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No. 16-17165
IN THE

United States Court of Appeals
FOR THE NINTH CIRCUIT

TAMARA FIELDS, ET AL.,

Plaintiffs-Appellants,

v.
TWITTER, INC.,
___________

Defendant-Appellee.

On Appeal from the United States District Court
for the Northern District of California
District Court No. 3:16-cv-00213-WHO
The Honorable William H. Orrick
BRIEF OF AMICUS CURIAE INTERNET ASSOCIATION
IN SUPPORT OF DEFENDANT-APPELLEE TWITTER,
INC.
SONALI D. MAITRA
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
(415) 362-6666
smaitra@durietangri.com

Counsel for Amicus Curiae
Internet Association

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Internet
Association has no parent corporation and no publicly held corporation
owns 10 percent or more of its stock.

/s/ Sonali D. Maitra

DATED: June 7, 2017

Sonali D. Maitra
DURIE TANGRI LLP

Counsel for Amicus Curiae
Internet Association

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CERTIFICATE OF COMPLIANCE WITH RULE 29(C)(5)
Counsel for the parties did not author this brief in whole or in
part. The parties have not contributed money intended to fund
preparing or submitting the brief. No person other than Amicus Curiae
(including our members) or our counsel contributed money to fund
preparation or submission of this brief.

/s/ Sonali D. Maitra

DATED: June 7, 2017

Sonali D. Maitra
DURIE TANGRI LLP

Counsel for Amicus Curiae
Internet Association

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TABLE OF CONTENTS
PAGE NO.
CORPORATE DISCLOSURE STATEMENT ......................................... i 
CERTIFICATE OF COMPLIANCE WITH RULE 29(c)(5) .................. ii 
IDENTITY AND INTEREST OF THE AMICUS CURIAE ................. vi 
CONSENT OF THE PARTIES ............................................................ vii 
I. 

SUMMARY OF ARGUMENT ............................................1 

II. 

ARGUMENT .......................................................................3 
A. 

Our Members Share The Goal Of Ridding
Their Services Of Offensive And Dangerous
Content...................................................................... 3 

B. 

The Broad Protections Of Section 230 Are
Meant To Encourage Self-Policing, Among
Other Important Goals ............................................. 5 

C. 

Holding Intermediaries Liable For
Providing Accounts And Messaging
Services Would Gut Section 230 ............................ 10 

III.  CONCLUSION..................................................................13 
CERTIFICATE OF COMPLIANCE ......................................................15 

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TABLE OF AUTHORITIES
PAGE NO(S).
Cases 

Barnes v. Yahoo!, Inc.,

570 F.3d 1096 (9th Cir. 2009), as amended (Sept. 28, 2009) ............... 11

Barrett v. Rosenthal,

40 Cal. 4th 33 (2006) ............................................................................. 10

Carafano v. Metrosplash.com Inc.,

339 F.3d 1119 (9th Cir. 2003) ........................................................... 9, 10

Cohen v. Facebook, Inc., Force v. Facebook, Inc.,

No. 16-CV-4453 (NGG) (LB), 2017 WL 2192621 (E.D.N.Y. May 18,
2017) ....................................................................................................... 12

Cubby, Inc. v. CompuServe, Inc.,

776 F. Supp. 135 (S.D.N.Y. 1991) ....................................................... 6, 7

Doe v. MySpace, Inc.,

528 F.3d 413 (5th Cir. 2008) ........................................................... 10, 11

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157 (9th Cir. 2008) ....................................................... 5, 9, 13

Fields v. Twitter, Inc.,

217 F. Supp. 3d 1116 (N.D. Cal. 2016) ................................................. 12

Johnson v. Arden,

614 F.3d 785 (8th Cir. 2010) ................................................................. 10

Klayman v. Zuckerburg,

753 F.3d 1354 (D.C. Cir. 2014) ............................................................. 10

Stratton Oakmont, Inc. v. Prodigy Servs. Co.,

No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) 5, 6, 7, 13

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Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007) .................................................................. 11

Statutes 
28 U.S.C. § 4102.......................................................................................... 9
47 U.S.C. § 230.................................................................................. passim
Dot Kids Implementation Act, Pub. L. No. 107-317, 116 Stat. 2766
(2002)........................................................................................................ 9
Other Authorities 
H.R. Rep. No. 104-458 (1996) (Conf. Rep.), reprinted in 1996
U.S.C.C.A.N. 10 ................................................................................... 5, 7
H.R. Rep. No. 107-449 (2002) ..................................................................... 9
Ryan J. Reilly, “If You’re Trying to Join ISIS Through Twitter, the FBI
Probably Knows About It,” Huffington Post (Jul. 9, 2015),
http://www.huffingtonpost.com/2015/07/09/isis-twitter-fbi-islamicstate_n_7763992.html ............................................................................. 4

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IDENTITY AND INTEREST OF THE AMICUS CURIAE

Amicus Curiae Internet Association is a nonprofit trade
organization representing the interests of the world’s leading Internet
companies and their global community of users. We are dedicated to
advancing public policy solutions to foster innovation and economic
growth and empower users. Our membership includes Amazon.com,
eBay, Expedia, Facebook, Google, IAC, LinkedIn, Monster Worldwide,
Rackspace, salesforce.com, TripAdvisor, Twitter, and Zynga.1 As stated,
neither Twitter nor counsel for Twitter authored this brief in whole or
in part.
Our members have substantial interest in the rules governing
liability for unlawful and offensive content generated by third parties
and circulated through online platforms. Over the past several years,
courts across the country, including this one, have held that Section 230
of the Communications Decency Act (47 U.S.C. § 230) affords
interactive service providers like Twitter and our members broad
immunity for such third-party content. The district court’s decision is
in line with that precedent. Overturning this decision would
substantially undermine the immunity afforded by Section 230 and the
policies underlying it.

A full list of Internet Association members may be found on our
website at https://internetassociation.org/our-members/

1

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CONSENT OF THE PARTIES
Counsel for Defendant-Appellee Twitter, Inc. (“Twitter”),
consented to the filing of this brief. Counsel for Plaintiffs-Appellants
Tamara Fields, et al. (“Appellants”), declined to consent. Amicus

Curiae’s motion for leave to file this Amicus Brief is filed concurrently
herewith.

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I.

SUMMARY OF ARGUMENT
We have genuine and unconditional sympathy for the families of

Lloyd Fields and James Creach—as well as for any victims of senseless
violence anywhere in the world. We agree with Appellants that ISIS’s
hate, brutality, and crimes against humanity have no place in our
society, and certainly no place on our members’ services.
Appellants ask to hold Twitter liable for unlawful and offensive
content generated by third parties and circulated through its platform.
But Congress has already spoken on this issue in passing Section 230 of
the Communications Decency Act—and the district court properly held
that Section 230 prevented Appellants from pursuing their case against
Twitter.
This Court is no stranger to Section 230. Section 230 affords
broad, bright-line immunity to interactive computer service providers
like Twitter from liability for harm resulting from third-party activity
on their sites. Congress made explicit the policies it sought to advance
with this immunity, including to “promote the continued development of
the Internet and other interactive computer services” while, at the same
time, to “remove disincentives for the development and utilization of
blocking and filtering technologies . . . .” 47 U.S.C. § 230(b). Section
230 therefore was not only about immunizing intermediaries so that the
Internet could thrive and grow; it was also a clear policy choice on how

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best to encourage intermediaries like Twitter and our members to take
their own steps to regulate offensive content on their sites.
Congress reasoned that without such immunity, Internet
companies might not choose to remove content on their site, fearful of
an unrelenting stream of liability for having knowledge of content they
could never perfectly monitor, no matter how much they tried. Or, at
the other extreme, Internet companies might vastly limit the
availability of their services to allow for complete review of all content
ever posted. Congress decided that neither option was acceptable. It
made the express policy choice that imposing liability on the service
providers that host speech was not the right way to deter harmful
online speech.
In the sections that follow, we make three fundamental points:
(1) everyone involved in cases like this one shares a common goal: to
keep offensive content off online services; (2) in Section 230, Congress
decided that broad immunity from liability for third-party content was
the best way to encourage intermediaries to tackle objectionable content
on their services; and (3) the policies underlying Section 230 are at odds
with Appellants’ request to hold Twitter liable for providing accounts
and messaging services.

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II.

ARGUMENT
A.

Our Members Share The Goal Of Ridding Their Services Of
Offensive And Dangerous Content

The thrust of Appellants’ case is that the courts must afford relief
because Internet companies care little about policing offensive and
dangerous activity on their services. That premise is wrong.
Our members have strict rules and policies prohibiting dangerous,
offensive, and terrorist content on their services. Our members work
with law enforcement when encountering content that may pose a
genuine risk of physical harm or a direct threat to public safety. Many
of our members have teams spanning the globe—working 24 hours a
day, 7 days a week—tasked with reviewing reports of content and
accounts that violate their policies and rules. Terrorist accounts and
content are given top priority, and are removed as soon as these
members become aware of them. There are also efforts to encourage
and promote “counterspeech” by moderate voices in response to
extremist ones, by taking actions such as commissioning research on
what makes counterspeech effective, training NGOs about best
counterspeech practices, and offering incentives for certain
organizations and individuals to promote their counterspeech against
terrorism.
Twitter, the Appellee in this case, is no different. Not only does
Twitter prohibit the use of its service to promote terrorism or make

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violent threats, but it suspended over 360,000 accounts between mid2015 and August 2016 alone for threatening or promoting terrorist acts,
primarily related to ISIS. Like other companies, Twitter uses both
teams that review reports of terrorist activities and proprietary
technology tools to identify other potentially objectionable materials.
Twitter has also joined with other Internet companies to create a
shared industry database of “hashes”—unique digital fingerprints—for
violent terrorist imagery or terrorist recruitment videos or images that
they have removed from their services. In July 2015, former FBI
Director James Comey recognized Twitter’s commitment to blocking
terrorist content, praising it as “very good and thoughtful and
hardworking at trying to shut down [terrorism-related] accounts.”
Ryan J. Reilly, “If You’re Trying to Join ISIS Through Twitter, the FBI
Probably Knows About It,” Huffington Post (Jul. 9, 2015),
http://www.huffingtonpost.com/2015/07/09/isis-twitter-fbi-islamicstate_n_7763992.html.2

The information in this paragraph can be found on Twitter’s blog, at:
https://blog.twitter.com/official/en_us/a/2016/combating-violentextremism.html; https://blog.twitter.com/official/en_us/a/2016/anupdate-on-our-efforts-to-combat-violent-extremism.html; and
https://blog.twitter.com/official/en_us/a/2016/partnering-to-help-curbthe-spread-of-terrorist-content-online.html.
2

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Given that our members (including Twitter) are all committed to
preventing terrorists from using their services to spread hateful
propaganda, the question raised by cases like this one is: what is the
appropriate legal framework for achieving those objectives? Congress
has spoken directly on this issue.
B.

The Broad Protections Of Section 230 Are Meant To
Encourage Self-Policing, Among Other Important Goals

In 1995, the New York Supreme Court decided Stratton Oakmont,

Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct.
May 24, 1995). The court in that case held Prodigy, an early online
service provider, liable for defamation based on third-party statements
posted on one of its interactive sites. Stratton was the impetus for
Section 230—Congress disagreed with both its holding and the
implications for the nascent industry of online intermediaries. H.R.
Rep. No. 104-458 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N.
10; see also Fair Housing Council of San Fernando Valley v.

Roommates.com, LLC, 521 F.3d 1157, 1163-64 (9th Cir. 2008) (en banc).
That case is therefore key to understanding what Congress intended in
passing Section 230, and we discuss it in detail here.
Prodigy was one of the first Internet-based social networks in the
world. It operated a computer network with two million users, hosting
“bulletin boards” on which third parties could post their own content.

Stratton, 1995 WL 323710, at *1-2. Prodigy held itself out as a “family
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oriented computer network” and, in pursuit of that goal, took
affirmative steps to remove third-party content on its site—such as
issuing “content guidelines” prohibiting insulting and grossly repugnant
behavior, using a content screening program that identified offensive
language, and using “Board Leaders,” whose responsibility was to
enforce Prodigy’s content guidelines. Id. at *2-3.
But Prodigy’s attempt to address objectionable content on its site
backfired. Rather than acknowledging Prodigy’s efforts to set up and
enforce content guidelines, the court held Prodigy liable for defamatory
third-party content on its bulletin boards because it made “decisions as
to content” such as “actively utilizing technology and manpower to
delete notes from its computer bulletin boards on the basis of
offensiveness and bad taste.” Id. at *4 (internal quotation marks
omitted) (citation omitted). The court found of no consequence the fact
that the “sheer volume” of the bulletin board postings (60,000 per day)
made it impractical for Prodigy to regulate every piece of content on its
site—instead faulting Prodigy’s partial efforts to do so. Id. at *3.
The court distinguished a New York federal case, Cubby, Inc. v.

CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), in which the court
had held a similar online service, CompuServe, free from liability for
third-party content hosted on an “electronic library” of online forums.
The difference? CompuServe had “no opportunity to review the
contents of the publication at issue” and had “little or no editorial
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control over the contents of those publications.” Stratton, 1995 WL
323710, at *4 (internal quotation marks omitted).
The lesson that emerged from Stratton and Cubby was that online
service providers that voluntarily tried to filter some content would
become liable for all content, whereas providers that did nothing would
not. It made no difference that comprehensively reviewing all content—
or getting every content decision “right”—was impossible.
The Stratton court justified its decision with a policy argument
(based exclusively on the facts of that case and a single law review
article): “For the record, the fear that this Court’s finding of publisher
status for PRODIGY will compel all computer networks to abdicate
control of their bulletin boards, incorrectly assumes that the market
will refuse to compensate a network for its increased control and the
resulting increased exposure.” Id. at *5.
It was precisely this approach, and the assumptions underlying it,
that Congress rejected when it enacted Section 230 of the CDA the
following year. See H.R. Rep. No. 104-458 (1996) (Conf. Rep.), reprinted

in 1996 U.S.C.C.A.N. 10 (“One of the specific purposes of this section is
to overrule Stratton-Oakmont v. Prodigy and any other similar
decisions which have treated such providers . . . as publishers or
speakers of content that is not their own because they have restricted
access to objectionable material.”). Section 230 is entitled “Protection
for private blocking and screening of offensive material.” It begins with
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express congressional findings: “Internet and other interactive
computer services . . . represent an extraordinary advance in the
availability of educational and informational resources to our citizens,”
that “offer users a great degree of control . . . as well as the potential for
even greater control in the future as technology develops,” and that
“have flourished, to the benefit of all Americans, with a minimum of
government regulation.” 47 U.S.C. § 230(a)(1)-(5). The statute also
lists a number of policies and goals served by the subsection, including
“to promote the continued development of the Internet,” “to preserve the
vibrant and free market that presently exists for the Internet,” “to . . .
maximize user control,” and “to remove disincentives for the
development and utilization of blocking and filtering technologies.”
47 U.S.C. § 230(b)(1)-(5).
The product of these policies and findings is a law that creates
broad-based immunity for online intermediaries. The relevant
provision reads: “No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided
by another information content provider.” 47 U.S.C. § 230(c)(1). The
title of this subsection is: “Protection for ‘Good Samaritan’ blocking and
screening of offensive material”—yet another indication of Congress’s
interest in encouraging self-policing rather than punishing it. See

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Roommates.com, 521 F.3d at 1163-64 (“the substance of section 230(c)
can and should be interpreted consistent with its caption”).3
In enacting Section 230, Congress made a clear policy choice: the
right way to both encourage the development of the Internet and
incentivize providers to keep harmful content from their services was to
immunize them from liability for third-party content. This immunity
opened the door for online service providers to address harmful content
without fear of inviting liability for failing to catch or remove certain
objectionable content. As this Court sitting en banc explained,
Congress sought to remove the “grim choice” of having to “choose
between taking responsibility for all messages and deleting no
messages at all.” Id. at 1163; see also Carafano v. Metrosplash.com

Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) (The statute is designed at
once “to promote the free exchange of information and ideas over the
Since Section 230 was enacted, Congress has re-affirmed its
commitment to the section’s principles and broad-based immunity. In
2002, Congress passed the “Dot Kids Implementation and Efficiency
Act,” establishing a domain for kid-appropriate material. Pub. L. No.
107-317, 116 Stat. 2766 (2002). In the statute’s committee report,
Congress explained that “[t]he courts have correctly interpreted section
230(c), which was aimed at protecting against liability[.]” H.R. Rep. No.
107-449, at 13 (2002); 28 U.S.C. § 4102(c)(1). As this Court explained in
Roommates.com, “[t]his express Congressional approval of the courts’
interpretation of § 230(c)(1), six years after its enactment, advises us to
stay the course of ‘robust’ webhost immunity.” Roommates.com, 521
F.3d at 1188.
3

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Internet and to encourage voluntary monitoring for offensive or obscene
material.”).
Based on its expansive language, and this clear congressional
mandate, this Court and others have interpreted Section 230 broadly.

See Carafano, 339 F.3d at 1123 (collecting cases and explaining that
courts across the country “have treated § 230(c) immunity as quite
robust” and explained there was a “consensus developing across other
courts of appeals that § 230(c) provides broad immunity”). And they
have done so even in cases dealing with highly objectionable online
content or claims brought by plaintiffs with very sympathetic stories.

See, e.g., Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008);
Klayman v. Zuckerburg, 753 F.3d 1354, 1359 (D.C. Cir. 2014); Johnson
v. Arden, 614 F.3d 785, 791-792 (8th Cir. 2010).
These courts were not indifferent to plaintiffs’ plights, nor did they
approve of the objectionable content at issue. Rather, these cases
reflected a broader commitment to “self-regulation, rather than
regulation compelled at the sword point of tort liability.” Barrett v.

Rosenthal, 40 Cal. 4th 33, 53 (2006).
C.

Holding Intermediaries Liable For Providing Accounts And
Messaging Services Would Gut Section 230

Twitter has explained why, as a matter of law, Section 230 applies
not just to claims arising from particular pieces of objectionable content,
but also to broader publisher activity, including the act of providing
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accounts to users who may misuse them and offering a private online
messaging service. We will not repeat that discussion, but instead here
emphasize that holding Twitter liable on Appellants’ theories would be
entirely at odds with the policies underlying Section 230. Indeed, it
would offer a recipe for evading the statute through artful pleading, a
result that courts have consistently rejected. See, e.g., MySpace, 528
F.3d at 419-420; Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102-03 (9th
Cir. 2009), as amended (Sept. 28, 2009).
As an initial matter, it makes no sense to immunize services
providers for actual third-party content—concrete and visible to all—
but then hold service providers liable for failing to forecast the content a
user might ultimately create at the time that user opens an account.
Indeed, the First Circuit has held that an online platform’s decision “not
[to] prevent a single individual from registering under multiple screen
names”—an act that allegedly “ma[de] it possible for individuals to
spread misinformation more credibly”—was “as much an editorial
decision with respect to that misinformation as a decision not to delete
a particular posting.” Universal Commc’n Sys., Inc. v. Lycos, Inc., 478
F.3d 413, 416, 420, 422 (1st Cir. 2007).
Appellants try to create an artificial distinction between users and
their content—but imposing liability for failing to prevent certain users
from accessing online services is just another way of holding Internet
service providers liable for third-party content. See Fields v. Twitter,
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Inc., 217 F. Supp. 3d 1116, 1123 (N.D. Cal. 2016) (“prohibit[ing] ISIS
members and affiliates from acquiring accounts . . . [is] a policy that
necessarily targets the content, ideas, and affiliations of particular
account holders”); see also Cohen v. Facebook, Inc., Force v. Facebook,

Inc., No. 16-CV-4453 (NGG) (LB), 2017 WL 2192621, at *12 (E.D.N.Y.
May 18, 2017) (“choices as to who may use its platform are inherently
bound up in its decisions as to what may be said on its platform”).
Accepting this distinction would nullify Section 230’s protection of
online services from liability for third-party activity.
It also makes no sense under Section 230 to distinguish between
online public content and content in online messaging. As explained in
detail above, one of the dual purposes of Section 230 was to encourage
robust online communication. Whether that online communication
takes the form of a public post or a single message (shared with a
smaller set) makes no difference to the congressional goals of
“promot[ing] the continued development of the Internet,” “preserv[ing]
the vibrant and free market that presently exists for the Internet,” and
“maximize[ing] user control.” 47 U.S.C. § 230(b)(1)-(5).
Appellants also imply that Twitter should have known not to
provide accounts or messaging to certain users based on the content
these users posted on other accounts. Given the amount of content
posted by third parties on the site, reviewing all potentially-related
content would become an impossible task. Imposing liability for failing
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to do so would not only bring us back to the Stratton regime that
Congress explicitly rejected, it may have precisely the opposite effect of
what our members want—an Internet that is as safe as it is vibrant.
If Appellants prevail, Internet companies, both large and small,
might face the “grim choice”—described by this Court en banc in

Roommates.com. Forcing that dilemma on companies would run the
risk of sabotaging the steps they already take, such as employing teams
of human reviewers to analyze reports of offensive and dangerous
activity on their systems. No one—not even the most sophisticated law
enforcement and intelligence communities in the world—can work with
perfect precision. Congress recognized that holding Internet companies
liable for all user activity in situations like this might make the perfect
the enemy of the good.
III.

CONCLUSION
The District Court correctly applied Section 230 to dismiss this

case. That ruling should be affirmed.
DATED: June 7, 2017

Respectfully submitted,

/s/ Sonali D. Maitra

SONALI D. MAITRA
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
(415) 362-6666
smaitra@durietangri.com

Counsel for Amicus Curiae
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Internet Association

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CERTIFICATE OF COMPLIANCE
I hereby certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and
Ninth Circuit Rule 32-1 this brief complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and (6), because it is written in
14-pt Century Schoolbook font, and with the type-volume limitations of
Fed. R. App. P. 29(d) and Ninth Circuit Rule 29-2(c), because it contains
3,078 words, excluding the portions excluded under Fed. R. App. P.
32(a)(7)(B)(iii). This count is based on the word count feature of
Microsoft Word.

DATED: June 7, 2017

/s/ Sonali D. Maitra
Sonali D. Maitra
DURIE TANGRI LLP

Counsel for Amicus Curiae
Internet Association

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9th Circuit Case Number(s) 16-17165
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