used as part of the terrorist enterprise,
qualifies as an “act of international terrorism.” 18 U.S.C.
§ 2333(a).
I begin with the contours of Plaintiffs’ revenue sharing
claim. The complaint alleges that Google is aware of ISIS’s
presence on YouTube because it has received complaints
about ISIS content, and it has “suspended or blocked selected
ISIS-related accounts at various times.” Plaintiffs also allege
that Google shares a percentage of the revenue it generates
from pairing advertisements and videos with the video poster.
Through Google’s commercial service, AdSense, users can
register their accounts for “monetization.” Plaintiffs allege
that ISIS uses the AdSense monetization program to earn
revenue. Before the YouTube video can be approved for
advertisements, Google must review and approve the video.
Google has therefore “reviewed and approved ISIS videos,
108 GONZALEZ V. GOOGLE
including videos posted by ISIS-affiliated users, for
‘monetization’ through Google’s placement of ads in
connection with those videos.” Through those approvals,
Google gains constructive knowledge of the fact that it
provided financial support to ISIS and incentivized ISIS to
continue to post videos on YouTube. Plaintiffs’ allegations
about Google’s knowledge is bolstered by contentions that
various news outlets reported on the kind of ads appearing
before ISIS YouTube videos.
The majority mistakenly concludes that Google’s conduct
could not qualify as international terrorism because it is not
“intended to intimidate or coerce a civilian population or to
influence or affect a government.” I disagree. The standard
for intent under the ATA is not subjective; rather, it is a
“matter of external appearance.” Boim v. Holy Land Found.
for Relief & Dev., 549 F.3d 685, 694 (7th Cir. 2008) (en
banc). I would hold that, on the facts alleged, a knowing
provision of resources to a terrorist organization constitutes
aid to international terrorism because an entity like Google
appears to intend the natural and foreseeable consequences of
its actions. See Restatement (Second) of Torts, § 8A (1965).
The majority relies on Linde v. Arab Bank, PLC, 882 F.3d
314 (2d Cir. 2018), to conclude that knowingly providing
material support to a terrorist organization is not “an act of
international terrorism” if it is motivated by economics.
Besides the fact that Linde is a sister circuit decision that is
not binding on our court, its facts and holding are also
distinguishable. In Linde, the court expressly held that it was
error for the district court to instruct the jury that proof that
Arab Bank provided material support to a designated foreign
terrorist organization, in violation of § 2339B, “necessarily
proved the bank’s commission of an act of international
GONZALEZ V. GOOGLE 109
terrorism.” Id. at 325. Thus, the Second Circuit held only
that violating § 2339B does not inherently create an act of
terrorism. The court’s reasoning continually references the
context of its decision: whether it could find that the jury
instruction error was harmless. Id. at 327 (holding that “the
mere provision of routine banking services to organizations
and individuals said to be affiliated with terrorists does not
necessarily establish causation”) (internal quotation marks
and citation omitted) (emphasis added). Indeed, the court did
not even decide whether Arab Bank’s financial services to
Hamas should be viewed as “routine” under the court’s
precedent, because that issue raised a question of fact for the
jury to decide. Id.
Even accepting that providing material aid “does not
invariably equate” to an act of international terrorism under
§ 2331(1), Linde, 883 F.3d at 326, there are clearly situations
where providing such aid operates to endanger human life
and manifests an apparent intent to coerce or intimidate
civilians or to influence or affect governments. The Seventh
Circuit’s Boim decision represents such a case, despite the
majority incorrectly characterizing Plaintiffs’ reliance on it as
“misplaced.” In Boim, the court held that a jury could find
defendants liable under the ATA when they had donated
money to Hamas and Hamas-affiliated charities, knowing that
Hamas used such money to finance violence towards at least
some American citizens. 549 F.3d at 690. Because donating
money to Hamas was like “giving a loaded gun to a child,” it
did not matter that the act of giving money is not a violent act
itself because, in context, it would be “dangerous to human
life.” Id. (citation omitted). The Seventh Circuit recognized
that imposing liability for providing money to a terrorist
group “makes good sense as a counterterrorism measure,”
because “[d]amages are a less effective remedy against
110 GONZALEZ V. GOOGLE
terrorists and their organizations than against their financial
angels.” Id.Boim relied on the foreseeability of the consequences of
donating to Hamas to support its sensible holding that the
donations would appear to be intended to intimidate or coerce
a civilian population. Id. at 694; see also Linde, 883 F.3d at
327 (discussing Boim’s reasoning and stating that “given such
foreseeable consequences,” the donations met the statutory
definition for an act of terrorism). The court analogized
donating to a terrorist organization to giving a small child a
loaded gun because in both cases, the actor is “doing
something extremely dangerous and without justification.”
Id. at 693. “If the actor knows that the consequences are
certain, or substantially certain, to result from his act, and still
goes ahead, he is treated by the law as if he had in fact
desired to produce the result.” Id. (quoting Restatement
(Second) of Torts, § 8A (1965)). The fact that the actor was
not motivated by a desire for the child to shoot anyone is of
no matter to the tort inquiry. Id.
The Gonzalez Plaintiffs allege that Google knew ISIS was
using its AdSense program, and that therefore Google knew
it was providing material support to a terrorist organization.
The fact that Google was not motivated by a desire to
augment ISIS’s efforts to recruit other terrorists is irrelevant.
The majority’s argument—that Google’s interactions with
ISIS via revenue sharing are not intended to intimidate or
coerce civilian populations because Google was “motivated
by economics”—is an arbitrary line divorced from Section
2333’s text and established principles of tort law. Boim—a
decision properly based upon Section 2333’s text and
history—does not attempt to draw a line based on motivation.
In fact, it rejects such a line as irrelevant to the question of
GONZALEZ V. GOOGLE 111
intent because a person intends what he knows is
substantially certain to result from his act. 549 F.3d at 693.
My colleagues attempt to distinguish Boim by noting that a
donor to Hamas would likely share that organization’s vision
and objectives, but Boim did not rely on that aspect of
targeted donation. Instead, the Seventh Circuit reasoned that
“[a] knowing donor to Hamas” is “a donor who knew the
aims and activities of the organization.” Id. at 693–94
(emphasis added). It was the donor’s knowledge of Hamas’
activities, rather than his approval of it, that gave rise to
liability.
2
Because amplifying ISIS’s message and creating new
networks of prospective terrorist recruits foreseeably provides
material support to a terrorist organization, I would likewise
hold that the complaint in Gonzalez v. Google states a claim
that Google is primarily liable on a non-revenue sharing
theory.
Terrorism is, in part, psychological warfare. The record
shows that for ISIS terrorism is a psychological weapon.
ISIS’s most potent and far-reaching weapon is the Internet.
The Gonzalez complaint alleges that “Google’s YouTube
platform has played an essential role in the rise of ISIS,”
which has become one of the largest perpetrators of violence
in the world. ISIS uses YouTube to recruit members, plan
terrorist attacks, issue threats, take credit for attacks, and
demand and attempt to obtain results from the attacks by
influencing government policies and conduct. While one of
ISIS’s goals is to commit acts of violence, “the physical
attack itself and the harm to the individual victims of the
attack” is just one piece of the puzzle—ISIS also uses terror
112 GONZALEZ V. GOOGLE
attacks as a means to communicate its political message and
instill fear in those it considers its combatants. Thus, the
impact of ISIS’s terrorism is dependent upon its ability to
communicate its message and reach its intended audiences.
Id. Plaintiffs allege that “ISIS’s use of violence and threats
of violence [are] part of its program of terrorism, designed
. . . to gain attention, instill fear and ‘terror’ in others, send a
message, and obtain results.” Because the communication of
ISIS violence and threats is part of the terrorist attack,
repeated postings and encouraged viewings of ISIS videos, as
effected by Google’s algorithms, is also part of the attack.
When a terrorist group blows up or shoots up or carves up
passengers on an airplane, railroad car or a subway car, they
do not do it merely to destroy property or injure people
involved in those bombings, shootings, and knifing attacks.
Instead, they aim to create fear in the public so that people
will be afraid to use airplanes or railroad cars or subways or
any general public area to go about their business as usual.
Publicizing the event is just as essential to terrorists’ success
as is the bombing, shooting, or knifing itself. So-called
“neutral” algorithms created by Facebook, Twitter, and
Google, are then transformed into deadly missiles of
destruction by ISIS, even though they were not initially
intended to be used that way. But once there is a consistent
stream of conduct by ISIS, it should be understood that
defendants who passively ignore that conduct can be held to
have intended the natural and probable consequences of their
actions. See Restatement (Second) of Torts, § 8A (1965).
Just as sharing revenue with ISIS is “dangerous to human
life,” Boim, 549 F.3d at 690 (citation omitted), so is
amplifying its message and encouraging recruitment to its
ranks. Perhaps even more so because unlike money, which
GONZALEZ V. GOOGLE 113
is fungible, YouTube has a virtual monopoly on hosting
extremist videos.10 ISIS can get operating funds from a
variety of sources, but very few platforms have the
international network and infrastructure to which YouTube
has access. Imposing liability on social media platforms for
affirmatively amplifying ISIS’s message can therefore “cut
the terrorists’ lifeline.” See id. at 691.
B
Direct liability claims under the ATA require that
plaintiffs show they suffered injury “by reason of an act of
international terrorism.” 18 U.S.C. § 2333(a). The “by
reason of” phrasing has been understood to impose a
requirement of proximate causation. See, e.g., Fields v.
Twitter, 881 F.3d 739, 744 (9th Cir. 2018). To meet this
requirement, “a plaintiff must show at least some direct
relationship between the injuries that he or she suffered and
the defendant’s acts.” Id. at 744.
On my view of the case, the proximate cause issue must
be reached, and I believe that it is satisfied. The ATA’s
purpose in part is to provide a financial remedy to victims of
terrorism. Indeed, ATA’s legislative history demonstrates
Congress’s intent to authorize the “imposition of liability at
any point along the causal chain of terrorism.” S. Rep. No.
102-342, at 22 (1992) (referencing “the flow of money” to
terrorist groups).
10
See, e.g., Neima Jahromi, The Fight for the Future of YouTube,
NEW YORKER (July 8, 2019), https://www.newyorker.com/tech/annals-of-
technology/the-fight-for-the-future-of-youtube.
114 GONZALEZ V. GOOGLE
My view is consistent with our decision in Fields v.
Twitter. In Fields, we acknowledged that acts of international
terrorism are foreseeable consequences of financial support
to a terrorist organization, but we also noted that such
fungibility “does not relieve claimants of their burden to
show causation.” Id. at 749. Fields requires that a plaintiff
plausibly allege a “direct relationship between a defendant’s
act and [a plaintiff’s] injur[ies],” id. at 748, and that element
is met here because there is a sufficient nexus.
Plaintiffs allege that ISIS operatives involved in the Paris
Attacks posted links to ISIS YouTube videos. The sum of
Plaintiffs’ allegations demonstrate that the terrorists
responsible for Plaintiffs’ injuries used YouTube as an
integral component of recruiting, and that such recruiting is
necessary to carry out attacks at the scale of those in Paris.
Specifically, Plaintiffs allege that at least two of the
twelve ISIS terrorists who carried out the Paris Attacks,
Abaaoud and Laachraoui, used online social media platforms
to post links to ISIS recruitment YouTube videos and “jihadi
YouTube videos.” Plaintiffs allege that Abaaoud,
“considered the operational leader of the Paris Attack,” was
an active user of social media, including YouTube. In a
March 2014 ISIS YouTube video, “Abaaoud gave a
monologue (in French) recruiting jihadi fighters for ISIS.”
Plaintiffs also allege that at the time of the attacks these
two ISIS terrorists, who were “instrumental in the Paris
Attack,” were members of or at least involved with ISIS
networks in Belgium called “The Zerkani Network” and
Sharia4Belgium. The Belgian networks “used and relied on
social media to build and maintain connections with ISIS
recruits.” Plaintiffs allege that there was a pervasive network
GONZALEZ V. GOOGLE 115
of ISIS recruiters in Belgium, which has been called “the
epicenter of the Islamic State’s efforts to attack Europe.”
Sharia4Belgium maintained several active YouTube
channels, still active at the time of the Paris Attacks, “which
it used to post sermons, speeches, news events, and other
materials to lure, recruit, and indoctrinate young Muslims to
travel to Syria and Iraq to join ISIS.” Plaintiffs allege that
there was significant overlap and coordination over time
between Sharia4Belgium and “The Zerkani Network.”
Plaintiffs allege that Laachraoui was involved with
Sharia4Belgium at the time of the Paris Attacks, and his
social media accounts appear to show that he followed ISIS
social media and posted links to jihadi YouTube videos on
his own account.
Though Plaintiffs do not specifically allege how the
perpetrators of the Paris Attack were radicalized, such an
allegation is not necessary to plausibly state their claim. It is
enough that the complaint alleged that the perpetrators
themselves actively used YouTube to recruit others to ISIS,
gaining resources with which to plan and implement their
attacks; absent the participation of the social media
companies for their own profit-centered purposes, terrorist
groups like ISIS would not have these resources.
Additionally, Plaintiffs alleged that “The Zerkani Network”
recruited one of the shooters, Abaaoud, “an active user of
social media, including YouTube,” and also alleged that the
network “used and relied on social media” to recruit,
permitting the inference that it is probable Abbaoud was
radicalized through social media. Viewing these allegations
in the light most favorable to the nonmoving party, as we
must, Campidoglio, 870 F.3d at 970, Plaintiffs have plausibly
alleged a sufficient nexus between Google’s conduct and the
116 GONZALEZ V. GOOGLE
Paris Attack victims’ injuries to satisfy a proximate cause
threshold standard.11
A possible analogy may help to illustrate how the social
media companies’ enhancement and spread of ISIS
propaganda promoting violence and seeking to convert
recruits has a direct relation to the damages caused here.
Let’s assume that a person on one side of a crowded football
stadium fires a high-powered rifle aimed at a crowd on the
opposite side of the stadium, filled with people, though all
identities are unclear. Would the majority here say that the
rifle shot striking an unidentified viewer on the other side of
the stadium had no “direct relation” to the shooter and that
the shot did not proximately cause a resulting death? I think
not. There is direct relation between shooter and victim there
sufficient to satisfy Fields and there is similar direct relation
here between the challenged conduct of the Defendant social
media companies and the victims of ISIS violence in these
cases to say that the challenged conduct, if shown to be
illegal, was a proximate cause of damages.
11
It is worth noting that the contrary conclusion, espoused by the
majority, would put these and future plaintiffs in an untenable position.
If we required plaintiffs to specify exactly how an individual terrorist
became radicalized without the benefit of discovery, then it is unlikely that
any such claims could go forward. At the motion to dismiss stage, with
notice pleading principles in mind, the Gonzalez Plaintiffs need only
plausibly allege “some direct relation” between the terrorist’s actions and
the social media companies’ conduct. See Fields, 881 F.3d at 749
(citation omitted). Here, Plaintiffs alleged that the perpetrator of the Paris
Attack was a member of a particular network that used social media to
recruit its members, and that the perpetrator himself was a regular user of
social media. Given that it is unlikely potential terrorists will announce
the avenues by which they were radicalized, such inferences are
permissible.
GONZALEZ V. GOOGLE 117
IV
I next turn to whether Plaintiffs have adequately alleged
claims against Google for secondary liability under JASTA.
As with primary liability, the majority addressed only the
revenue sharing claims in its opinion, but I would hold that
for either set of claims, Plaintiffs have successfully stated a
claim for secondary liability.
Congress amended the ATA by enacting JASTA in 2016,
Pub. L. No. 144-222, 130 Stat. 854 (Sept. 28, 2016), which
extends liability to persons who aid and abet by providing
substantial assistance to persons who commit acts of
international terrorism, and those who conspire to commit
such acts. 18 U.S.C. § 2333(d)(2). Under § 2333(d)(2) of the
ATA, “liability may be asserted as to any person who aids
and abets, by knowingly providing substantial assistance” to
“the person who committed . . . an act of international
terrorism.” Id. I recognize the proper legal framework for
analyzing such claims as that described in Halberstam v.
Welch, 705 F.2d 472 (D.C. Cir. 1983). Like the majority, I
first conclude that the first two Halberstam factors have been
satisfied here: (1) the party whom the defendant aids
performed a wrongful act that caused an injury; and (2) the
defendant was “generally aware of his role as part of an
overall illegal or tortious activity at the time that he
provide[d] the assistance.” Halberstam, 705 F.2d at 477. For
the first element, the complaint plausibly alleges that the
Paris Attacks were “committed, planned, or authorized” by
ISIS, a designated terrorist organization. See 18 U.S.C.
§ 2333(d)(2). For the second element, I agree that Google
was “generally aware of its role in ISIS’s terrorist activities”
at the time it used its content-generating algorithms to send a
message to YouTube users and at the time it shared revenue
118 GONZALEZ V. GOOGLE
through AdSense. In both cases, Google was aware that it
assumed a role in ISIS’s terrorist activities. See Halberstam,
705 F.2d at 488; see also Linde, 882 F.3d at 329 (noting that
the element does not require a showing of “specific intent” as
in criminal aiding and abetting, nor does it require that the
defendant “knew of the specific attacks at issue”).
Unlike my colleagues, however, I also conclude that the
final element is met: the defendant “knowingly and
substantially assisted[ed] the principal violation.”
Halberstam, 705 F.2d at 488. The majority acknowledges
that Google knowingly assisted the principal violation, but
denies that such assistance was “substantial.” 12
I would hold that Google’s assistance via its content-
generating algorithms and revenue sharing was both knowing
and substantial. I need not view the non-revenue sharing
claims and revenue sharing claims in isolation in this portion
of my analysis. Because I conclude that both sets of Plaintiffs
claims are not barred by Section 230, it is the sum of
Google’s conduct that must be considered when assessing
whether the assistance was substantial. The Halberstam court
identified six factors relevant to assessing whether the
substantial assistance component is satisfied: “(1) the nature
of the act encouraged, (2) the amount of assistance given by
12
It may be that what is considered by one person to be “substantial
assistance” is considered by another merely de minimis or inconsequential.
But even if that is so, it would be a better procedure to leave that decision
to fairly selected jurors with proper jury instructions explaining the
“substantial assistance” element. But to me it is clear that ISIS could not
exist and renew itself without constant recruitment of foot soldiers to carry
out its violent missions, often at the cost of their own lives, so I regret that
I cannot persuade my colleagues here to adopt a more permissive standard
for substantial assistance.
GONZALEZ V. GOOGLE 119
defendant, (3) defendant’s presence or absence at the time of
the tort, (4) defendant’s relation to the principal,
(5) defendant’s state of mind, and (6) the period of
defendant’s assistance.” Linde, 882 F.3d at 329 (citing
Halberstam, 705 F.2d at 483–84).
Under the first factor, the Halberstam court emphasized
that the nature of the principal’s act “dictates what aid might
matter, i.e., be substantial.” 705 F.2d at 484. The remaining
factors must be viewed through this lens. ISIS’s long-running
and far-ranging terrorist campaign depends on the continued
provision of money and recruits. Google provided both. As
the majority acknowledges, financial support is “indisputably
important” to operating a terrorism campaign, and any money
provided to the organization may aid its goals. See id. at 488;
Fields, 881 F.3d at 748. The majority also acknowledges, in
the context of reversing the district court’s dismissal of
Taamneh, that YouTube videos encourage ISIS’s terrorism
campaign—an enterprise that is “heavily dependent on social
media platforms to recruit members, to raise funds, and to
disseminate propaganda.” Google provided free exposure to
a dangerous organization, thereby facilitating ISIS’s ability to
reach and rouse prospective recruits. The Gonzalez
complaint alleges that ISIS through YouTube exaggerated its
territorial expansion by disseminating videos with maps
showing ISIS’s claims that it controlled certain regions where
other groups had pledged allegiance to ISIS. The fourth
factor also weighs in favor of recognizing substantial
assistance: defendant’s “relation” to the principal—or the
extent to which an entity “may possess greater powers of
suggestion.” YouTube’s role in cultivating extremist
behavior has been widely acknowledged and the platform
reaches a virtually unlimited number of potential recruits due
to the ubiquity of the Internet. The sixth factor, “duration of
120 GONZALEZ V. GOOGLE
the assistance provided,” concerns the length of time an
alleged aider and abettor has been involved with the
tortfeasor. See Halberstam, 705 F.2d at 484 (emphasis
omitted). Though the complaint in Gonzalez lacks specific
evidence about the length of time Google provided assistance
to ISIS, Plaintiffs allege the placement of ISIS recruiting
videos going back at least four years before the Paris Attacks,
in 2014. The complaint also alleged through news sources
that advertisements were placed on ISIS’s YouTube videos as
early as March 2015, three years before the Paris Attacks. I
would hold that years of hosting ISIS content and providing
it with a percentage of revenue is sufficient duration. Though
Plaintiffs do not allege that Google shared ISIS’s terrorist
goals, Halberstam also directs that under the fifth factor,
defendant’s “state of mind,” the court can consider the
duration factor because it “almost certainly affects the quality
and extent” of the aid, the amount of aid provided, and “it
may afford evidence of the defendant’s state of mind.” Id.Even considering state of mind on its own and viewing that
factor in light of “the nature of the act encouraged,” see id.,providing financial assistance and exposure to—to put it
mildly—a dangerous group, is sufficient for state of mind to
weigh against Google. As I see it, the conduct of Google,
Twitter, and Facebook as related to the risks of terrorist
attacks by ISIS, absent their more active review and policing
of sites, is either recklessly indifferent or willfully blind, as
they enjoy increased advertising revenue associated with
eyeballs on videos or posts about ISIS attacks.
Taken as true and viewed in the light most favorable to
Plaintiffs, I would hold that these allegations establish that
Google’s assistance was sufficiently “substantial” for
purposes of § 2333(d)(2). These same considerations apply
GONZALEZ V. GOOGLE 121
in all three cases, so in each I would hold there was
substantial assistance for purposes of § 2333(d)(2).
I add a brief comment about the Clayborn v. Twitter case.
There the majority would uphold dismissal of the claims
because of its view that Plaintiffs do not plausibly allege that
ISIS “committed, planned, or authorized” the San Bernardino
attack, as is required under 18 U.S.C. § 2333(d)(2). The
majority relies on a Sixth Circuit decision, Crosby v Twitter,
Inc., 921 F.3d 617 (6th Cir. 2019), but its reasoning is not
persuasive and does not bind or even guide our circuit,
because there, the complaint produced “no allegations that
ISIS was involved with the Pulse Night Club shooting.” Id.
at 626. However, the record here is distinctly and plainly to
the contrary: The complaint expressly alleges that prior to or
during the attack, one of the perpetrators—Tashfeen
Malik—declared on her Facebook page the two shooters’
allegiance and loyalty to an ISIS leader. Two days after the
attack, ISIS issued a statement on a radio station claiming
responsibility for the attack. The FBI confirmed that one of
the shooters, a few years before the attack, had face-to-face
meetings with five people known to have “links to terrorism.”
Further, Plaintiffs allege that FBI investigators found an
explosive device placed at the crime scene that was likely
intended to be detonated by the arrival of first responders. A
Department of Justice report described this as “a frequent,
well documented practice in international terrorism
incidents.” Importantly, FBI investigators explained that this
“terrorist tactic ha[d] been outlined in Al Qaeda’s Inspire
Magazine, as well as in ISIS’s Dabiq Magazine.” Plaintiffs
allege that these magazines are disseminated on Defendants’
platforms. Together, these allegations permit the fair
inference that the attack which was planned for at least one
year was inspired by—and implicitly authorized by—ISIS.
122 GONZALEZ V. GOOGLE
In my view, even if Malik had been “self-radicalized”
without direct communications or meetings with ISIS
operatives, Plaintiffs plausibly allege that the self-
radicalization process included exposure to the violent
recruiting videos of ISIS, along with lectures from incendiary
advocates of violence against non-believers. According to
the complaint, in Senate Judiciary Committee testimony,
then-FBI Director James Comey described the pair as having
“consum[ed] poison on the internet” and been “radicalized to
jihadism and to martyrdom via social media platforms
available to them.” Finally, even assuming the perpetrators
had little advance connection with ISIS, well-established
principles of agency law illustrate that authorization can
occur not only by advance planning, but also by ratification.
See Restatement (Third) of Agency, § 4.01(1) (1933) (defining
ratification as “the affirmance of a prior act done by another,
whereby the act is given effect as if done by an agent acting
with actual authority”).13 Because the San Bernardino
13
Contrary to the majority’s contention, there is support for applying
common law agency principles to secondary liability for acts of
international terrorism. For one thing, “statutes are presumed not to
disturb the common law, ‘unless the language of a statute [is] clear and
explicit for this purpose.’” State Eng’r of Nev. v. S. Fork Band of Te-
Moak Tribe of W. Shoshone Indians of Nev., 339 F.3d 804, 814 (9th Cir.
2003) (quoting Norfolk Redevelopment & Hous. Auth. v. Chesapeake &
Potomac Tel. Co. of Va., 464 U.S. 30, 35 (1983)). In my view, nothing in
the statute precludes consideration of common law principles. Second, the
Supreme Court has stated that apparent authority principles “ha[ve] long
been the settled rule in the federal system.” Am. Soc’y of Mechanical
Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 567 (1982). Section
2333(d)(2) assigns liability for injuries arising from acts of international
terrorism, where that act was authorized by a terrorist organization. See
18 U.S.C. § 2333(d)(2). In my view, asking whether a terrorist
organization authorized a particular terrorist act is properly viewed under
GONZALEZ V. GOOGLE 123
shooters pledged themselves to ISIS before or during the
attack, and an act is ratifiable “if the actor acted or purported
to act as an agent on the person’s behalf,” id. § 4.03, the
attack can be considered authorized by ISIS.
For the foregoing reasons, the complaint in Clayborn
makes allegations sufficient to state a claim for liability under
the ATA.
V
In my view, the claims asserted in the three complaints on
appeal should all be sustained and permitted to go forward in
discovery based on the statutory law standards above
discussed. But even if I am incorrect in my view of the
governing statutory law, those claims should be able to go
forward with complaint amendment based on a still extant
specialized federal common law in aid of national security
against terrorism. After the general common law regime of
Swift v. Tyson was overruled by Erie, a sphere of specialized
federal common law remains and could support Plaintiffs’
claims here. See e.g., 19 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 4514 (3d ed. 2021).
As the Wright & Miller treatise explains, “the federal
common law that has developed since Erie differs from the
federal general common law [rejected in] Swift v. Tyson
because it falls within an area of federal or national
competence.” Id. (footnote omitted); see also 17A Moore’s
Federal Practice, Civil § 124.40 (2020). Many federal court
precedents have applied these principles, which are
particularly well-suited when claims involve an area of
the common-law agency framework as a question of whether the
perpetrator was acting as an agent of the terrorist organization.
124 GONZALEZ V. GOOGLE
heightened federal interest, such as international terrorism, or
when gaps exist in a federal regulatory scheme. E.g., Boyle
v. United Techs. Corp., 487 U.S. 500, 507–08 (1988); Textile
Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448,
456–57 (1957); King Jewelry, Inc. v. Fed. Express Corp.,
316 F.3d 961, 964–65 (9th Cir. 2003).14
Also, our court should not ignore other potential areas of
human conduct that can be negatively impacted by an
unregulated social media regime, coupled with efforts by
groups hostile to the idea of American democracy to use
social media in order to divide or terrorize our public. Areas
of particular concern include impacts of social media in
realms such as election law, the laws governing public order
and protest, and even insurrection.
We should not of course ignore the tremendous, indeed
almost unquantifiable, benefits to the public from social
media. Social media permits friends to stay in contact, as for
example with a club or group from high school or college,
lets people make new friends, or even lets people see or be
exposed to new sights from different parts of the world.
People met through social media, who may have different
interests, perspectives, and priorities from other social media
users, can in many cases enrich those users’ lives. Places
visited on the internet, often encouraged or directed through
social media, can serve the same benign function. But at the
14
Contrary to the majority’s contention, my view on when federal
common law may be created is narrow. Though the federal courts “are
not free to manufacture entirely new causes of action merely because the
political branches have not acted,” I believe that we can act where gaps
are present in an existing federal statutory scheme and the claim involved
is one of unique federal concern.
GONZALEZ V. GOOGLE 125
same time, benefit alone cannot end the inquiry. Social
media activities also carry with them some risks and
detriments to the public. For example, there is no doubt that
modern pharmaceutical drugs give benefits to the public that
were impossible at earlier times and are greatly valued by
those who use them. But drugs can also have harmful
impacts and, accordingly, they are regulated by the Food &
Drug Administration. Similarly, modern aircraft help people
move from one part of our world to another with great speed
and ease, but we regulate airlines through the Federal
Aviation Administration. One could go on and on as almost
every major activity in the modern world faces some type of
federal regulation.
This regulation of the social media companies would best
be examined by congressional committees with subpoena
power and the ability to create new regulatory laws if needed
and desirable. Or the government could create a new federal
agency or Board or add powers or some supplemental
standards to an existing federal agency, leaving the regulation
of social media in part to a federal executive agency that is
committed to bringing its technical expertise and knowledge
of any areas of specialized federal concerns such as
international terrorism and threats to democracy to bear on
this issue. A specialized federal agency could call witnesses
for testimony, assist meaningfully in a congressional task to
prepare appropriate legislative guidance or prohibitions, have
investigators to look into areas of concern, establish
regulatory standards, and possibly also include an arm to
enforce the law and its standards. See, e.g., Myers v. United
States, 272 U.S. 52, 129 (1926) (recognizing congressional
authority to create federal agencies and define their scope and
jurisdiction).
126 GONZALEZ V. GOOGLE
VI
These cases, and others like them pending in the federal
courts, try for basic justice, but there is a fundamental
question whether the federal courts are best suited to deliver
it. I conclude with the following thoughts.
First, it would be preferable if the political branches of
government, the legislature or the Executive Branch, would
seriously grapple with the issue of unregulated social media
power being used to amplify or to distort views asserted by
users, and sometimes even by hostile nations using social
media to wage asymmetric warfare or to impair democracy.
But if Congress continues to sleep at the switch of social
media regulation in the face of courts broadening what
appears to have been its initial and literal language and
expressed intention under Section 230, then it must fall to the
federal courts to consider rectifying those errors itself by
providing remedies to those who are injured by dangerous
and unreasonable conduct.
Second, it would be preferable if the social media
companies monitored their own activities sufficiently to
protect the public, but in my view, to date they have not done
that. It was one thing, at the dawn of the Internet era, to give
protection to Internet companies to facilitate growth. But it
is quite another thing to provide broad immunity at a time
such as now when such companies are remarkably large and
with massive staffs and perhaps the best technical abilities.
It is not realistic to anticipate that social media companies
will self-police adequately in the face of their incentives to
maximize profits by maximizing advertising revenues, which
means increasing the eyeballs directed to their websites. The
large corporations controlling the platforms at issue in these
GONZALEZ V. GOOGLE 127
appeals can instead be expected to act in their own best
financial interest, and to me, it makes absolutely no sense to
leave such decisions to the self-interested proclamations of
CEOs or other employees of the various social media
companies.15 Society for centuries has known that it is folly
to ask the fox to guard the henhouse.
Third, the problem with a lack of social media regulation
goes even beyond the dreadfully important subject of
terrorism. Indeed, in connection with 21st-century political
elections, some commenters have expressed concerns that
social media has the ability to distort and tribalize public
opinion, to spread falsehoods as well as truth, and to funnel
like-minded news reports to groups in a way that makes them
think there are “alternative facts” or “competing realities”
that exist, rather than recognize more correctly that there are
“truth” and “lies.”16
Fourth, to the extent any of our Ninth Circuit precedent
stands in the way of a sensible resolution of claims like those
presented on appeal here, where terrorist organizations like
ISIS have obviously played Google and YouTube like a
fiddle, then in my view we should take these or other related
cases en banc to give a full review.
15
E.g., 1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES
OF THE WEALTH OF NATIONS 13 (1776) (“It is not from the benevolence
of the butcher, the brewer, or the baker that we expect our dinner, but from
their regard to their own interest.”).
16
See Ross Douthat, Why Do So Many Americans Think
the Election Was Stolen?, N.Y. TIMES (Dec. 5, 2020),
https://www.nytimes.com/2020/12/05/opinion/sunday/trump-election-
fraud.html?smid=tw-share.
128 GONZALEZ V. GOOGLE
Fifth, because the issues are difficult and only the
Supreme Court can speak with authority ultimately on federal
law, it would be desirable for the Supreme Court to take up
the subject of Section 230 immunity and perhaps any related
First Amendment issues, to the extent claims relating to
terrorist speech are properly considered under that
framework. Justice Oliver Wendell Holmes, Jr. made famous
and enshrined in our law the idea that: “The life of the law
has not been logic, it has been experience.” OLIVER
WENDELL HOLMES, JR., THE COMMON LAW, Lecture I
(1881). But when almost all claims against social media
companies are dismissed at the outset because of an
overbroad view of Section 230 immunity, how is society to
develop the experience that can guide its development of law
in a sensible way that protects people from undue harm?
Justice Holmes also developed the idea that speech should not
be constrained absent “clear and present danger,” see Schenck
v. United States, 249 U.S. 47 (1919). To some degree this
test still resounds in our First Amendment law. See United
States v. Alvarez, 617 F.3d 1198, 1214 (9th Cir. 2010). A
variation on this view culminated in Brandenburg v. Ohio,
395 U.S. 444 (1969), where the Supreme Court suggested that
imminent lawless action was necessary before speech should
be constrained. But perhaps given the current state of society,
and the catastrophic dangers to the public that can be posed
by terrorist activities, public safety may require that speech
be limited when it poses a clear and increasing or gathering
danger, rather than only “imminent” danger as reflected in
Brandenburg, which I consider the Supreme Court’s last
word on this subject.
GONZALEZ V. GOOGLE 129
I also note that Oliver Wendell Holmes, Jr.’s famous pen
pal and intellectual collaborator, Sir Frederick Pollock,17 in
his beginning primer of the law of torts, suggested that a
principal force underlying all the varied types of tort cases
was the desire of courts to provide a doctrinal basis for
remedy in the case of injuries from harmful and unreasonable
conduct. Pollock suggested that a “tort is an act or omission
(not merely the breach of a duty arising out of a personal
relation, or undertaken by contract) which is related to harm
suffered by a determinate person in one of the following
ways.” See SIR FREDERICK POLLOCK, THE LAW OF TORTS: A
TREATISE ON THE PRINCIPLES OF OBLIGATIONS ARISING FROM
CIVIL WRONGS IN THE COMMON LAW 20 (4th ed. 1895).
Among those ways a person can be harmed were these two,
which are pertinent in assessing whether Plaintiffs’ claims
can be asserted as part of a federal common law: “(c) it may
be an act or omission causing harm which the person so
acting or so omitting did not intend to cause, but might and
should with due diligence have foreseen and prevented,” and
“(d) it may in special cases consist in not avoiding or
preventing that which the party was bound, absolutely or
within limits to avoid or prevent.” Id. Here, it could be
expected that through federal common law development or
statutory positive law, the social media companies will be
held to some reasonable standard of conduct when they have
17
See Oliver Wendell Holmes Jr. & Sir Frederick Pollock,
Holmes–Pollock Letters: The Correspondence of Mr Justice Holmes and
Sir Frederick Pollock, 1874–1932 (2d ed. 1961).
130 GONZALEZ V. GOOGLE
failed to regulate their own actions in the interests of the
public.18
As a matter of federal common law, I would hold that
when social media companies in their platforms use systems
or procedures that are unreasonably dangerous to the
public—as in the case where their systems line up repeated
messages in aid of terrorists like ISIS—or when they omit to
act to avoid harm when omitting the act is unreasonably
dangerous to the public—as in the case where they fail to
review and self-regulate their websites adequately to notice
and remove propaganda videos from ISIS that are likely to
cause harm—then there should be a federal common law
claim available against them. Consider the most widely used
standard for products liability cases. See Restatement
(Second) of Torts, § 402A (1965). This suggests that
manufacturers are responsible in tort if they make
unreasonably dangerous products that cause individual or
social harm. Section 402A states: “One who sells any
product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability
for physical harm thereby caused” to the user or a third party.
Id. Here and similarly, social media companies should be
viewed as making and “selling” their social media products
through the device of forced advertising under the eyes of
users. Viewed in this light, they should be tested under a
federal tort principle with a standard similar to and adapted
from this Restatement language under a federal common law
18
Developing federal common law on these issues will require the
diligent and combined efforts of the federal courts and of legal scholars.
See, e.g., Hon. Wade H. McCree, Jr., The Annual John Randolph Tucker
Lecture, Partners in a Process: The Academy and the Courts, 37 WASH.
& LEE. L. REV. 1041 (1981).
GONZALEZ V. GOOGLE 131
development. If social media companies use “neutral”
algorithms that cause unreasonably dangerous consequences,
under proper standards of law with limiting jury instructions,
they might be held responsible. Developing a federal
common law standard would be superior to merely dismissing
all claims against social media companies based on an over-
broad interpretation of Section 230 delivering a blanket
immunity, which in my view is inconsistent with
congressional intent and detrimental to the interests of the
general public.
132 GONZALEZ V. GOOGLE
ATTACHMENT A
ȱ
ȱ KATZMANN,ȱChiefȱJudge,ȱconcurringȱinȱpartȱandȱdissentingȱinȱpart:ȱȱ
Iȱagreeȱwithȱmuchȱofȱtheȱreasoningȱinȱtheȱexcellentȱmajorityȱopinion,ȱandȱIȱ
joinȱthatȱopinionȱexceptȱforȱPartsȱIȱandȱIIȱofȱtheȱDiscussion.ȱButȱIȱmustȱrespectfullyȱ
partȱcompanyȱwithȱtheȱmajorityȱonȱitsȱtreatmentȱofȱFacebook’sȱfriendȬȱandȱcontentȬ
suggestionȱalgorithmsȱunderȱtheȱCommunicationsȱDecencyȱActȱ(“CDA”).1ȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 1ȱIȱagreeȱwithȱtheȱmajorityȱthatȱtheȱCDA’sȱexceptionȱforȱenforcementȱofȱcriminalȱ
laws,ȱ47ȱU.S.C.ȱ§ȱ230(e)(1),ȱdoesȱnotȱapplyȱtoȱplaintiffs’ȱclaims,ȱseeȱante,ȱatȱ50Ȭ54.ȱHowever,ȱ
Iȱfindȱtheȱquestionȱtoȱbeȱsomewhatȱcloserȱthanȱtheȱmajorityȱdoes,ȱinȱpartȱbecauseȱsomeȱofȱ
theȱstatutesȱenumeratedȱinȱ§ȱ230(e)(1)ȱthemselvesȱcontainȱcivilȱremedies.ȱSectionȱ230(e)(1)ȱ
statesȱthatȱ“[n]othingȱinȱ[§ȱ230]ȱshallȱbeȱconstruedȱtoȱimpairȱtheȱenforcementȱofȱsectionȱ
223ȱ orȱ 231ȱ ofȱ thisȱ title,ȱ chapterȱ 71ȱ (relatingȱ toȱ obscenity)ȱ orȱ 110ȱ (relatingȱ toȱ sexualȱ
exploitationȱofȱchildren)ȱofȱtitleȱ18,ȱorȱanyȱotherȱFederalȱcriminalȱstatute.”ȱOneȱofȱthoseȱ
enumeratedȱchapters—Chapterȱ110ȱofȱTitleȱ18—includesȱaȱcivilȱsuitȱprovisionȱforȱvictimsȱ
ofȱ specificȱ childȱ sexȱ crimes.ȱ Seeȱ 18ȱ U.S.C.ȱ §ȱ 2255.ȱ Meanwhile,ȱ 47ȱ U.S.C.ȱ §ȱ 223—whichȱ
prohibitsȱ obsceneȱ orȱ harassingȱ phoneȱ calls—specifiesȱ thatȱ civilȱ finesȱ mayȱ beȱ leviedȱ
“pursuantȱtoȱcivilȱactionȱby,”ȱorȱ“afterȱappropriateȱadministrativeȱproceedings”ȱof,ȱtheȱ
FederalȱCommunicationsȱCommissionȱ(“FCC”),ȱandȱitȱauthorizesȱtheȱAttorneyȱGeneralȱ
toȱ bringȱ civilȱ suitsȱ toȱ enjoinȱ practicesȱ thatȱ violateȱ theȱ statute.ȱ 47ȱ U.S.C.ȱ §ȱ223(b)(5)(B)Ȭ
(b)(6).ȱ Ifȱ §ȱ 230(e)(1)ȱ coversȱ “enforcement”ȱ ofȱ theȱ listedȱ chaptersȱ inȱ theirȱ entirety,ȱ itȱ isȱ
difficultȱ toȱ seeȱ howȱ itȱ wouldȱ notȱ coverȱ otherȱ provisionsȱ thatȱ authorizeȱ civilȱ suitsȱ forȱ
violationsȱofȱcriminalȱlaws,ȱparticularlyȱgivenȱthatȱtheȱenumeratedȱlistȱisȱfollowedȱbyȱ“orȱ
anyȱotherȱcriminalȱlaw.”ȱȱ
ȱ However,ȱ asȱ detailedȱ post,ȱ §ȱ 230ȱ wasȱ designedȱ asȱ aȱ privateȬsectorȬdrivenȱ
alternativeȱ toȱ aȱ Senateȱ planȱ thatȱ wouldȱ allowȱ theȱ FCCȱ “eitherȱ civillyȱ orȱ criminally,ȱ toȱ
punishȱ people”ȱ whoȱ putȱ objectionableȱ materialȱ onȱ theȱ Internet.ȱ 141ȱ Cong.ȱ Rec.ȱ 22,045ȱ
(1995)ȱ(statementȱofȱRep.ȱCox);ȱaccordȱid.ȱatȱ22,045Ȭ46ȱ(statementȱofȱRep.ȱWyden);ȱseeȱRenoȱ
v.ȱACLU,ȱ521ȱU.S.ȱ844,ȱ859ȱ&ȱn.24ȱ(1997).ȱOnȱtheȱHouseȱfloor,ȱauthorȱChristopherȱCoxȱ
disparagedȱ theȱ ideaȱ ofȱ FCCȱ enforcementȱ andȱ thenȱ stated:ȱ “Certainly,ȱ criminalȱ
ȱ
enforcementȱofȱourȱobscenityȱlawsȱasȱanȱadjunctȱisȱaȱusefulȱwayȱofȱpunishingȱtheȱtrulyȱ
1ȱ
ȱ
Asȱ toȱ theȱ reasonsȱ forȱ myȱ disagreement,ȱ considerȱ aȱ hypothetical.ȱ Supposeȱ
thatȱyouȱareȱaȱpublishedȱauthor.ȱOneȱday,ȱanȱacquaintanceȱcalls.ȱ“I’veȱbeenȱreadingȱ
overȱeverythingȱyou’veȱeverȱpublished,”ȱheȱinformsȱyou.ȱ“I’veȱalsoȱbeenȱlookingȱ
atȱeverythingȱyou’veȱeverȱsaidȱonȱtheȱInternet.ȱI’veȱdoneȱtheȱsameȱforȱthisȱotherȱ
author.ȱ Youȱ twoȱ haveȱ veryȱ similarȱ interests;ȱ Iȱ thinkȱ you’dȱ getȱ along.”ȱ Theȱ
acquaintanceȱ thenȱ givesȱ youȱ theȱ otherȱ author’sȱ contactȱ informationȱ andȱ photo,ȱ
alongȱwithȱaȱlinkȱtoȱallȱherȱpublishedȱworks.ȱHeȱcallsȱbackȱthreeȱmoreȱtimesȱoverȱ
theȱnextȱweekȱwithȱmoreȱnamesȱofȱwritersȱyouȱshouldȱgetȱtoȱknow.ȱȱ
Now,ȱyouȱmightȱsayȱyourȱacquaintanceȱfanciesȱhimselfȱaȱmatchmaker.ȱButȱ
wouldȱyouȱsayȱhe’sȱactingȱasȱtheȱpublisherȱofȱtheȱotherȱauthors’ȱwork?ȱ
Facebookȱ andȱ theȱ majorityȱ wouldȱ haveȱ usȱ answerȱ thisȱ questionȱ “yes.”ȱ I,ȱ
however,ȱcannotȱdoȱso.ȱForȱtheȱscenarioȱIȱhaveȱjustȱdescribedȱisȱlittleȱdifferentȱfromȱ
howȱFacebook’sȱalgorithmsȱallegedlyȱwork.ȱAndȱwhileȱthoseȱalgorithmsȱdoȱendȱ
upȱshowingȱusersȱprofile,ȱgroup,ȱorȱeventȱpagesȱwrittenȱbyȱotherȱusers,ȱitȱstrainsȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
guilty.”ȱ141ȱCong.ȱRec.ȱ22,045ȱ(emphasisȱadded).ȱThisȱhistory,ȱalongȱwithȱtheȱprovision’sȱ
title,ȱstronglyȱsuggestsȱthatȱ§ȱ230(e)(1)ȱwasȱintendedȱasȱaȱnarrowȱcriminalȬlawȱexception.ȱ
Itȱwouldȱbeȱodd,ȱthen,ȱtoȱreadȱ §ȱ230(e)(1)ȱasȱallowingȱforȱcivilȱenforcementȱby,ȱamongȱ
ȱothers,ȱtheȱFCC,ȱevenȱifȱonlyȱinȱaidȱofȱcriminalȱlawȱenforcement.ȱ
2ȱ
ȱ
theȱEnglishȱlanguageȱtoȱsayȱthatȱinȱtargetingȱandȱrecommendingȱtheseȱwritingsȱtoȱ
users—andȱ therebyȱ forgingȱ connections,ȱ developingȱ newȱ socialȱ networks—
Facebookȱ isȱ actingȱ asȱ “theȱ publisherȱ ofȱ .ȱ .ȱ .ȱ informationȱ providedȱ byȱ anotherȱ
informationȱcontentȱprovider.”ȱ47ȱU.S.C.ȱ§ȱ230(c)(1)ȱ(emphasisȱadded).ȱȱ
Itȱ wouldȱ beȱ oneȱ thingȱ ifȱ congressionalȱ intentȱ compelledȱ usȱ toȱ adoptȱ theȱ
majority’sȱ reading.ȱ Itȱ doesȱ not.ȱ Instead,ȱ weȱ todayȱ extendȱ aȱ provisionȱ thatȱ wasȱ
designedȱtoȱencourageȱcomputerȱserviceȱprovidersȱtoȱshieldȱminorsȱfromȱobsceneȱ
materialȱsoȱthatȱitȱnowȱimmunizesȱthoseȱsameȱprovidersȱforȱallegedlyȱconnectingȱ
terroristsȱtoȱoneȱanother.ȱNeitherȱtheȱimpetusȱforȱnorȱtheȱtextȱofȱ§ȱ230(c)(1)ȱrequiresȱ
suchȱaȱresult.ȱWhenȱaȱplaintiffȱbringsȱaȱclaimȱthatȱisȱbasedȱnotȱonȱtheȱcontentȱofȱtheȱ
informationȱ shownȱ butȱ ratherȱ onȱ theȱ connectionsȱ Facebook’sȱ algorithmsȱ makeȱ
betweenȱindividuals,ȱtheȱCDAȱdoesȱnotȱandȱshouldȱnotȱbarȱrelief.ȱȱ
TheȱAntiȬTerrorismȱActȱ(“ATA”)ȱclaimsȱinȱthisȱcaseȱfitȱthisȱbill.ȱAccordingȱ
toȱplaintiffs’ȱProposedȱSecondȱAmendedȱComplaintȱ(“PSAC”)—whichȱweȱmustȱ
takeȱ asȱ trueȱ atȱ thisȱ earlyȱ stage—Facebookȱ hasȱ developedȱ “sophisticatedȱ
algorithm[s]”ȱ forȱ bringingȱ itsȱ usersȱ together.ȱ App’xȱ 347ȱ ¶ȱ 622.ȱ Afterȱ collectingȱ
mountainsȱ ofȱ dataȱ aboutȱ eachȱ user’sȱ activityȱ onȱ andȱ offȱ itsȱ platform,ȱ Facebookȱ
3ȱ
ȱ
ȱ
unleashesȱitsȱalgorithmsȱtoȱgenerateȱfriend,ȱgroup,ȱandȱeventȱsuggestionsȱbasedȱ
onȱwhatȱitȱperceivesȱtoȱbeȱtheȱuser’sȱinterests.ȱId.ȱatȱ345Ȭ46ȱ¶¶ȱ608Ȭ14.ȱIfȱaȱuserȱpostsȱ
aboutȱaȱHamasȱattackȱorȱsearchesȱforȱinformationȱaboutȱaȱHamasȱleader,ȱFacebookȱ
mayȱ“suggest”ȱthatȱthatȱuserȱbecomeȱfriendsȱwithȱHamasȱterroristsȱonȱFacebookȱ
orȱ joinȱ HamasȬrelatedȱ Facebookȱ groups.ȱ Byȱ “facilitat[ing]ȱ [Hamas’s]ȱ abilityȱ toȱ
reachȱ andȱ engageȱ anȱ audienceȱ itȱ couldȱ notȱ otherwiseȱ reachȱ asȱ effectively,”ȱ
plaintiffsȱ allegeȱ thatȱ Facebook’sȱ algorithmsȱ provideȱ materialȱ supportȱ andȱ
personnelȱtoȱterrorists.ȱId.ȱatȱ347ȱ¶ȱ622;ȱseeȱid.ȱatȱ352Ȭ58ȱ¶¶ȱ646Ȭ77.ȱAsȱappliedȱtoȱtheȱ
algorithms,ȱplaintiffs’ȱclaimsȱdoȱnotȱseekȱtoȱpunishȱFacebookȱforȱtheȱcontentȱothersȱ
post,ȱ forȱ decidingȱ whetherȱ toȱ publishȱ thirdȱ parties’ȱ content,ȱ orȱ forȱ editingȱ (orȱ
failingȱtoȱedit)ȱothers’ȱcontentȱbeforeȱpublishingȱit.ȱInȱshort,ȱtheyȱdoȱnotȱrelyȱonȱ
treatingȱFacebookȱasȱ“theȱpublisher”ȱofȱothers’ȱinformation.ȱInstead,ȱtheyȱwouldȱ
holdȱFacebookȱliableȱforȱitsȱaffirmativeȱroleȱinȱbringingȱterroristsȱtogether.ȱ
WhenȱitȱcomesȱtoȱFacebook’sȱalgorithms,ȱthen,ȱplaintiffs’ȱcausesȱofȱactionȱdoȱ
notȱrunȱafoulȱofȱtheȱCDA.ȱBecauseȱtheȱcourtȱbelowȱdidȱnotȱpassȱonȱtheȱmeritsȱofȱ
theȱATAȱclaimsȱpressedȱbelow,ȱIȱwouldȱsendȱthisȱcaseȱbackȱtoȱtheȱdistrictȱcourtȱtoȱ
decideȱtheȱmeritsȱinȱtheȱfirstȱinstance.ȱTheȱmajority,ȱhowever,ȱcutsȱoffȱallȱpossibilityȱ
4ȱ
ȱ
ȱ
forȱ reliefȱ basedȱ onȱ algorithmsȱ likeȱ Facebook’s,ȱ evenȱ ifȱ theseȱ orȱ futureȱ plaintiffsȱ
couldȱproveȱaȱsufficientȱnexusȱbetweenȱthoseȱalgorithmsȱandȱtheirȱinjuries.ȱInȱlightȱ
ofȱ today’sȱ decisionȱ andȱ otherȱ judicialȱ interpretationsȱ ofȱ theȱ statuteȱ thatȱ haveȱ
generallyȱimmunizedȱsocialȱmediaȱcompanies—andȱespeciallyȱinȱlightȱofȱtheȱnewȱ
realityȱthatȱhasȱevolvedȱsinceȱtheȱCDA’sȱpassage—Congressȱmayȱwishȱtoȱrevisitȱ
theȱ CDAȱ toȱ betterȱ calibrateȱ theȱ circumstancesȱ whereȱ suchȱ immunizationȱ isȱ
appropriateȱandȱinappropriateȱinȱlightȱofȱcongressionalȱpurposes.ȱ
I. ȱ
ToȱseeȱhowȱfarȱweȱhaveȱstrayedȱfromȱtheȱpathȱonȱwhichȱCongressȱsetȱusȱout,ȱ
weȱmustȱconsiderȱwhereȱthatȱpathȱbegan.ȱWhatȱisȱnowȱ47ȱU.S.C.ȱ§ȱ230ȱwasȱaddedȱ
asȱanȱamendmentȱtoȱtheȱTelecommunicationsȱActȱofȱ1996,ȱaȱstatuteȱdesignedȱtoȱ
deregulateȱandȱencourageȱinnovationȱinȱtheȱtelecommunicationsȱindustry.ȱPub.ȱL.ȱ
104Ȭ104,ȱ§ȱ509,ȱ110ȱStat.ȱ56,ȱ56,ȱ137Ȭ39;ȱseeȱReno,ȱ521ȱU.S.ȱatȱ857.ȱCongressȱdevotedȱ
muchȱ committeeȱ attentionȱ toȱ traditionalȱ telephoneȱ andȱ broadcastȱ media;ȱ byȱ
contrast,ȱ theȱ Internetȱ wasȱ anȱ afterthought,ȱ addressedȱ onlyȱ throughȱ floorȱ
amendmentsȱorȱinȱconference.ȱReno,ȱ521ȱU.S.ȱatȱ857Ȭ58.ȱOfȱtheȱmyriadȱissuesȱtheȱ
emergingȱInternetȱimplicated,ȱCongressȱtackledȱonlyȱone:ȱtheȱeaseȱwithȱwhichȱtheȱ
5ȱ
ȱ
ȱ
Internetȱ deliversȱ indecentȱ orȱ offensiveȱ material,ȱ especiallyȱ toȱ minors.ȱ Seeȱ
TelecommunicationsȱActȱofȱ1996,ȱtit.ȱV,ȱsubtit.ȱA,ȱ110ȱStat.ȱatȱ133Ȭ39.ȱAndȱ§ȱ230ȱ
providedȱoneȱofȱtwoȱalternativeȱwaysȱofȱhandlingȱthisȱproblem.ȱ
TheȱactionȱbeganȱinȱtheȱSenate.ȱSenatorȱJamesȱJ.ȱExonȱintroducedȱtheȱCDAȱ
onȱFebruaryȱ1,ȱ1995.ȱSeeȱ141ȱCong.ȱRec.ȱ3,203.ȱHeȱpresentedȱaȱrevisedȱbillȱonȱJuneȱ
9,ȱ1995,ȱ“[t]heȱheartȱandȱtheȱsoul”ȱofȱwhichȱwasȱ“itsȱprotectionȱforȱfamiliesȱandȱ
children.”ȱId.ȱatȱ15,503ȱ(statementȱofȱSen.ȱExon).ȱTheȱExonȱAmendmentȱsoughtȱtoȱ
reduceȱ theȱ proliferationȱ ofȱ pornographyȱ andȱ otherȱ obsceneȱ materialȱ onlineȱ byȱ
subjectingȱ toȱ civilȱ andȱ criminalȱ penaltiesȱ thoseȱ whoȱ useȱ interactiveȱ computerȱ
servicesȱtoȱmake,ȱsolicit,ȱorȱtransmitȱoffensiveȱmaterial.ȱId.ȱatȱ15,505.ȱ
ȱ TheȱHouseȱofȱRepresentativesȱhadȱtheȱsameȱgoal—toȱprotectȱchildrenȱfromȱ
inappropriateȱ onlineȱ material—butȱ aȱ veryȱ differentȱ senseȱ ofȱ howȱ toȱ achieveȱ it.ȱ
Congressmenȱ Christopherȱ Coxȱ (RȬCalifornia)ȱ andȱ Ronȱ Wydenȱ (DȬOregon)ȱ
introducedȱ anȱ amendmentȱ toȱ theȱ Telecommunicationsȱ Act,ȱ entitledȱ “Onlineȱ
FamilyȱEmpowerment,”ȱaboutȱtwoȱmonthsȱafterȱtheȱrevisedȱCDAȱappearedȱinȱtheȱ
Senate.ȱ Seeȱ id.ȱ atȱ 22,044.ȱ Makingȱ theȱ argumentȱ forȱ theirȱ amendmentȱ duringȱ theȱ
Houseȱfloorȱdebate,ȱCongressmanȱCoxȱstated:ȱ
6ȱ
ȱ
ȱ
Weȱ wantȱ toȱ makeȱ sureȱ thatȱ everyoneȱ inȱ Americaȱ hasȱ anȱ openȱ
invitationȱandȱfeelsȱwelcomeȱtoȱparticipateȱinȱtheȱInternet.ȱButȱasȱyouȱ
know,ȱthereȱisȱsomeȱreasonȱforȱpeopleȱtoȱbeȱwaryȱbecause,ȱasȱaȱTimeȱ
Magazineȱcoverȱstoryȱrecentlyȱhighlighted,ȱthereȱisȱinȱthisȱvastȱworldȱ
ofȱ computerȱ information,ȱ aȱ literalȱ computerȱ library,ȱ someȱ offensiveȱ
material,ȱsomeȱthingsȱinȱtheȱbookstore,ȱifȱyouȱwill,ȱthatȱourȱchildrenȱ
oughtȱnotȱtoȱsee.ȱ
ȱ
Asȱtheȱparentȱofȱtwo,ȱIȱwantȱtoȱmakeȱsureȱthatȱmyȱchildrenȱhaveȱaccessȱ
toȱthisȱfutureȱandȱthatȱIȱdoȱnotȱhaveȱtoȱworryȱaboutȱwhatȱtheyȱmightȱ
beȱrunningȱintoȱonȱline.ȱIȱwouldȱlikeȱtoȱkeepȱthatȱoutȱofȱmyȱhouseȱandȱ
offȱmyȱcomputer.ȱ
ȱ
Id.ȱatȱ22,044Ȭ45.ȱLikewise,ȱCongressmanȱWydenȱsaid:ȱ“Weȱareȱallȱagainstȱsmutȱandȱ
pornography,ȱand,ȱasȱtheȱparentsȱofȱtwoȱsmallȱcomputerȬliterateȱchildren,ȱmyȱwifeȱ
andȱ Iȱ haveȱ seenȱ ourȱ kidsȱ findȱ theirȱ wayȱ intoȱ theseȱ chatȱ roomsȱ thatȱ makeȱ theirȱ
middleȬagedȱparentsȱcringe.”ȱId.ȱatȱ22,045.ȱȱ
ȱ Asȱbothȱsponsorsȱnoted,ȱtheȱdebateȱbetweenȱtheȱHouseȱandȱtheȱSenateȱwasȱ
notȱoverȱtheȱCDA’sȱprimaryȱpurposeȱbutȱratherȱoverȱtheȱbestȱmeansȱtoȱthatȱsharedȱ
end.ȱSeeȱid.ȱ(statementȱofȱRep.ȱCox)ȱ(“Howȱshouldȱweȱdoȱthis?ȱ.ȱ.ȱ.ȱMr.ȱChairman,ȱ
whatȱweȱwantȱareȱresults.ȱWeȱwantȱtoȱmakeȱsureȱweȱdoȱsomethingȱthatȱactuallyȱ
works.”);ȱid.ȱ(statementȱofȱRep.ȱWyden)ȱ(“Soȱletȱusȱallȱstipulateȱrightȱatȱtheȱoutsetȱ
theȱimportanceȱofȱprotectingȱourȱkidsȱandȱgoingȱtoȱtheȱissueȱofȱtheȱbestȱwayȱtoȱdoȱ
it.”).ȱ Whileȱ theȱ Exonȱ Amendmentȱ wouldȱ haveȱ theȱ FCCȱ regulateȱ onlineȱ obsceneȱ
7ȱ
ȱ
ȱ
materials,ȱtheȱsponsorsȱofȱtheȱHouseȱproposalȱ“believe[d]ȱthatȱparentsȱandȱfamiliesȱ
areȱbetterȱsuitedȱtoȱguardȱtheȱportalsȱofȱcyberspaceȱandȱprotectȱourȱchildrenȱthanȱ
ourȱGovernmentȱbureaucrats.”ȱId.ȱatȱ22,045ȱ(statementȱofȱRep.ȱWyden).ȱTheyȱalsoȱ
fearedȱtheȱeffectsȱtheȱSenate’sȱapproachȱmightȱhaveȱonȱtheȱInternetȱitself.ȱSeeȱid.ȱ
(statementȱ ofȱ Rep.ȱ Cox)ȱ (“[Theȱ amendment]ȱ willȱ establishȱ asȱ theȱ policyȱ ofȱ theȱ
Unitedȱ Statesȱ thatȱ weȱ doȱ notȱ wishȱ toȱ haveȱ contentȱ regulationȱ byȱ theȱ Federalȱ
Governmentȱ ofȱ whatȱ isȱ onȱ theȱ Internet,ȱ thatȱ weȱ doȱ notȱ wishȱ toȱ haveȱ aȱ Federalȱ
ComputerȱCommissionȱwithȱanȱarmyȱofȱbureaucratsȱregulatingȱtheȱInternetȱ.ȱ.ȱ.ȱ.”).ȱ
TheȱCoxȬWydenȱAmendmentȱthereforeȱsoughtȱtoȱempowerȱinteractiveȱcomputerȱ
serviceȱ providersȱ toȱ selfȬregulate,ȱ andȱ toȱ provideȱ toolsȱ forȱ parentsȱ toȱ regulate,ȱ
children’sȱaccessȱtoȱinappropriateȱmaterial.ȱSeeȱS.ȱRep.ȱNo.ȱ104Ȭ230,ȱatȱ194ȱ(1996)ȱ
(Conf.ȱRep.);ȱ141ȱCong.ȱRec.ȱ22,045ȱ(statementȱofȱRep.ȱCox).ȱ
ȱ Thereȱwasȱonlyȱoneȱproblemȱwithȱthisȱapproach,ȱasȱtheȱHouseȱsponsorsȱsawȱ
it.ȱAȱNewȱYorkȱStateȱtrialȱcourtȱhadȱrecentlyȱruledȱthatȱtheȱonlineȱserviceȱProdigy,ȱ
byȱ decidingȱ toȱ removeȱ certainȱ indecentȱ materialȱ fromȱ itsȱ site,ȱ hadȱ becomeȱ aȱ
“publisher”ȱ andȱ thusȱ wasȱ liableȱ forȱ defamationȱ whenȱ itȱ failedȱ toȱ removeȱ otherȱ
objectionableȱcontent.ȱStrattonȬOakmont,ȱInc.ȱv.ȱProdigyȱServs.ȱCo.,ȱ1995ȱWLȱ323710,ȱ
8ȱ
ȱ
ȱ
atȱ *4ȱ (N.Y.ȱ Sup.ȱ Ct.ȱ Mayȱ 24,ȱ 1995)ȱ (unpublished).ȱ Theȱ authorsȱ ofȱ §ȱ 230ȱ sawȱ theȱ
StrattonȬOakmontȱdecisionȱasȱindicativeȱofȱaȱ“legalȱsystemȱ[that]ȱprovidesȱaȱmassiveȱ
disincentiveȱforȱtheȱpeopleȱwhoȱmightȱbestȱhelpȱusȱcontrolȱtheȱInternetȱtoȱdoȱso.”ȱ
141ȱCong.ȱRec.ȱ22,045ȱ(statementȱofȱRep.ȱCox).ȱCoxȬWydenȱwasȱdesigned,ȱinȱlargeȱ
part,ȱtoȱremoveȱthatȱdisincentive.ȱSeeȱS.ȱRep.ȱNo.ȱ104Ȭ230,ȱatȱ194.ȱ
ȱ TheȱHouseȱhavingȱpassedȱtheȱCoxȬWydenȱAmendmentȱandȱtheȱSenateȱtheȱ
ExonȱAmendment,ȱtheȱconferenceȱcommitteeȱhadȱbeforeȱitȱtwoȱalternativeȱvisionsȱ
forȱ counteringȱ theȱ spreadȱ ofȱ indecentȱ onlineȱ materialȱ toȱminors.ȱ Theȱcommitteeȱ
choseȱnotȱtoȱchoose.ȱCongressȱinsteadȱadoptedȱbothȱamendmentsȱasȱpartȱofȱaȱfinalȱ
CommunicationsȱDecencyȱAct.ȱSeeȱTelecommunicationsȱActȱofȱ1996,ȱ§§ȱ502,ȱ509,ȱ
110ȱStat.ȱatȱ133Ȭ39;ȱReno,ȱ521ȱU.S.ȱatȱ858ȱn.24.2ȱTheȱSupremeȱCourtȱpromptlyȱstruckȱ
downȱ twoȱ majorȱ provisionsȱ ofȱ theȱ Exonȱ Amendmentȱ asȱ unconstitutionallyȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 2ȱ Itȱ helpedȱ thatȱ theȱ CoxȬWydenȱ Amendmentȱ exemptedȱ fromȱ itsȱ deregulatoryȱ
regimeȱ theȱ veryȱ provisionsȱ thatȱ theȱ Exonȱ Amendmentȱ strengthened,ȱ seeȱ
TelecommunicationsȱActȱofȱ1996,ȱ§§ȱ502,ȱ507Ȭ508,ȱ509(d)(1),ȱ110ȱStat.ȱatȱ133Ȭ39,ȱandȱthatȱ
CongressȱstrippedȱfromȱtheȱHouseȱbillȱaȱprovisionȱthatȱwouldȱhaveȱdeniedȱjurisdictionȱ
toȱtheȱFCCȱtoȱregulateȱtheȱInternet,ȱcompareȱid.ȱ§ȱ509,ȱ110ȱStat.ȱatȱ138ȱ(eliminatingȱoriginalȱ
ȱ§ȱ509(d)),ȱwithȱ141ȱCong.ȱRec.ȱ22,044ȱ(includingȱoriginalȱ§ȱ509(d)).ȱ
9ȱ
ȱ
overbroadȱ underȱ theȱ Firstȱ Amendment,ȱ leavingȱ theȱ newȱ §ȱ 230ȱ asȱ theȱ dominantȱ
forceȱforȱsecuringȱdecencyȱonȱtheȱInternet.ȱSeeȱReno,ȱ521ȱU.S.ȱatȱ849.ȱ
ȱ Sectionȱ 230ȱ overruledȱ StrattonȬOakmontȱ throughȱ twoȱ interlockingȱ
provisions,ȱ bothȱ ofȱ whichȱ survivedȱ theȱ legislativeȱ processȱ unscathed.ȱ Theȱ first,ȱ
whichȱisȱatȱissueȱinȱthisȱcase,ȱstatesȱthatȱ“[n]oȱproviderȱorȱuserȱofȱanȱinteractiveȱ
computerȱserviceȱshallȱbeȱtreatedȱasȱtheȱpublisherȱorȱspeakerȱofȱanyȱinformationȱ
providedȱ byȱ anotherȱ informationȱ contentȱ provider.”ȱ 47ȱ U.S.C.ȱ §ȱ 230(c)(1).ȱ Theȱ
secondȱ provisionȱ eliminatesȱ liabilityȱ forȱ interactiveȱ computerȱ serviceȱ providersȱ
andȱusersȱforȱ“anyȱactionȱvoluntarilyȱtakenȱinȱgoodȱfaithȱtoȱrestrictȱaccessȱtoȱorȱ
availabilityȱofȱmaterialȱthatȱtheȱproviderȱorȱuserȱconsidersȱtoȱbeȱ.ȱ.ȱ.ȱobjectionable,”ȱ
orȱ“anyȱactionȱtakenȱtoȱenableȱorȱmakeȱavailableȱtoȱ.ȱ.ȱ.ȱothersȱtheȱtechnicalȱmeansȱ
toȱrestrictȱaccessȱtoȱ[objectionable]ȱmaterial.”ȱId.ȱ§ȱ230(c)(2).ȱTheseȱtwoȱsubsectionsȱ
tackle,ȱ inȱ overlappingȱ fashion,ȱ theȱ twoȱ jurisprudentialȱ movesȱ ofȱ theȱ StrattonȬ
Oakmontȱ court:ȱ first,ȱ thatȱ Prodigy’sȱ decisionȱ toȱ screenȱ postsȱ forȱ offensivenessȱ
renderedȱ itȱ “aȱ publisherȱ ratherȱ thanȱ aȱ distributor,”ȱ 1995ȱ WLȱ 323710,ȱ atȱ *4;ȱ andȱ
second,ȱ thatȱ byȱmakingȱ goodȬfaithȱ effortsȱ toȱ removeȱ offensiveȱ materialȱ Prodigyȱ
becameȱliableȱforȱanyȱactionableȱmaterialȱitȱdidȱnotȱremove.ȱ
10ȱ
ȱ
ȱ
ȱ Theȱlegislativeȱhistoryȱillustratesȱthatȱinȱpassingȱ§ȱ230ȱCongressȱwasȱfocusedȱ
squarelyȱonȱprotectingȱminorsȱfromȱoffensiveȱonlineȱmaterial,ȱandȱthatȱitȱsoughtȱ
toȱ doȱ soȱ byȱ “empoweringȱ parentsȱ toȱ determineȱ theȱ contentȱ ofȱ communicationsȱ
theirȱchildrenȱreceiveȱthroughȱinteractiveȱcomputerȱservices.”ȱS.ȱRep.ȱNo.ȱ104Ȭ230,ȱ
atȱ 194.ȱ Theȱ “policy”ȱ sectionȱ ofȱ §ȱ230’sȱ textȱ reflectsȱ thisȱ goal.ȱ Seeȱ 47ȱ U.S.C.ȱ
§ȱ230(b)(3)Ȭ(4).3ȱ Itȱ isȱ notȱ surprising,ȱ then,ȱ thatȱ Congressȱ emphasizedȱ theȱ narrowȱ
civilȱ liabilityȱ shieldȱ thatȱ becameȱ §ȱ230(c)(2),ȱ ratherȱ thanȱ theȱ broadȱ ruleȱ ofȱ
constructionȱlaidȱoutȱinȱ§ȱ230(c)(1).ȱIndeed,ȱtheȱconferenceȱcommitteeȱsummarizedȱ
§ȱ230ȱbyȱstatingȱthatȱitȱ“providesȱ‘GoodȱSamaritan’ȱprotectionsȱfromȱcivilȱliabilityȱ
forȱprovidersȱorȱusersȱofȱanȱinteractiveȱcomputerȱserviceȱforȱactionsȱtoȱrestrictȱorȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 3ȱTheȱpolicyȱsectionȱofȱtheȱstatuteȱalsoȱexpressesȱCongress’sȱdesireȱ“toȱpreserveȱtheȱ
vibrantȱ andȱ competitiveȱ freeȱ marketȱ thatȱ presentlyȱ existsȱ forȱ theȱ Internetȱ andȱ otherȱ
interactiveȱ computerȱ services,ȱ unfetteredȱ byȱ Federalȱ orȱ Stateȱ regulation.”ȱ 47ȱ U.S.C.ȱ
§ȱ230(b)(2).ȱ Itȱ isȱ thereforeȱ trueȱ thatȱ “Sectionȱ 230ȱ wasȱ enacted,ȱ inȱ part,ȱ toȱ maintainȱ theȱ
robustȱnatureȱofȱInternetȱcommunication.”ȱRicciȱv.ȱTeamstersȱUnionȱLocalȱ456,ȱ781ȱF.3dȱ25,ȱ
28ȱ(emphasisȱadded)ȱ(quotingȱZeranȱv.ȱAm.ȱOnline,ȱInc.,ȱ129ȱF.3dȱ327,ȱ330ȱ(4thȱCir.ȱ1997));ȱ
seeȱ ante,ȱ atȱ 24.ȱ Asȱ theȱ legislativeȱ historyȱ laidȱ outȱ inȱ thisȱ opinionȱ shows,ȱ however,ȱ oneȱ
cannotȱ fullyȱ understandȱ theȱ purposeȱ ofȱ §ȱ 230ȱ withoutȱ consideringȱ thatȱ itȱ wasȱ oneȱ
chamber’sȱproposalȱinȱaȱdisagreementȱbetweenȱtheȱtwoȱhousesȱofȱCongressȱoverȱhowȱbestȱ
toȱ shieldȱ childrenȱ fromȱ indecentȱ material,ȱ andȱ thatȱ inȱ thatȱ contestȱ theȱ Houseȱ wasȱ
principallyȱ concernedȱ withȱ twoȱ things:ȱ (1)ȱ overrulingȱ StrattonȬOakmontȱ andȱ
(2)ȱpreventingȱ“aȱFederalȱComputerȱCommissionȱwithȱanȱarmyȱofȱbureaucratsȱregulatingȱ
ȱtheȱInternet.”ȱ141ȱCong.ȱRec.ȱ22,045ȱ(statementȱofȱRep.ȱCox).ȱ
11ȱ
ȱ
toȱenableȱrestrictionȱofȱaccessȱtoȱobjectionableȱonlineȱmaterial”—aȱdescriptionȱthatȱ
couldȱjustȱasȱeasilyȱhaveȱappliedȱtoȱ§ȱ230(c)(2)ȱalone.ȱS.ȱRep.ȱNo.ȱ104Ȭ230,ȱatȱ194.ȱ
Congressȱ alsoȱ titledȱ theȱ entiretyȱ ofȱ §ȱ230(c)ȱ “Protectionȱ forȱ ‘Goodȱ Samaritan’ȱ
blockingȱandȱscreeningȱofȱoffensiveȱmaterial,”ȱsuggestingȱthatȱtheȱdefinitionalȱruleȱ
outlinedȱ inȱ §ȱ 230(c)(1)ȱ mayȱ haveȱ beenȱ envisionedȱ asȱ supportingȱ orȱ workingȱ inȱ
tandemȱwithȱtheȱcivilȱliabilityȱshieldȱinȱ§ȱ230(c)(2).ȱȱ
ȱ Noneȱofȱthisȱisȱtoȱsayȱthatȱ§ȱ230(c)(1)ȱexemptsȱinteractiveȱcomputerȱserviceȱ
providersȱ fromȱ publisherȱ treatmentȱ onlyȱ whenȱ theyȱ removeȱ indecentȱ content.ȱ
Statutoryȱ textȱ cannotȱ beȱ ignored,ȱ andȱ Congressȱ grabbedȱ aȱ bazookaȱ toȱ swatȱ theȱ
StrattonȬOakmontȱfly.ȱWhateverȱprototypicalȱsituationȱitsȱdraftersȱmayȱhaveȱhadȱinȱ
mind,ȱ §ȱ230(c)(1)ȱ doesȱ notȱ limitȱ itsȱ protectionȱ toȱ situationsȱ involvingȱ “obsceneȱ
material”ȱprovidedȱbyȱothers,ȱinsteadȱusingȱtheȱexpansiveȱwordȱ“information.”4ȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 4ȱThisȱpoint—thatȱCongressȱchoseȱbroaderȱlanguageȱthanȱmayȱhaveȱbeenȱnecessaryȱ
toȱ accomplishȱ itsȱ primaryȱ goal—shouldȱ notȱ beȱ confusedȱ withȱ theȱ Seventhȱ Circuit’sȱ
rationaleȱ forȱ§ȱ230(c)(1)’sȱgeneralȱ application:ȱ thatȱ “aȱ law’sȱ scopeȱ oftenȱ differsȱ fromȱitsȱ
genesis.”ȱSeeȱChi.ȱLawyersȱCmte.ȱforȱCivilȱRightsȱUnderȱLaw,ȱInc.ȱv.ȱCraigslist,ȱInc.,ȱ519ȱF.3dȱ
666,ȱ671ȱ(7thȱCir.ȱ2008).ȱTrueȱasȱthisȱaxiomȱmightȱbe,ȱitȱdoesȱnotȱapplyȱhere—theȱlanguageȱ
ofȱ §ȱ230(c)(1)ȱ remainedȱ untouchedȱ fromȱ introductionȱ toȱ passage.ȱ Norȱ isȱ thereȱ anyȱ
evidenceȱfromȱtheȱlegislativeȱrecordȱthatȱinterestȱgroupsȱalteredȱtheȱstatutoryȱlanguage.ȱ
Butȱ cf.ȱ id.ȱ (“Onceȱ theȱ legislativeȱ processȱ getsȱ rolling,ȱ interestȱ groupsȱ seekȱ (andȱ oftenȱ
ȱ
obtain)ȱotherȱprovisions.”).ȱThatȱ§ȱ230(c)(1)’sȱbreadthȱflowedȱfromȱCongress’sȱdesireȱtoȱ
12ȱ
ȱ
Illuminatingȱ Congress’sȱ originalȱ intentȱ does,ȱ however,ȱ underscoreȱ theȱ extentȱ ofȱ
§ȱ230(c)(1)’sȱsubsequentȱmissionȱcreep.ȱGivenȱhowȱfarȱbothȱFacebook’sȱsuggestionȱ
algorithmsȱandȱplaintiffs’ȱterrorismȱclaimsȱswimȱfromȱtheȱshoreȱofȱcongressionalȱ
purpose,ȱcautionȱisȱwarrantedȱbeforeȱcourtsȱextendȱtheȱCDA’sȱreachȱanyȱfurther.ȱ
II. ȱ
WithȱtheȱCDA’sȱbackgroundȱinȱmind,ȱIȱturnȱtoȱtheȱtext.ȱByȱitsȱplainȱterms,ȱ
§ȱ230ȱdoesȱnotȱapplyȱwheneverȱaȱclaimȱwouldȱtreatȱtheȱdefendantȱasȱ“aȱpublisher”ȱ
inȱtheȱabstract,ȱimmunizingȱdefendantsȱfromȱliabilityȱstemmingȱfromȱanyȱactivityȱ
inȱwhichȱoneȱthinksȱpublishingȱcompaniesȱcommonlyȱengage.ȱContraȱante,ȱatȱ30Ȭ
31,ȱ33Ȭ34,ȱ49.ȱItȱstates,ȱmoreȱspecifically,ȱthatȱ“[n]oȱproviderȱorȱuserȱofȱanȱinteractiveȱ
computerȱ serviceȱ shallȱ beȱ treatedȱ asȱ theȱ publisherȱ orȱ speakerȱ ofȱ anyȱ informationȱ
providedȱbyȱanotherȱinformationȱcontentȱprovider.”ȱ47ȱU.S.C.ȱ§ȱ230(c)(1)ȱ(emphasesȱ
added).ȱ “Hereȱ grammarȱ andȱ usageȱ establishȱ thatȱ ‘the’ȱ isȱ aȱ functionȱ wordȱ
indicatingȱ thatȱ aȱ followingȱ nounȱ orȱ nounȱ equivalentȱ isȱ definiteȱ .ȱ .ȱ .ȱ .”ȱ Nielsenȱ v.ȱ
Preap,ȱ139ȱS.ȱCt.ȱ954,ȱ965ȱ(2019)ȱ(citationȱandȱinternalȱquotationȱmarksȱomitted).ȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ
overruleȱStrattonȬOakmont,ȱratherȱthanȱfromȱmereȱinterestȱgroupȱprotectionism,ȱmatters.ȱ
13ȱ
ȱ
Theȱwordȱ“publisher”ȱinȱthisȱstatuteȱisȱthusȱinextricablyȱlinkedȱtoȱtheȱ“informationȱ
providedȱ byȱ another.”ȱ Theȱ questionȱ isȱ whetherȱ aȱ plaintiff’sȱ claimȱ arisesȱ fromȱ aȱ
thirdȱparty’sȱinformation,ȱand—crucially—whetherȱtoȱestablishȱtheȱclaimȱtheȱcourtȱ
mustȱnecessarilyȱviewȱtheȱdefendant,ȱnotȱasȱaȱpublisherȱinȱtheȱabstract,ȱbutȱratherȱ
asȱtheȱpublisherȱofȱthatȱthirdȬpartyȱinformation.ȱSeeȱFTCȱv.ȱLeadClickȱMedia,ȱLLC,ȱ
838ȱF.3dȱ158,ȱ175ȱ(2dȱCir.ȱ2016)ȱ(statingȱinquiryȱasȱ“whetherȱtheȱcauseȱofȱactionȱ
inherentlyȱrequiresȱtheȱcourtȱtoȱtreatȱtheȱdefendantȱasȱtheȱ‘publisherȱorȱspeaker’ȱofȱ
contentȱprovidedȱbyȱanother”).ȱ
Forȱthisȱreason,ȱ§ȱ230(c)(1)ȱdoesȱnotȱnecessarilyȱimmunizeȱdefendantsȱfromȱ
claimsȱbasedȱonȱpromotingȱcontentȱorȱsellingȱadvertising,ȱevenȱifȱthoseȱactivitiesȱ
mightȱ beȱ commonȱ amongȱ publishingȱ companiesȱ nowadays.ȱ Aȱ publisherȱ mightȱ
writeȱanȱemailȱpromotingȱaȱthirdȬpartyȱeventȱtoȱitsȱreaders,ȱforȱexample,ȱbutȱtheȱ
publisherȱ wouldȱ beȱ theȱ authorȱ ofȱ theȱ underlyingȱ contentȱ andȱ thereforeȱ notȱ
immuneȱ fromȱ suitȱ basedȱ onȱ thatȱ promotion.ȱ Seeȱ 47ȱ U.S.C.ȱ §ȱ 230(c)(1),ȱ (f)(3).ȱ
Similarly,ȱtheȱfactȱthatȱpublishersȱmayȱsellȱadvertisingȱbasedȱonȱuserȱdataȱdoesȱnotȱ
immunizeȱtheȱpublisherȱifȱsomeoneȱbringsȱaȱclaimȱbasedȱonȱtheȱpublisher’sȱsellingȱ
ofȱtheȱdata,ȱbecauseȱtheȱclaimȱwouldȱnotȱtreatȱtheȱdefendantȱasȱtheȱpublisherȱofȱaȱ
14ȱ
ȱ
ȱ
thirdȱ party’sȱ content.ȱ Cf.ȱ Oberdorfȱ v.ȱ Amazon.comȱ Inc.,ȱ No.ȱ 18Ȭ1041,ȱ 2019ȱ WLȱ
2849153,ȱatȱ*12ȱ(3dȱCir.ȱJulyȱ3,ȱ2019)ȱ(holdingȱthatȱtheȱCDAȱdoesȱnotȱbarȱclaimsȱ
againstȱAmazon.comȱ“toȱtheȱextentȱthat”ȱtheyȱ“relyȱonȱAmazon’sȱroleȱasȱanȱactorȱ
inȱtheȱsalesȱprocess,”ȱincludingȱbothȱ“selling”ȱandȱ“marketing”).ȱSectionȱ230(c)(1)ȱ
limitsȱliabilityȱbasedȱonȱtheȱfunctionȱtheȱdefendantȱperforms,ȱnotȱitsȱidentity.ȱ
Accordingly,ȱourȱprecedentȱdoesȱnotȱgrantȱpublishersȱCDAȱimmunityȱforȱ
theȱfullȱrangeȱofȱactivitiesȱinȱwhichȱtheyȱmightȱengage.ȱRather,ȱitȱ“barsȱlawsuitsȱ
seekingȱtoȱholdȱaȱserviceȱproviderȱliableȱforȱitsȱexerciseȱofȱaȱpublisher’sȱtraditionalȱ
editorialȱfunctions—suchȱasȱdecidingȱwhetherȱtoȱpublish,ȱwithdraw,ȱpostponeȱorȱ
alterȱ content”ȱ providedȱ byȱ anotherȱ forȱ publication.ȱ LeadClick,ȱ 838ȱ F.3dȱ atȱ 174ȱ
(citationȱandȱinternalȱquotationȱmarksȱomitted);ȱaccordȱOberdorf,ȱ2019ȱWLȱ2849153,ȱ
atȱ*10;ȱJaneȱDoeȱNo.ȱ1ȱv.ȱBackpage.com,ȱLLC,ȱ817ȱF.3dȱ12,ȱ19ȱ(1stȱCir.ȱ2016);ȱJonesȱv.ȱ
Dirtyȱ Worldȱ Entm’tȱ Recordingsȱ LLC,ȱ 755ȱ F.3dȱ 398,ȱ 407ȱ (6thȱ Cir.ȱ 2014);ȱ Barnesȱ v.ȱ
Yahoo!,ȱInc.,ȱ570ȱF.3dȱ1096,ȱ1102ȱ(9thȱCir.ȱ2009);ȱZeran,ȱ129ȱF.3dȱatȱ330;ȱseeȱKlaymanȱ
v.ȱZuckerberg,ȱ753ȱF.3dȱ1354,ȱ1359ȱ(D.C.ȱCir.ȱ2014);ȱBenȱEzra,ȱWeinstein,ȱ&ȱCo.,ȱInc.ȱv.ȱ
Am.ȱOnlineȱInc.,ȱ206ȱF.3dȱ980,ȱ986ȱ(10thȱCir.ȱ2000).ȱForȱinstance,ȱaȱclaimȱagainstȱaȱ
newspaperȱbasedȱonȱtheȱcontentȱofȱaȱclassifiedȱadȱ(orȱtheȱdecisionȱtoȱpublishȱorȱ
15ȱ
ȱ
ȱ
withdrawȱthatȱad)ȱwouldȱfailȱunderȱtheȱCDAȱnotȱbecauseȱnewspapersȱtraditionallyȱ
publishȱclassifiedȱads,ȱbutȱratherȱbecauseȱsuchȱaȱclaimȱwouldȱnecessarilyȱtreatȱtheȱ
newspaperȱasȱtheȱpublisherȱofȱtheȱadȬmaker’sȱcontent.ȱSimilarly,ȱtheȱnewspaperȱ
doesȱnotȱactȱasȱanȱ“informationȱcontentȱprovider”—andȱthusȱmaintainsȱitsȱCDAȱ
protection—whenȱitȱdecidesȱtoȱrunȱaȱclassifiedȱadȱbecauseȱitȱneitherȱ“creates”ȱnorȱ
“develops”ȱtheȱinformationȱinȱtheȱad.ȱ47ȱU.S.C.ȱ§ȱ230(f)(3).ȱȱ
Thisȱ caseȱ isȱ different.ȱ Lookingȱ beyondȱ Facebook’sȱ “broadȱ statementsȱ ofȱ
immunity”ȱandȱrelyingȱ“ratherȱonȱaȱcarefulȱexegesisȱofȱtheȱstatutoryȱlanguage,”ȱ
Barnes,ȱ570ȱF.3dȱatȱ1100,ȱtheȱCDAȱdoesȱnotȱprotectȱFacebook’sȱfriendȬȱandȱcontentȬ
suggestionȱalgorithms.ȱAȱcombinationȱofȱtwoȱfactors,ȱinȱmyȱview,ȱconfirmsȱthatȱ
claimsȱbasedȱonȱtheseȱalgorithmsȱdoȱnotȱinherentlyȱtreatȱFacebookȱasȱtheȱpublisherȱ
ofȱ thirdȬpartyȱ content.5ȱ First,ȱ Facebookȱ usesȱ theȱ algorithmsȱ toȱ createȱ andȱ
communicateȱitsȱownȱmessage:ȱthatȱitȱthinksȱyou,ȱtheȱreader—you,ȱspecifically—
willȱ likeȱ thisȱ content.ȱ Andȱ second,ȱ Facebook’sȱ suggestionsȱ contributeȱ toȱ theȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 5ȱManyȱofȱFacebook’sȱalgorithmsȱmentionedȱinȱtheȱPSAC,ȱsuchȱasȱitsȱthirdȬpartyȱ
advertisingȱalgorithm,ȱitsȱalgorithmȱthatȱplacesȱcontentȱinȱaȱuser’sȱnewsfeed,ȱandȱ(basedȱ
onȱ theȱ limitedȱ descriptionȱ inȱ theȱ PSAC)ȱ itsȱ videoȱ recommendationȱ algorithm,ȱ remainȱ
ȱimmuneȱunderȱtheȱanalysisȱIȱsetȱoutȱhere.ȱ
16ȱ
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creationȱofȱrealȬworldȱsocialȱnetworks.ȱTheȱresultȱofȱatȱleastȱsomeȱsuggestionsȱisȱ
notȱ justȱ thatȱ theȱ userȱ consumesȱ aȱ thirdȱ party’sȱ content.ȱ Sometimes,ȱ Facebook’sȱ
suggestionsȱallegedlyȱleadȱtheȱuserȱtoȱbecomeȱpartȱofȱaȱuniqueȱglobalȱcommunity,ȱ
theȱcreationȱandȱmaintenanceȱofȱwhichȱgoesȱfarȱbeyondȱandȱdiffersȱinȱkindȱfromȱ
traditionalȱeditorialȱfunctions.ȱ
Itȱisȱtrue,ȱasȱtheȱmajorityȱnotes,ȱseeȱante,ȱatȱ47,ȱthatȱFacebook’sȱalgorithmsȱ
relyȱ onȱ andȱ displayȱ users’ȱ content.ȱ However,ȱ thisȱ isȱ notȱ enoughȱ toȱ triggerȱ theȱ
protectionsȱofȱ§ȱ230(c)(1).ȱTheȱCDAȱdoesȱnotȱmandateȱ“aȱ‘butȬfor’ȱtestȱthatȱwouldȱ
provideȱimmunityȱ.ȱ.ȱ.ȱsolelyȱbecauseȱaȱcauseȱofȱactionȱwouldȱnotȱotherwiseȱhaveȱ
accruedȱ butȱ forȱ theȱ thirdȬpartyȱ content.”ȱ HomeAway.com,ȱ Inc.ȱ v.ȱ Cityȱ ofȱ Santaȱ
Monica,ȱ918ȱF.3dȱ676,ȱ682ȱ(9thȱCir.ȱ2019).ȱRather,ȱtoȱfallȱwithinȱ§ȱ230(c)(1)’sȱradius,ȱ
theȱclaimȱatȱissueȱmustȱinherentlyȱfaultȱtheȱdefendant’sȱactivityȱasȱtheȱpublisherȱofȱ
specificȱ thirdȬpartyȱ content.ȱ Plaintiffs’ȱ claimsȱ aboutȱ Facebook’sȱ suggestionȱ
algorithmsȱdoȱnotȱdoȱthis.ȱTheȱcomplaintȱallegesȱthatȱ“Facebookȱcollectsȱdetailedȱ
informationȱ aboutȱ itsȱ users,ȱ including,ȱ interȱ alia,ȱ theȱ contentȱ theyȱ post,ȱ typeȱ ofȱ
contentȱ theyȱ viewȱ orȱ engageȱ with,ȱ peopleȱ theyȱ communicateȱ with,ȱ groupsȱ theyȱ
belongȱtoȱandȱhowȱtheyȱinteractȱwithȱsuchȱgroups,ȱvisitsȱtoȱthirdȱpartyȱwebsites,ȱ
17ȱ
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appsȱandȱFacebookȱpartners.”ȱApp’xȱ345ȱ¶ȱ608.ȱThenȱtheȱalgorithmsȱ“utilizeȱtheȱ
collectedȱdataȱtoȱsuggestȱfriends,ȱgroups,ȱproducts,ȱservicesȱandȱlocalȱevents,ȱandȱ
targetȱads”ȱbasedȱonȱeachȱuser’sȱinput.ȱId.ȱatȱ346ȱ¶ȱ610.ȱȱ
Ifȱ aȱ thirdȱ partyȱ gotȱ accessȱ toȱ Facebookȱ users’ȱ data,ȱ analyzedȱ itȱ usingȱ aȱ
proprietaryȱalgorithm,ȱandȱsentȱitsȱownȱmessagesȱtoȱFacebookȱusersȱsuggestingȱ
thatȱpeopleȱbecomeȱfriendsȱorȱattendȱoneȱanother’sȱevents,ȱtheȱthirdȱpartyȱwouldȱ
notȱbeȱprotectedȱasȱ“theȱpublisher”ȱofȱtheȱusers’ȱinformation.ȱSimilarly,ȱifȱFacebookȱ
wereȱtoȱuseȱtheȱalgorithmsȱtoȱtargetȱitsȱownȱmaterialȱtoȱparticularȱusers,ȱsuchȱthatȱ
theȱresultingȱpostsȱconsistedȱofȱ“informationȱprovidedȱby”ȱFacebookȱratherȱthanȱ
byȱ “anotherȱ informationȱ contentȱ provider,”ȱ §ȱ230(c)(1),ȱ Facebookȱ clearlyȱ wouldȱ
notȱbeȱimmuneȱforȱthatȱindependentȱmessage.ȱ
Yetȱ thatȱ isȱ ultimatelyȱ whatȱ plaintiffsȱ allegeȱ Facebookȱ isȱ doing.ȱ Theȱ PSACȱ
allegesȱthatȱFacebookȱ“activelyȱprovidesȱ‘friendȱsuggestions’ȱbetweenȱusersȱwhoȱ
haveȱexpressedȱsimilarȱinterests,”ȱandȱthatȱitȱ“activelyȱsuggestsȱgroupsȱandȱeventsȱ
toȱusers.”ȱApp’xȱ346ȱ¶¶ȱ612Ȭ13.ȱFacebook’sȱalgorithmsȱthusȱallegedlyȱprovideȱtheȱ
userȱwithȱaȱmessageȱfromȱFacebook.ȱFacebookȱisȱtellingȱusers—perhapsȱimplicitly,ȱ
butȱclearly—thatȱtheyȱwouldȱlikeȱtheseȱpeople,ȱgroups,ȱorȱevents.ȱInȱthisȱrespect,ȱ
18ȱ
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Facebookȱ“doesȱnotȱmerelyȱprovideȱaȱframeworkȱthatȱcouldȱbeȱutilizedȱforȱproperȱ
orȱimproperȱpurposes;ȱrather,ȱ[Facebook’s]ȱworkȱinȱdeveloping”ȱtheȱalgorithmȱandȱ
suggestingȱ connectionsȱ toȱ usersȱ basedȱ onȱ theirȱ priorȱ activityȱ onȱ Facebook,ȱ
includingȱ theirȱ sharedȱ interestȱ inȱ terrorism,ȱ “isȱ directlyȱ relatedȱ toȱ theȱ allegedȱ
illegalityȱofȱtheȱsite.”ȱFairȱHousingȱCouncilȱofȱSanȱFernandoȱValleyȱv.ȱRoommates.Com,ȱ
LLC,ȱ 521ȱ F.3dȱ 1157,ȱ 1171ȱ (9thȱ Cir.ȱ 2008)ȱ (enȱ banc).ȱ Theȱ factȱ thatȱ Facebookȱ alsoȱ
publishesȱthirdȬpartyȱcontentȱshouldȱnotȱcauseȱusȱtoȱconflateȱitsȱtwoȱseparateȱrolesȱ
withȱrespectȱtoȱitsȱusersȱandȱtheirȱinformation.ȱFacebookȱmayȱbeȱimmuneȱunderȱ
theȱ CDAȱ fromȱ plaintiffs’ȱ challengeȱ toȱ itsȱ allowanceȱ ofȱ Hamasȱ accounts,ȱ sinceȱ
FacebookȱactsȱsolelyȱasȱtheȱpublisherȱofȱtheȱHamasȱusers’ȱcontent.ȱThatȱdoesȱnotȱ
mean,ȱthough,ȱthatȱitȱisȱalsoȱimmuneȱwhenȱitȱconductsȱstatisticalȱanalysesȱofȱthatȱ
informationȱandȱdeliversȱaȱmessageȱbasedȱonȱthoseȱanalyses.ȱ
Moreover,ȱinȱpartȱthroughȱitsȱuseȱofȱfriend,ȱgroup,ȱandȱeventȱsuggestions,ȱ
Facebookȱ isȱ doingȱ moreȱ thanȱ justȱ publishingȱ content:ȱ itȱ isȱ proactivelyȱ creatingȱ
networksȱofȱpeople.ȱItsȱalgorithmsȱforgeȱrealȬworldȱ(ifȱdigital)ȱconnectionsȱthroughȱ
friendȱandȱgroupȱsuggestions,ȱandȱtheyȱattemptȱtoȱcreateȱsimilarȱconnectionsȱinȱ
theȱ physicalȱ worldȱ throughȱ eventȱ suggestions.ȱ Theȱ cumulativeȱ effectȱ ofȱ
19ȱ
ȱ
ȱ
recommendingȱseveralȱfriends,ȱorȱseveralȱgroupsȱorȱevents,ȱhasȱanȱimpactȱgreaterȱ
thanȱtheȱsumȱofȱeachȱsuggestion.ȱItȱenvelopsȱtheȱuser,ȱimmersingȱherȱinȱanȱentireȱ
universeȱfilledȱwithȱpeople,ȱideas,ȱandȱeventsȱsheȱmayȱneverȱhaveȱdiscoveredȱonȱ
herȱ own.ȱ Accordingȱ toȱ theȱ allegationsȱ inȱ theȱ complaint,ȱ Facebookȱ designedȱ itsȱ
websiteȱ forȱ thisȱ veryȱ purpose.ȱ “Facebookȱ hasȱ describedȱ itselfȱ asȱ aȱ providerȱ ofȱ
productsȱandȱservicesȱthatȱenableȱusersȱ.ȱ.ȱ.ȱtoȱfindȱandȱconnectȱwithȱotherȱusersȱ
.ȱ.ȱ.ȱ.”ȱApp’xȱ250ȱ¶ȱ129.ȱCEOȱMarkȱZuckerbergȱhasȱsimilarlyȱdescribedȱFacebookȱasȱ
“build[ing]ȱ toolsȱ toȱ helpȱ peopleȱ connectȱ withȱ theȱ peopleȱ theyȱ want,”ȱ therebyȱ
“extendingȱpeople’sȱcapacityȱtoȱbuildȱandȱmaintainȱrelationships.”ȱId.ȱatȱ251ȱ¶ȱ132.ȱ
Ofȱcourse,ȱFacebookȱisȱnotȱtheȱonlyȱcompanyȱthatȱtriesȱtoȱbringȱpeopleȱtogetherȱ
thisȱ way,ȱ andȱ perhapsȱ otherȱ publishersȱ tryȱ toȱ introduceȱ theirȱ readersȱ toȱ oneȱ
another.ȱ Yetȱ theȱ creationȱ ofȱ socialȱ networksȱ goesȱ farȱ beyondȱ theȱ traditionalȱ
editorialȱfunctionsȱthatȱtheȱCDAȱimmunizes.ȱ
AnotherȱwayȱtoȱconsiderȱtheȱCDAȱimmunityȱquestionȱisȱtoȱ“lookȱ.ȱ.ȱ.ȱtoȱwhatȱ
theȱ dutyȱ atȱ issueȱ actuallyȱ requires:ȱ specifically,ȱ whetherȱ theȱ dutyȱ wouldȱ
necessarilyȱrequireȱanȱinternetȱcompanyȱtoȱmonitor[,ȱalter,ȱorȱremove]ȱthirdȬpartyȱ
content.”ȱ HomeAway.com,ȱ 918ȱ F.3dȱ atȱ 682.ȱ Here,ȱ too,ȱ theȱ claimsȱ regardingȱ theȱ
20ȱ
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ȱ
algorithmsȱareȱaȱpoorȱfitȱforȱstatutoryȱimmunity.ȱTheȱdutyȱnotȱtoȱprovideȱmaterialȱ
supportȱ toȱ terrorism,ȱ asȱ appliedȱ toȱ Facebook’sȱ useȱ ofȱ theȱ algorithms,ȱ simplyȱ
requiresȱ thatȱ Facebookȱ notȱ activelyȱ useȱ thatȱ materialȱ toȱ determineȱ whichȱ ofȱ itsȱ
usersȱtoȱconnectȱtoȱeachȱother.ȱItȱcouldȱstopȱusingȱtheȱalgorithmsȱaltogether,ȱforȱ
instance.ȱ Or,ȱ shortȱ ofȱ that,ȱ Facebookȱ couldȱ modifyȱ itsȱ algorithmsȱ toȱ stopȱ themȱ
introducingȱterroristsȱtoȱoneȱanother.ȱNoneȱofȱthisȱwouldȱchangeȱanyȱunderlyingȱ
content,ȱ norȱ wouldȱ itȱ necessarilyȱ requireȱ courtsȱ toȱ assessȱ furtherȱ theȱ difficultȱ
questionȱofȱwhetherȱthereȱisȱanȱaffirmativeȱobligationȱtoȱmonitorȱthatȱcontent.ȱ
Inȱreachingȱthisȱconclusion,ȱIȱnoteȱthatȱATAȱtortsȱareȱatypical.ȱMostȱofȱtheȱ
commonȱtortsȱthatȱmightȱbeȱpleadedȱinȱrelationȱtoȱFacebook’sȱalgorithmsȱ“deriveȱ
liabilityȱfromȱbehaviorȱthatȱisȱidenticalȱtoȱpublishingȱorȱspeaking”—forȱinstance,ȱ
“publishingȱ defamatoryȱ material;ȱ publishingȱ materialȱ thatȱ inflictsȱ emotionalȱ
distress;ȱ orȱ .ȱ .ȱ .ȱ attemptingȱ toȱ deȬpublishȱ hurtfulȱ materialȱ butȱ doingȱ itȱ badly.”ȱ
Barnes,ȱ 570ȱ F.3dȱ atȱ 1107.ȱ Theȱ factȱ thatȱ Facebookȱ hasȱ figuredȱ outȱ howȱ toȱ targetȱ
materialȱtoȱpeopleȱmoreȱlikelyȱtoȱreadȱitȱdoesȱnotȱmatterȱtoȱaȱdefamationȱclaim,ȱforȱ
instance,ȱbecauseȱtheȱmereȱactȱofȱpublishingȱinȱtheȱfirstȱplaceȱcreatesȱliability.ȱ
21ȱ
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Theȱ ATAȱ worksȱ differently.ȱ Plaintiffs’ȱ materialȱ supportȱ andȱ aidingȱ andȱ
abettingȱclaimsȱpremiseȱliability,ȱnotȱonȱpublishingȱquaȱpublishing,ȱbutȱratherȱonȱ
Facebook’sȱprovisionȱofȱservicesȱandȱpersonnelȱtoȱHamas.ȱItȱhappensȱthatȱtheȱwayȱ
inȱ whichȱ Facebookȱ providesȱ theseȱ benefitsȱ includesȱ republishingȱ content,ȱ butȱ
Facebook’sȱ dutiesȱ underȱ theȱ ATAȱ ariseȱ separatelyȱ fromȱ theȱ republicationȱ ofȱ
content.ȱ Cf.ȱ id.ȱ (determiningȱ thatȱ liabilityȱ onȱ aȱ promissoryȱ estoppelȱ theoryȱ forȱ
promisingȱtoȱremoveȱcontentȱ“wouldȱcomeȱnotȱfromȱYahoo’sȱpublishingȱconduct,ȱ
butȱfromȱYahoo’sȱmanifestȱintentionȱtoȱbeȱlegallyȱobligatedȱtoȱdoȱsomething,ȱwhichȱ
happensȱtoȱbeȱremovalȱofȱmaterialȱfromȱpublication”).ȱForȱinstance,ȱtheȱoperationȱ
ofȱtheȱalgorithmsȱisȱallegedlyȱprovisionȱofȱ“expertȱadviceȱorȱassistance,”ȱandȱtheȱ
messageȱimpliedȱbyȱFacebook’sȱproddingȱisȱallegedlyȱaȱ“service”ȱorȱanȱattemptȱtoȱ
provideȱ“personnel.”ȱ18ȱU.S.C.ȱ§ȱ2339A(b).ȱ
Forȱtheseȱreasons,ȱ§ȱ230(c)(1)ȱdoesȱnotȱbarȱplaintiffs’ȱclaims.ȱ
III. ȱ
Evenȱifȱweȱsentȱthisȱcaseȱbackȱtoȱtheȱdistrictȱcourt,ȱasȱIȱbelieveȱtoȱbeȱtheȱrightȱ
course,ȱ theseȱ plaintiffsȱ mightȱ haveȱ provenȱ unableȱ toȱ allegeȱ thatȱ Facebook’sȱ
matchmakingȱalgorithmsȱplayedȱaȱroleȱinȱtheȱattacksȱthatȱharmedȱthem.ȱHowever,ȱ
22ȱ
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assumingȱarguendoȱthatȱsuchȱmightȱhaveȱbeenȱtheȱsituationȱhere,ȱIȱdoȱnotȱthinkȱweȱ
shouldȱ forecloseȱ theȱ possibilityȱ ofȱ reliefȱ inȱ futureȱ casesȱ ifȱ victimsȱ canȱ plausiblyȱ
allegeȱ thatȱ aȱ websiteȱ knowinglyȱ broughtȱ terroristsȱ togetherȱ andȱ thatȱ anȱ attackȱ
occurredȱasȱaȱdirectȱresultȱofȱtheȱsite’sȱactions.ȱThoughȱtheȱmajorityȱshutsȱtheȱdoorȱ
onȱsuchȱclaims,ȱtoday’sȱdecisionȱalsoȱillustratesȱtheȱextensiveȱimmunityȱthatȱtheȱ
currentȱ formulationȱ ofȱ theȱ CDAȱ alreadyȱ extendsȱ toȱ socialȱ mediaȱ companiesȱ forȱ
activitiesȱthatȱwereȱundreamtȱofȱinȱ1996.ȱItȱthereforeȱmayȱbeȱtimeȱforȱCongressȱtoȱ
reconsiderȱtheȱscopeȱofȱ§ȱ230.ȱ
Asȱisȱsoȱoftenȱtheȱcaseȱwithȱnewȱtechnologies,ȱtheȱveryȱqualitiesȱthatȱdriveȱ
socialȱ media’sȱ success—itsȱ easeȱ ofȱ use,ȱ openȱ access,ȱ andȱ abilityȱ toȱ connectȱ theȱ
world—haveȱ alsoȱ spawnedȱ itsȱ demons.ȱ Plaintiffs’ȱ complaintȱ illustratesȱ howȱ
pervasiveȱ andȱ blatantȱ aȱ presenceȱ Hamasȱ andȱ itsȱ leadersȱ haveȱ maintainedȱ onȱ
Facebook.ȱHamasȱisȱfarȱfromȱalone—Hezbollah,ȱBokoȱHaram,ȱtheȱRevolutionaryȱ
ArmedȱForcesȱofȱColombia,ȱandȱmanyȱotherȱdesignatedȱterroristȱorganizationsȱuseȱ
Facebookȱtoȱrecruitȱandȱrouseȱsupporters.ȱVernonȱSilverȱ&ȱSarahȱFrier,ȱTerroristsȱ
Areȱ Stillȱ Recruitingȱ onȱ Facebook,ȱ Despiteȱ Zuckerberg’sȱ Reassurances,ȱ Bloombergȱ
Businessweekȱ(Mayȱ10,ȱ2018),ȱhttp://www.bloomberg.com/news/articles/2018Ȭ05Ȭ
23ȱ
ȱ
ȱ
10/terroristsȬcreepȬontoȬfacebookȬasȬfastȬasȬitȬcanȬshutȬthemȬdown.ȱ Recentȱ newsȱ
reportsȱ suggestȱ thatȱ manyȱ socialȱ mediaȱ sitesȱ haveȱ beenȱ slowȱ toȱ removeȱ theȱ
plethoraȱofȱterroristȱandȱextremistȱaccountsȱpopulatingȱtheirȱplatforms,6ȱandȱthatȱ
suchȱ efforts,ȱ whenȱ theyȱ occur,ȱ areȱ oftenȱ underinclusive.ȱ Twitter,ȱ forȱ instance,ȱ
bannedȱtheȱKuȱKluxȱKlanȱinȱ2018ȱbutȱallowedȱDavidȱDukeȱtoȱmaintainȱhisȱaccount,ȱ
seeȱRooseȱ&ȱConger,ȱsupra,ȱwhileȱresearchersȱfoundȱthatȱFacebookȱremovedȱfewerȱ
thanȱhalfȱtheȱterroristȱaccountsȱandȱpostsȱthoseȱresearchersȱidentified,ȱseeȱWatersȱ
&ȱPostings,ȱsupra,ȱatȱ8;ȱDesmondȱButlerȱ&ȱBarbaraȱOrtulay,ȱFacebookȱAutoȬGeneratesȱ
Videosȱ Celebratingȱ Extremistȱ Images,ȱ Assoc.ȱ Pressȱ (Mayȱ 9,ȱ 2019),ȱ
http://apnews.com/f97c24dab4f34bd0b48b36f2988952a4.ȱ Thoseȱ whoseȱ accountsȱ
areȱremovedȱoftenȱpopȱupȱagainȱunderȱdifferentȱnamesȱorȱwithȱslightlyȱdifferentȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 6ȱSee,ȱe.g.,ȱGregoryȱWatersȱ&ȱRobertȱPostings,ȱSpidersȱofȱtheȱCaliphate:ȱMappingȱtheȱ
Islamicȱ State’sȱ Globalȱ Supportȱ Networkȱ onȱ Facebookȱ 8,ȱ Counterȱ Extremismȱ Projectȱ (Mayȱ
2018),ȱ http://www.counterextremism.com/sites/default/files/Spiders%20of%20the%20ȱ
Caliphate%20%28May%202018%29.pdf;ȱYaacovȱBenmelehȱ&ȱFeliceȱMaranz,ȱIsraelȱWarnsȱ
Twitterȱ ofȱ Legalȱ Actionȱ Overȱ Requestsȱ toȱ Removeȱ Content,ȱ Bloombergȱ (Mar.ȱ 20,ȱ 2018),ȱ
http://www.bloomberg.com/news/articles/2018Ȭ03Ȭ20/israelȬwarnsȬtwitterȬofȬlegalȬ
stepsȬoverȬincitementȬtoȬterrorism;ȱ Mikeȱ Isaac,ȱ Twitterȱ Stepsȱ Upȱ Effortsȱ toȱ Thwartȱ
Terrorists’ȱ Tweets,ȱ N.Y.ȱ Timesȱ (Feb.ȱ 5,ȱ 2016),ȱ http://www.nytimes.com/2016/02/06/ȱ
technology/twitterȬaccountȬsuspensionsȬterrorism.html;ȱ Kevinȱ Rooseȱ &ȱ Kateȱ Conger,ȱ
YouTubeȱtoȱRemoveȱThousandsȱofȱVideosȱPushingȱExtremeȱViews,ȱN.Y.ȱTimesȱ(Juneȱ5,ȱ2019),ȱ
ȱhttp://www.nytimes.com/2019/06/05/business/youtubeȬremoveȬextremistȬvideos.html.ȱ
24ȱ
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languageȱinȱtheirȱprofiles,ȱplayingȱaȱperverseȱandȱdeadlyȱgameȱofȱWhackȬaȬMoleȱ
withȱSiliconȱValley.ȱSeeȱIsaac,ȱsupra;ȱSilverȱ&ȱFrier,ȱsupra.ȱ
Ofȱcourse,ȱtheȱfailureȱtoȱremoveȱterroristȱcontent,ȱwhileȱanȱimportantȱpolicyȱ
concern,ȱ isȱ immunizedȱ underȱ §ȱ 230ȱ asȱ currentlyȱ written.ȱ Untilȱ today,ȱ theȱ sameȱ
couldȱnotȱhaveȱbeenȱsaidȱforȱsocialȱmedia’sȱunsolicited,ȱalgorithmicȱspreadingȱofȱ
terrorism.ȱ Shieldingȱ internetȱ companiesȱ thatȱ bringȱ terroristsȱ togetherȱ usingȱ
algorithmsȱcouldȱleaveȱdangerousȱactivityȱunchecked.ȱȱ
TakeȱFacebook.ȱȱAsȱplaintiffsȱallege,ȱitsȱfriendȬsuggestionȱalgorithmȱappearsȱ
toȱconnectȱterroristȱsympathizersȱwithȱpinpointȱprecision.ȱForȱinstance,ȱwhileȱtwoȱ
researchersȱwereȱstudyingȱIslamicȱStateȱ(“IS”)ȱactivityȱonȱFacebook,ȱoneȱ“receivedȱ
dozensȱofȱproȬISȱaccountsȱasȱrecommendedȱfriendsȱafterȱfriendingȱjustȱoneȱproȬISȱ
account.”ȱWatersȱ&ȱPostings,ȱsupra,ȱatȱ78.ȱMoreȱdisturbingly,ȱtheȱotherȱ“receivedȱ
anȱinfluxȱofȱPhilippinesȬbasedȱISȱsupportersȱandȱfightersȱasȱrecommendedȱfriendsȱ
afterȱlikingȱseveralȱnonȬextremistȱnewsȱpagesȱaboutȱMarawiȱandȱtheȱPhilippinesȱ
duringȱ IS’sȱ captureȱ ofȱ theȱ city.”ȱ Id.ȱ Newsȱ reportsȱ indicateȱ thatȱ theȱ friendȬ
suggestionȱfeatureȱhasȱintroducedȱthousandsȱofȱISȱsympathizersȱtoȱoneȱanother.ȱ
SeeȱMartinȱEvans,ȱFacebookȱAccusedȱofȱIntroducingȱExtremistsȱtoȱOneȱAnotherȱThroughȱ
25ȱ
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ȱ
‘Suggestedȱ Friends’ȱ Feature,ȱ Theȱ Telegraphȱ (Mayȱ 5,ȱ 2018),ȱ
http://www.telegraph.co.uk/news/2018/05/05/facebookȬaccusedȬintroducingȬ
extremistsȬoneȬanotherȬsuggested.ȱ
Andȱ thisȱ isȱ farȱ fromȱ theȱ onlyȱ Facebookȱ algorithmȱ thatȱ mayȱ steerȱ peopleȱ
towardȱterrorism.ȱAnotherȱturnsȱusers’ȱdeclaredȱinterestsȱintoȱaudienceȱcategoriesȱ
toȱenableȱmicrotargetedȱadvertising.ȱInȱ2017,ȱactingȱonȱaȱtip,ȱProPublicaȱsoughtȱtoȱ
directȱ anȱ adȱ atȱ theȱ algorithmicallyȬcreatedȱ categoryȱ “Jewȱ hater”—whichȱ turnedȱ
outȱ toȱ beȱ real,ȱ asȱ wereȱ “Germanȱ Schutzstaffel,”ȱ “Naziȱ Party,”ȱ andȱ “Hitlerȱ didȱ
nothingȱ wrong.”ȱ Juliaȱ Angwinȱ etȱ al.,ȱ Facebookȱ Enabledȱ Advertisesȱ toȱ Reachȱ ‘Jewȱ
Haters,’ȱProPublicaȱ(Sept.ȱ14,ȱ2017),ȱhttps://www.propublica.org/article/facebookȬ
enabledȬadvertisersȬtoȬreachȬjewȬhaters.ȱ Asȱ theȱ “Jewȱ hater”ȱ categoryȱ wasȱ tooȱ
smallȱ forȱ Facebookȱ toȱ runȱ anȱ adȱ campaign,ȱ “Facebook’sȱ automatedȱ systemȱ
suggestedȱ‘SecondȱAmendment’ȱasȱanȱadditionalȱcategoryȱ.ȱ.ȱ.ȱpresumablyȱbecauseȱ
itsȱsystemȱhadȱcorrelatedȱgunȱenthusiastsȱwithȱantiȬSemites.”ȱId.ȱȱ
That’sȱnotȱall.ȱAnotherȱFacebookȱalgorithmȱautoȬgeneratesȱbusinessȱpagesȱ
byȱ scrapingȱ employmentȱ informationȱ fromȱ users’ȱ profiles;ȱ otherȱ usersȱ canȱ thenȱ
“like”ȱtheseȱpages,ȱfollowȱtheirȱposts,ȱandȱseeȱwhoȱelseȱhasȱlikedȱthem.ȱButlerȱ&ȱ
26ȱ
ȱ
ȱ
Ortutay,ȱsupra.ȱProPublicaȱreportsȱthatȱextremistȱorganizationsȱincludingȱalȬQaida,ȱ
alȬShabab,ȱ andȱ ISȱ haveȱ suchȱ autoȬcreatedȱ pages,ȱ allowingȱ themȱ toȱ recruitȱ theȱ
pages’ȱfollowers.ȱId.ȱTheȱpageȱforȱalȬQaidaȱinȱtheȱArabianȱPeninsulaȱincludedȱtheȱ
group’sȱ Wikipediaȱ entryȱ andȱ aȱ propagandaȱ photoȱ ofȱ theȱ damagedȱ USSȱ Cole,ȱ
whichȱtheȱgroupȱhadȱbombedȱinȱ2000.ȱId.ȱMeanwhile,ȱaȱfourthȱalgorithmȱintegratesȱ
users’ȱphotosȱandȱotherȱmediaȱtoȱgenerateȱvideosȱcommemoratingȱtheirȱpreviousȱ
year.ȱId.ȱMilitantsȱgetȱaȱreadyȬmadeȱpropagandaȱclip,ȱcompleteȱwithȱaȱthankȬyouȱ
messageȱfromȱFacebook.ȱId.ȱ
Thisȱcase,ȱandȱourȱCDAȱanalysis,ȱhasȱcenteredȱonȱtheȱuseȱofȱalgorithmsȱtoȱ
fomentȱterrorism.ȱYetȱtheȱconsequencesȱofȱaȱCDAȬdriven,ȱhandsȬoffȱapproachȱtoȱ
socialȱ mediaȱ extendȱ muchȱ further.ȱ Socialȱ mediaȱ canȱ beȱ usedȱ byȱ foreignȱ
governmentsȱtoȱinterfereȱinȱAmericanȱelections.ȱForȱexample,ȱJusticeȱDepartmentȱ
prosecutorsȱ recentlyȱ concludedȱ thatȱ Russianȱ intelligenceȱ agentsȱ createdȱ falseȱ
Facebookȱ groupsȱ andȱ accountsȱ inȱ theȱ yearsȱ leadingȱ upȱ toȱ theȱ 2016ȱ electionȱ
campaign,ȱbootstrappingȱFacebook’sȱalgorithmȱtoȱspewȱpropagandaȱthatȱreachedȱ
betweenȱ29ȱmillionȱandȱ126ȱmillionȱAmericans.ȱSeeȱ1ȱRobertȱS.ȱMuellerȱIII,ȱSpecialȱ
Counsel,ȱReportȱonȱtheȱInvestigationȱIntoȱRussianȱInterferenceȱinȱtheȱ2016ȱPresidentialȱ
27ȱ
ȱ
ȱ
Electionȱ24Ȭ26,ȱU.S.ȱDep’tȱofȱJusticeȱ(Marchȱ2019),ȱhttp://www.justice.gov/storage/ȱ
report.pdf.ȱ Russiaȱ alsoȱ purchasedȱ overȱ 3,500ȱ advertisementsȱ onȱ Facebookȱ toȱ
publicizeȱtheirȱfakeȱFacebookȱgroups,ȱseveralȱofȱwhichȱgrewȱtoȱhaveȱhundredsȱofȱ
thousandsȱofȱfollowers.ȱId.ȱatȱ25Ȭ26.ȱOnȱTwitter,ȱRussiaȱdevelopedȱfalseȱaccountsȱ
thatȱ impersonatedȱ Americanȱ peopleȱ orȱ groupsȱ andȱ issuedȱ contentȱ designedȱ toȱ
influenceȱtheȱelection;ȱitȱthenȱcreatedȱthousandsȱofȱautomatedȱ“bot”ȱaccountsȱtoȱ
amplifyȱ theȱ shamȱ Americans’ȱ messages.ȱ Id.ȱ atȱ 26Ȭ28.ȱ Oneȱ fakeȱ accountȱ receivedȱ
overȱsixȱmillionȱretweets,ȱtheȱvastȱmajorityȱofȱwhichȱappearȱtoȱhaveȱcomeȱfromȱ
realȱ Twitterȱ users.ȱ Seeȱ Gillianȱ Cleary,ȱ Twitterbots:ȱ Anatomyȱ ofȱ aȱ Propagandaȱ
Campaign,ȱ Symantecȱ (Juneȱ 5,ȱ 2019),ȱ http://www.symantec.com/blogs/threatȬ
intelligence/twitterbotsȬpropagandaȬdisinformation.ȱ Russianȱ intelligenceȱ alsoȱ
harnessedȱtheȱreachȱthatȱsocialȱmediaȱgaveȱitsȱfalseȱidentitiesȱtoȱorganizeȱ“dozensȱ
ofȱ U.S.ȱ rallies,”ȱ someȱ ofȱ whichȱ “drewȱ hundreds”ȱ ofȱ realȬworldȱ Americans.ȱ
Mueller,ȱReport,ȱsupra,ȱatȱ29.ȱRussiaȱcouldȱdoȱallȱthisȱonlyȱbecauseȱsocialȱmediaȱisȱ
designedȱtoȱtargetȱmessagesȱlikeȱRussia’sȱtoȱtheȱusersȱmostȱsusceptibleȱtoȱthem.ȱ
Whileȱ Russia’sȱ interferenceȱ inȱ theȱ 2016ȱ electionȱ isȱ theȱ bestȬdocumentedȱ
exampleȱofȱforeignȱmeddlingȱthroughȱsocialȱmedia,ȱitȱisȱnotȱtheȱonlyȱone.ȱFederalȱ
28ȱ
ȱ
ȱ
intelligenceȱ agenciesȱ expressedȱ concernȱ inȱ theȱ weeksȱ beforeȱ theȱ 2018ȱ midtermȱ
electionȱ “aboutȱ ongoingȱ campaignsȱ byȱ Russia,ȱ Chinaȱ andȱ otherȱ foreignȱ actors,ȱ
includingȱIran,”ȱtoȱ“influenceȱpublicȱsentiment”ȱthroughȱmeansȱ“includingȱusingȱ
socialȱ mediaȱ toȱ amplifyȱ divisiveȱ issues.”ȱ Pressȱ Release,ȱ Officeȱ ofȱ Dir.ȱ ofȱ Nat’lȱ
Intelligence,ȱ Jointȱ Statementȱ fromȱ theȱ ODNI,ȱ DOJ,ȱ FBI,ȱ andȱ DHS:ȱ Combattingȱ
ForeignȱInfluenceȱinȱU.S.ȱElections,ȱ(Oct.ȱ19,ȱ2018),ȱhttps://www.dni.gov/index.ȱ
php/newsroom/pressȬreleases/item/1915ȬjointȬstatementȬfromȬtheȬodniȬdojȬfbiȬ
andȬdhsȬcombatingȬforeignȬinfluenceȬinȬuȬsȬelections.ȱNewsȱreportsȱalsoȱsuggestȱ
thatȱ Chinaȱ targetsȱ stateȬsponsoredȱ propagandaȱ toȱ Americansȱ onȱ Facebookȱ andȱ
purchasesȱ Facebookȱ adsȱ toȱ amplifyȱ itsȱ communications.ȱ Seeȱ Paulȱ Mozur,ȱ Chinaȱ
SpreadsȱPropagandaȱtoȱU.S.ȱonȱFacebook,ȱaȱPlatformȱItȱBansȱatȱHome,ȱN.Y.ȱTimesȱ(Nov.ȱ
8,ȱ2017),ȱhttps://www.nytimes.com/2017/11/08/technology/chinaȬfacebook.html.ȱ
Wideningȱ theȱ apertureȱ further,ȱ malefactorsȱ atȱ homeȱ andȱ abroadȱ canȱ
manipulateȱ socialȱ mediaȱ toȱ promoteȱ extremism.ȱ “Behindȱ everyȱ Facebookȱ ad,ȱ
Twitterȱ feed,ȱ andȱ YouTubeȱ recommendationȱ isȱ anȱ algorithmȱ that’sȱ designedȱ toȱ
keepȱusersȱusing:ȱItȱtracksȱpreferencesȱthroughȱclicksȱandȱhovers,ȱthenȱspitsȱoutȱaȱ
steadyȱstreamȱofȱcontentȱthat’sȱinȱlineȱwithȱyourȱtastes.”ȱKatherineȱJ.ȱWu,ȱRadicalȱ
29ȱ
ȱ
ȱ
IdeasȱSpreadȱThroughȱSocialȱMedia.ȱAreȱtheȱAlgorithmsȱtoȱBlame?,ȱPBSȱ(Mar.ȱ28,ȱ2019),ȱ
https://www.pbs.org/wgbh/nova/article/radicalȬideasȬsocialȬmediaȬalgorithms.ȱ
Allȱtooȱoften,ȱhowever,ȱtheȱcodeȱitselfȱturnsȱthoseȱtastesȱsour.ȱForȱexample,ȱoneȱ
studyȱsuggestsȱthatȱmanipulationȱofȱFacebook’sȱnewsȱfeedȱinfluencesȱtheȱmoodȱofȱ
itsȱ users:ȱ placeȱ moreȱ positiveȱ postsȱ onȱ theȱ feedȱ andȱ usersȱgetȱ happier;ȱ focusȱ onȱ
negativeȱ informationȱ insteadȱ andȱ usersȱ getȱ angrier.ȱ Adamȱ D.ȱ I.ȱ Kramerȱ etȱ al.,ȱ
ExperimentalȱEvidenceȱofȱMassiveȬScaleȱEmotionalȱContagionȱThroughȱSocialȱNetworks,ȱ
111ȱPNASȱ8788,ȱ8789ȱ(2014).ȱThisȱcanȱbecomeȱaȱproblem,ȱasȱFacebook’sȱalgorithmȱ
“tendsȱtoȱpromoteȱtheȱmostȱprovocativeȱcontent”ȱonȱtheȱsite.ȱMaxȱFisher,ȱInsideȱ
Facebook’sȱ Secretȱ Rulebookȱ forȱ Globalȱ Politicalȱ Speech,ȱ N.Y.ȱ Timesȱ (Dec.ȱ 27,ȱ 2018),ȱ
http://www.nytimes.com/2018/12/27/world/facebookȬmoderators.html.ȱ Indeed,ȱ
“[t]heȱFacebookȱNewsȱFeedȱenvironmentȱbringsȱtogether,ȱinȱoneȱplace,ȱmanyȱofȱ
theȱ influencesȱ thatȱ haveȱ beenȱ shownȱ toȱ driveȱ psychologicalȱ aspectsȱ ofȱ
polarization.”ȱJaimeȱE.ȱSettle,ȱFrenemies:ȱHowȱSocialȱMediaȱPolarizesȱAmericaȱ(2018).ȱ
Likewise,ȱ YouTube’sȱ videoȱ recommendationȱ algorithm—whichȱ leadsȱ toȱ moreȱ
thanȱ 70ȱ percentȱ ofȱ timeȱ peopleȱ spendȱ onȱ theȱ platform—hasȱ beenȱ criticizedȱ forȱ
shuntingȱvisitorsȱtowardȱeverȱmoreȱextremeȱandȱdivisiveȱvideos.ȱRooseȱ&ȱConger,ȱ
30ȱ
ȱ
ȱ
supra;ȱseeȱ JackȱNicas,ȱHowȱYouTubeȱDrivesȱPeopleȱtoȱtheȱInternet’sȱDarkestȱCorners,ȱ
Wallȱ St.ȱ J.ȱ (Feb.ȱ 7,ȱ 2018),ȱ https://www.wsj.com/articles/howȬyoutubeȬdrivesȬ
viewersȬtoȬtheȬinternetsȬdarkestȬcornersȬ1518020478.ȱYouTubeȱhasȱfineȬtunedȱitsȱ
algorithmȱ toȱ recommendȱ videosȱ thatȱ recalibrateȱ users’ȱ existingȱ areasȱ ofȱ interestȱ
andȱsteadilyȱsteerȱthemȱtowardȱnewȱones—aȱmodusȱoperandiȱthatȱhasȱreportedlyȱ
provenȱaȱrealȱboonȱforȱfarȬrightȱextremistȱcontent.ȱSeeȱKevinȱRoose,ȱTheȱMakingȱofȱ
aȱYouTubeȱRadical,ȱN.Y.ȱTimesȱ(Juneȱ8,ȱ2019),ȱhttp://www.nytimes.com/interactive/ȱ
2019/06/08/technology/youtubeȬradical.html.ȱȱ
ȱ Thereȱ isȱ alsoȱ growingȱ attentionȱ toȱ whetherȱ socialȱ mediaȱ hasȱ playedȱ aȱ
significantȱ roleȱ inȱ increasingȱ nationwideȱ politicalȱ polarization.ȱ Seeȱ Andrewȱ
Soergel,ȱIsȱSocialȱMediaȱtoȱBlameȱforȱPoliticalȱPolarizationȱinȱAmerica?,ȱU.S.ȱNewsȱ&ȱ
WorldȱRep.ȱ(Mar.ȱ20,ȱ2017),ȱhttps://www.usnews.com/news/articles/2017Ȭ03Ȭ20/isȬ
socialȬmediaȬtoȬblameȬforȬpoliticalȬpolarizationȬinȬamerica.ȱ Theȱ concernȱ isȱ thatȱ
“webȱ surfersȱ areȱ beingȱ nudgedȱ inȱ theȱ directionȱ ofȱ politicalȱ orȱ unscientificȱ
propaganda,ȱabusiveȱcontent,ȱandȱconspiracyȱtheories.”ȱWu,ȱRadicalȱIdeas,ȱsupra.ȱ
Byȱ surfacingȱ ideasȱ thatȱ wereȱ previouslyȱ deemedȱ tooȱ radicalȱ toȱ takeȱ seriously,ȱ
socialȱmediaȱmainstreamsȱthem,ȱwhichȱstudiesȱshowȱmakesȱpeopleȱ“muchȱmoreȱ
31ȱ
ȱ
ȱ
open”ȱtoȱthoseȱconcepts.ȱMaxȱFisherȱ&ȱAmandaȱTaub,ȱHowȱEverydayȱSocialȱMediaȱ
Usersȱ Becomeȱ RealȬWorldȱ Extremists,ȱ N.Y.ȱ Timesȱ (Apr.ȱ 25,ȱ 2018),ȱ
http://www.nytimes.com/2018/04/25/world/asia/facebookȬextremism.html.ȱ Atȱ itsȱ
worst,ȱthereȱisȱevidenceȱthatȱsocialȱmediaȱmayȱevenȱbeȱusedȱtoȱpushȱpeopleȱtowardȱ
violence.7ȱTheȱsitesȱareȱnotȱentirelyȱtoȱblame,ȱofȱcourse—theyȱwouldȱnotȱhaveȱsuchȱ
successȱ withoutȱ humansȱ willingȱ toȱ generateȱ andȱ toȱ viewȱ extremeȱ content.ȱ
Providersȱareȱalsoȱtweakingȱtheȱalgorithmsȱtoȱreduceȱtheirȱpullȱtowardȱhateȱspeechȱ
andȱotherȱinflammatoryȱmaterial.ȱSeeȱIsaac,ȱsupra;ȱRooseȱ&ȱConger,ȱsupra.ȱYetȱtheȱ
dangersȱofȱsocialȱmedia,ȱinȱitsȱcurrentȱform,ȱareȱpalpable.ȱ
Whileȱ theȱ majorityȱ andȱ Iȱ disagreeȱ aboutȱ whetherȱ §ȱ 230ȱ immunizesȱ
interactiveȱcomputerȱservicesȱfromȱliabilityȱforȱallȱtheseȱactivitiesȱorȱonlyȱsome,ȱitȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 7ȱSee,ȱe.g.,ȱSarahȱMarsh,ȱSocialȱMediaȱRelatedȱtoȱViolenceȱbyȱYoungȱPeople,ȱSayȱExperts,ȱ
Theȱ Guardianȱ (Apr.ȱ 2,ȱ 2018),ȱ https://www.theguardian.com/media/2018/apr/02/socialȬ
mediaȬviolenceȬyoungȬpeopleȬgangsȬsayȬexperts;ȱKevinȱRoose,ȱAȱMassȱMurderȱof,ȱandȱfor,ȱ
theȱ Internet,ȱ N.Y.ȱ Timesȱ (Mar.ȱ 15,ȱ 2019),ȱ https://www.nytimes.com/2019/03/15/ȱ
technology/facebookȬyoutubeȬchristchurchȬshooting.html;ȱCraigȱTimbergȱetȱal.,ȱTheȱNewȱ
Zealandȱ Shootingȱ Showsȱ Howȱ TouTubeȱ andȱ Facebookȱ Spreadȱ Hateȱ andȱ Violentȱ Images—Yetȱ
Again,ȱ Wash.ȱ Postȱ (Mar.ȱ 15,ȱ 2019),ȱ https://www.washingtonpost.com/technology/ȱ
2019/03/15/facebookȬyoutubeȬtwitterȬamplifiedȬvideoȬchristchurchȬmosqueȬshooting;ȱ
Julieȱ Turkewitzȱ &ȱ Kevinȱ Roose,ȱ Whoȱ Isȱ Robertȱ Bowers,ȱ theȱ Suspectȱ inȱ theȱ Pittsburghȱ
Synagogueȱ Shooting?,ȱ N.Y.ȱ Timesȱ (Oct.ȱ 27,ȱ 2018),ȱ https://www.nytimes.com/2018/ȱ
ȱ10/27/us/robertȬbowersȬpittsburghȬsynagogueȬshooter.html.ȱ
32ȱ
ȱ
isȱpellucidȱthatȱCongressȱdidȱnotȱhaveȱanyȱofȱthemȱinȱmindȱwhenȱitȱenactedȱtheȱ
CDA.ȱTheȱtextȱandȱlegislativeȱhistoryȱofȱtheȱstatuteȱshoutȱtoȱtheȱraftersȱCongress’sȱ
focusȱ onȱ reducingȱ children’sȱ accessȱ toȱ adultȱ material.ȱ Congressȱ couldȱ notȱ haveȱ
anticipatedȱtheȱperniciousȱspreadȱofȱhateȱandȱviolenceȱthatȱtheȱriseȱofȱsocialȱmediaȱ
likelyȱhasȱsinceȱfomented.ȱNorȱcouldȱCongressȱhaveȱdivinedȱtheȱroleȱthatȱsocialȱ
mediaȱprovidersȱthemselvesȱwouldȱplayȱinȱthisȱtale.ȱMountingȱevidenceȱsuggestsȱ
thatȱprovidersȱdesignedȱtheirȱalgorithmsȱtoȱdriveȱusersȱtowardȱcontentȱandȱpeopleȱ
theȱusersȱagreedȱwith—andȱthatȱtheyȱhaveȱdoneȱitȱtooȱwell,ȱnudgingȱsusceptibleȱ
soulsȱeverȱfurtherȱdownȱdarkȱpaths.ȱByȱcontrast,ȱwhenȱtheȱCDAȱbecameȱlaw,ȱtheȱ
closestȱextantȱancestorȱtoȱFacebookȱ(andȱitȱwasȱstillȱseveralȱbranchesȱlowerȱonȱtheȱ
evolutionaryȱtree)ȱwasȱtheȱchatroomȱorȱmessageȱforum,ȱwhichȱactedȱasȱaȱdigitalȱ
bulletinȱboardȱandȱdidȱnothingȱproactiveȱtoȱforgeȱoffȬsiteȱconnections.8ȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
ȱ 8ȱSeeȱCaitlinȱDewey,ȱAȱCompleteȱHistoryȱofȱtheȱRiseȱandȱFall—andȱReincarnation!—ofȱ
theȱBelovedȱ‘90sȱChatroom,ȱWash.ȱPostȱ(Oct.ȱ30,ȱ2014),ȱhttp://www.washingtonpost.com/ȱ
news/theȬintersect/wp/2014/10/30/aȬcompleteȬhistoryȬofȬtheȬriseȬandȬfallȬandȬ
reincarnationȬofȬtheȬbelovedȬ90sȬchatroom;ȱ seeȱ alsoȱ Thenȱ andȱ Now:ȱ Aȱ Historyȱ ofȱ Socialȱ
NetworkingȱSites,ȱCBSȱNews,ȱhttp://www.cbsnews.com/pictures/thenȬandȬnowȬaȬhistoryȬ
ofȬsocialȬnetworkingȬsitesȱ (lastȱ accessedȱ Julyȱ 9,ȱ 2019)ȱ (detailingȱ theȱ evolutionȱ ofȱ socialȱ
mediaȱsitesȱfromȱClassmates,ȱlaunchedȱonlyȱ“asȱaȱlistȱofȱschoolȱaffiliations”ȱinȱDecemberȱ
1995;ȱtoȱ“theȱveryȱfirstȱsocialȱnetworkingȱsite”ȱSixȱDegrees,ȱwhichȱlaunchedȱinȱMayȱ1997ȱ
ȱ
butȱwhoseȱnetworksȱwereȱlimitedȱ“dueȱtoȱtheȱlackȱofȱpeopleȱconnectedȱtoȱtheȱInternet”;ȱ
33ȱ
ȱ
Whether,ȱ andȱ toȱ whatȱ extent,ȱ Congressȱ shouldȱ allowȱ liabilityȱ forȱ techȱ
companiesȱthatȱencourageȱterrorism,ȱpropaganda,ȱandȱextremismȱisȱaȱquestionȱforȱ
legislators,ȱnotȱjudges.ȱOverȱtheȱpastȱtwoȱdecadesȱ“theȱInternetȱhasȱoutgrownȱitsȱ
swaddlingȱ clothes,”ȱ Roommates.Com,ȱ 521ȱ F.3dȱ atȱ 1175ȱ n.39,ȱ andȱ itȱ isȱ fairȱ toȱ askȱ
whetherȱtheȱrulesȱthatȱgovernedȱitsȱinfancyȱshouldȱstillȱoverseeȱitsȱadulthood.ȱItȱisȱ
undeniableȱ thatȱ theȱ Internetȱ andȱ socialȱ mediaȱ haveȱ hadȱ manyȱ positiveȱ effectsȱ
worthȱ preservingȱ andȱ promoting,ȱ suchȱ asȱ facilitatingȱ openȱ communication,ȱ
dialogue,ȱandȱeducation.ȱAtȱtheȱsameȱtime,ȱasȱoutlinedȱabove,ȱsocialȱmediaȱcanȱbeȱ
manipulatedȱ byȱ evildoersȱ whoȱ poseȱ realȱ threatsȱ toȱ ourȱ democraticȱ society.ȱ Aȱ
healthyȱ debateȱ hasȱ begunȱ bothȱ inȱ theȱ legalȱ academy9ȱ andȱ inȱ theȱ policyȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
toȱFriendster,ȱlaunchedȱinȱMarchȱ2002ȱandȱ“creditedȱasȱgivingȱbirthȱtoȱtheȱmodernȱsocialȱ
mediaȱmovement”;ȱtoȱFacebook,ȱwhichȱwasȱ“rolledȱoutȱtoȱtheȱpublicȱinȱSeptemberȱ2006”).ȱ
ȱ 9ȱSee,ȱe.g.,ȱDanielleȱKeatsȱCitronȱ&ȱBenjaminȱWittes,ȱTheȱProblemȱIsnȇtȱJustȱBackpage:ȱ
Revisingȱ Sectionȱ 230ȱ Immunity,ȱ 2ȱ Geo.ȱ L.ȱ Tech.ȱ Rev.ȱ 453,ȱ 454Ȭ55ȱ (2018);ȱ Jeffȱ Kosseff,ȱ
DefendingȱSectionȱ230:ȱTheȱValueȱofȱIntermediaryȱImmunity,ȱ15ȱJ.ȱTech.ȱL.ȱ&ȱPolȇyȱ123,ȱ124ȱ
(2010);ȱDanielaȱC.ȱManzi,ȱManagingȱtheȱMisinformationȱMarketplace:ȱTheȱFirstȱAmendmentȱ
andȱ theȱ Fightȱ AgainstȱFakeȱ News,ȱ87ȱ Fordhamȱ L.ȱ Rev.ȱ 2623,ȱ 2642Ȭ43ȱ (2019).ȱ Muchȱ ofȱ theȱ
enterprisingȱlegalȱscholarshipȱdebatingȱtheȱ intersectionȱ ofȱsocialȱmedia,ȱterrorism,ȱ andȱ
theȱCDAȱcomesȱfromȱstudentȱNotes.ȱSee,ȱe.g.,ȱJaimeȱE.ȱFreilich,ȱNote,ȱSectionȱ230’sȱLiabilityȱ
ShieldȱinȱtheȱAgeȱofȱOnlineȱTerroristȱRecruitment,ȱ83ȱBrook.ȱL.ȱRev.ȱ675,ȱ690Ȭ91ȱ(2018);ȱAnnaȱ
Elisabethȱ Jayneȱ Goodman,ȱ Noteȱ andȱ Comment,ȱ Whenȱ Youȱ Giveȱ aȱ Terroristȱ aȱ Twitter:ȱ
HoldingȱSocialȱMediaȱCompaniesȱLiableȱforȱtheirȱSupportȱofȱTerrorism,ȱ46ȱPepp.ȱL.ȱRev.ȱ147,ȱ
ȱ
182Ȭ86ȱ (2018);ȱ Nicoleȱ Phe,ȱ Note,ȱ Socialȱ Mediaȱ Terror:ȱ Reevaluatingȱ Intermediaryȱ Liabilityȱ
34ȱ
ȱ
community10ȱ aboutȱ changingȱ theȱ scopeȱ ofȱ §ȱ 230.ȱ Perhapsȱ Congressȱ willȱ clarifyȱ
whatȱIȱbelieveȱtheȱtextȱofȱtheȱprovisionȱalreadyȱstates:ȱthatȱtheȱcreationȱofȱsocialȱ
networksȱ reachesȱ beyondȱ theȱ publishingȱ functionsȱ thatȱ §ȱ 230ȱ protects.ȱ Perhapsȱ
CongressȱwillȱengageȱinȱaȱbroaderȱrethinkingȱofȱtheȱscopeȱofȱCDAȱimmunity.ȱOrȱ
perhapsȱCongressȱwillȱdecideȱthatȱtheȱcurrentȱregimeȱbestȱbalancesȱtheȱinterestsȱ
involved.ȱ Inȱ theȱ meantime,ȱ however,ȱ Iȱ cannotȱ joinȱ myȱ colleagues’ȱ decisionȱ toȱ
immunizeȱ Facebook’sȱ friendȬȱ andȱ contentȬsuggestionȱ algorithmsȱ fromȱ judicialȱ
scrutiny.ȱIȱthereforeȱmustȱinȱpartȱrespectfullyȱdissent,ȱasȱIȱconcurȱinȱpart.ȱ
ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ
UnderȱtheȱCommunicationsȱDecencyȱAct,ȱ51ȱSuffolkȱU.ȱL.ȱRev.ȱ99,ȱ126Ȭ30ȱ(2018).ȱ
ȱ 10ȱSee,ȱe.g.,ȱTarletonȱGillespie,ȱHowȱSocialȱNetowrksȱSetȱtheȱLimitsȱofȱWhatȱWeȱCanȱSayȱ
Online,ȱWiredȱ(Juneȱ26,ȱ2018),ȱhttp://www.wired.com/story/howȬsocialȬnetworksȬsetȬtheȬ
limitsȬofȬwhatȬweȬcanȬsayȬonline;ȱ Christianoȱ Lima,ȱ Howȱ aȱ Wideningȱ Politicalȱ Riftȱ Overȱ
Onlineȱ Liabilityȱ Isȱ Splittingȱ Washington,ȱ Politicoȱ (Julyȱ 9,ȱ 2019),ȱ http://www.politico.com/ȱ
story/2019/07/09/onlineȬindustryȬimmunityȬsectionȬ230Ȭ1552241;ȱ Markȱ Sullivan,ȱ Theȱ
1996ȱ Lawȱ Thatȱ Madeȱ theȱ Webȱ Isȱ inȱ theȱ Crosshairs,ȱ Fastȱ Co.ȱ (Nov.ȱ 29,ȱ 2018),ȱ
http://www.fastcompany.com/90273352/maybeȬitsȬtimeȬtoȬtakeȬawayȬtheȬoutdatedȬ
loopholeȬthatȬbigȬtechȬexploits;ȱ cf.ȱ Darrellȱ M.ȱ Westȱ &ȱ Johnȱ R.ȱ Allen,ȱ Howȱ Artificialȱ
Intelligenceȱ Isȱ Transformingȱ theȱ World,ȱ Brookingsȱ (Apr.ȱ 24,ȱ 2018),ȱ
http://www.brookings.edu/research/howȬartificialȬintelligenceȬisȬtransformingȬtheȬ
worldȱ(“TheȱmalevolentȱuseȱofȱAIȱexposesȱindividualsȱandȱorganizationsȱtoȱunnecessaryȱ
ȱrisksȱandȱunderminesȱtheȱvirtuesȱofȱtheȱemergingȱtechnology.”).ȱ
35ȱ