1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REYNALDO GONZALEZ, et al., Plaintiffs, 8 United States District Court Northern District of California ORDER ON MOTION TO DISMISS THIRD AMENDED COMPLAINT 9 v. 10 GOOGLE, INC., 11 12 Case No. 16-cv-03282-DMR Re: Dkt. No. 116 Defendant. Nohemi Gonzalez was murdered during the November 2015 attacks in Paris committed by 13 terrorists associated with the Islamic State of Iraq and Syria (“ISIS”). Plaintiffs are Gonzalez’s 14 surviving family members, including her mother, father, stepfather, and brothers. They seek to 15 hold Defendant Google, Inc. (“Google”) liable for her death under the Anti-Terrorism Act 16 (“ATA”), 18 U.S.C. § 2333, based on Google’s ownership and operation of YouTube. In their 17 third amended complaint, Plaintiffs contend that Google has knowingly provided material support 18 to ISIS in the form of its YouTube platform, that ISIS has used YouTube as a tool to commit 19 terrorism, and that Google has concealed its provision of material support to ISIS. According to 20 21 22 23 24 25 26 Plaintiffs, Google’s material support was a proximate cause of Gonzalez’s death. The court previously dismissed Plaintiffs’ second amended complaint on the ground that their claims were barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), which protects online service providers from liability for material posted on a provider’s website by others. Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150 (N.D. Cal. 2017). Plaintiffs filed a third amended complaint in which they re-allege the same four claims that the court previously found were barred by the CDA, and add two new claims for relief. Google again moves to dismiss. [Docket No. 116.] 27 28 The court vacated the hearing at the parties’ request. [Docket Nos. 122, 124.] The court 1 subsequently ordered Plaintiffs to file a supplemental brief addressing the impact of Fields v. 2 Twitter, 881 F.3d 739 (9th Cir. 2018), which the Ninth Circuit issued after Plaintiffs filed their 3 opposition brief. [Docket No. 124.] Plaintiffs timely filed the supplemental brief. [Docket No. 4 126.] The court finds this matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). 5 For the following reasons, Google’s motion is granted. 6 I. Plaintiffs make the following allegations in the third amended complaint (“TAC”), all of 7 United States District Court Northern District of California BACKGROUND 8 which are taken as true for purposes of this motion.1 [Docket No. 111.] In the fall of 2015, 9 Nohemi Gonzalez was a 26-year old California State University student studying abroad in Paris, 10 France. [Docket No. 111 (TAC) ¶ 471.] On November 13, 2015, Gonzalez was dining with a 11 group of friends at La Belle Équipe, a Paris bistro. A few minutes into their meal, three ISIS 12 terrorists, Abdelhamid Abaaoud, Brahim Abdeslam, and Chakib Akrouh, approached the 13 restaurant and began spraying the patrons with bullets, killing Gonzalez and 18 others. Id. at ¶¶ 14 475-477. Two other groups of ISIS terrorists mounted coordinated attacks that night at other 15 locations in Paris, including the Stade de France and the Bataclan Theatre concert hall. They 16 eventually killed 130 individuals and wounded nearly 400. Id. at ¶¶ 299, 305, 405-435. ISIS 17 issued statements claiming responsibility for the attacks, including audio and video messages 18 posted on YouTube, a free online video platform owned and operated by Google. Id. at ¶¶ 154, 19 179, 436-470. Plaintiffs allege that twelve individual ISIS terrorists were directly involved in the 20 Paris attacks, including the three La Belle Équipe shooters. Id. at ¶ 306. The TAC describes in detail the origins of ISIS, which is a designated foreign terrorist 21 22 organization (“FTO”) under the Immigration and Nationality Act, 8 U.S.C. § 1189. Id. at ¶¶ 82- 23 153. It adds allegations about terrorist attacks in the 1980s, 1990s, and the September 11, 2001 24 attacks in the United States, and the evolution of anti-terrorism legislation that followed these 25 attacks. Id. at ¶¶ 34-81. Plaintiffs allege that YouTube “has played an essential role in the rise of 26 27 28 1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted). 2 1 ISIS to become the most feared terrorist organization in the world.” Id. at ¶ 185. YouTube 2 provides ISIS with a “unique and powerful tool of communication” that enables it to achieve its 3 program of terrorism and motivate others to carry out more terrorist attacks. Id. at ¶ 192; see also 4 id. at ¶¶ 186-91, 193. Plaintiffs contend that ISIS uses YouTube as a means to accomplish many 5 of its goals: 6 10 ISIS not only uses YouTube for recruiting, planning, inciting, and giving instructions for terror attacks, ISIS also uses YouTube to issue terroristic threats, attract attention to its terror attacks and atrocities, instill and intensify fear from terror attacks, intimidate and coerce civilian populations, take credit for terror attacks, communicate its desired messages about the terror attacks, reach its desired audiences, demand and attempt to obtain results from the terror attacks, and influence and affect government policies and conduct. 11 Id. at ¶ 194; see also id. at ¶¶ 195-96, 225. Plaintiffs identify and describe a number of videos that 12 allegedly were posted on YouTube at the direction of individuals affiliated with ISIS, including 13 gruesome depictions of executions of ISIS prisoners. See id. at ¶¶ 126-128, 143-45, 227, 230, 243, 14 245-47, 259-81. According to Plaintiffs, ISIS has recruited more than 30,000 foreign volunteers 15 since 2014 through its use of YouTube and other social media platforms. Id. at ¶ 248. 7 8 United States District Court Northern District of California 9 16 The TAC details the planning and execution of the Paris attacks. Id. at ¶¶ 299-435. 17 Plaintiffs allege that “a major component of the Paris Attack was the messaging disseminated by 18 ISIS prior to, during, and after the events,” and that the planning for the attacks “involved the use 19 of YouTube, before and after the attack, to intensify the fear and intimidation that ISIS intended to 20 inflict by this mass casualty attack.” Id. at ¶¶ 301-303. According to Plaintiffs, ISIS used 21 YouTube’s platform and services to “facilitate and accomplish” the goals of the attacks— 22 intimidation, coercion, and influence. Id. at ¶¶ 300-304. Of the twelve ISIS terrorists who carried 23 out the attacks, Plaintiffs allege that two, Abaaoud and Najim Laachraoui, used online social 24 media platforms to post alleged terrorist recruiting videos. Id. at ¶¶ 355-58, 362. Specifically, 25 Plaintiffs allege that in March 2014, Abaaoud “posted a link on his Facebook account to an ISIS 26 recruiting video on YouTube,” and that Laachraoui “actively followed ISIS social media accounts 27 and posted links to jihadi YouTube videos on his own accounts as well.” Id. at ¶¶ 356-58, 362. 28 The TAC also contains allegations about the operation of the YouTube platform. 3 United States District Court Northern District of California 1 Registered users may establish a YouTube “channel,” post videos on the platform, and post 2 comments on the pages of YouTube channels and videos. Id. at ¶ 163. When a YouTube user 3 posts a video, “Google’s computer servers receive the information and distribute it to the YouTube 4 user’s network of YouTube channel ‘subscribers.’” Id. at ¶ 543. The TAC adds allegations that 5 YouTube “assists ISIS in spreading its message” by recommending ISIS videos to users “based 6 upon the content and what is known about the viewer.” Id. at ¶ 535. Google employs algorithms 7 to help users locate other videos and accounts with similarities, “introducing users to other users 8 and videos that they will be interested in based on the video and account information and 9 characteristics.” Id. at ¶¶ 549-50. “[I]n this way, users are able to locate other videos and 10 accounts related to ISIS even if they do not know the correct identifier or if the original YouTube 11 account has been replaced by a new identifier.” Id. at ¶ 549. Plaintiffs further allege that 12 YouTube is “useful[] in facilitating social networking among jihadists,” since it provides the 13 “ability to exchange comments about videos and to send private messages to other users,” 14 enabling jihadists to rapidly identify each other. Id. at ¶ 553. 15 Plaintiffs further allege that Google derives revenue from ads on YouTube. According to 16 Plaintiffs, Google targets ads to the viewer “based upon algorithms that analyze and use data about 17 the ads, the user, and the video posted. Id. at ¶ 520. Google “agrees to share[] a percentage of the 18 revenue it generates from ads placed before YouTube videos with the user who posts the video.” 19 Id. at ¶ 532. Plaintiffs allege upon information and belief that “Google has reviewed and approved 20 ISIS videos, including videos posted by ISIS-affiliated users, for ‘monetization’ through” its 21 placement of ads with these videos,” and that by approving such videos, “Google has agreed to 22 share with ISIS and ISIS-affiliated users a percentage of revenues generated by these ads.” Id. at 23 ¶¶ 521-22. The TAC includes a screen shot of an example of Google-placed targeted ads 24 alongside what Plaintiffs describe as “an ISIS video” on YouTube. Id. at ¶ 533. Plaintiffs allege 25 that “[t]he video was created by ISIS and was posted by ISIS using a known ISIS account.” Id. 26 They further allege upon information and belief that “the poster complied with YouTube’s terms 27 and conditions, as did YouTube. Thus, YouTube shared revenue with ISIS, the creator and poster 28 of the video[.]” Id. 4 1 2 not make the videos that are posted on YouTube, Plaintiffs allege that Google creates “new unique 3 content” for viewers “by choosing which advertisement to combine with the posted video with 4 knowledge about the viewer.” Id. at ¶ 540. In that way, “Google is not simply passing along 5 content created by third parties”; instead, “Google incorporates ISIS posted videos along with 6 advertisements matched to the viewer to create new content for which Google earns revenue[.]” 7 Id. at ¶ 541; see also id. at ¶ 536 (“Google is itself creating and developing content because it 8 exercises control over what advertisement to match with an ISIS video posting on YouTube.”). 9 Plaintiffs further allege that “Google has recommended ISIS videos to users,” assisting ISIS “in 10 11 United States District Court Northern District of California Plaintiffs also allege that Google is a “content creator.” While admitting that Google does spreading its message.” Id. at ¶ 535. Plaintiffs allege that Google has the ability to deny its YouTube-related services to ISIS, 12 but refuses to do so. Although Google has suspended or blocked certain ISIS-related accounts at 13 various times, prior to the Paris attacks, Google did not make “substantial or sustained efforts to 14 ensure that ISIS would not re-establish the accounts using new identifiers.” Id. at ¶ 493. Even 15 though Google has tools to identify, flag, review, and remove ISIS YouTube accounts, it allows 16 such accounts “to be quickly regenerated.” Id. at ¶¶ 554-55. 17 Finally, the TAC adds allegations that “Google’s own terms and policies ostensibly bar 18 ISIS and other foreign terrorist organizations . . . from using Google[.]” Id. at ¶ 200. However, 19 Plaintiffs allege, “Google has nevertheless knowingly provided its Platform and Services to ISIS, 20 its members and affiliates[.]” Id. at ¶ 201. Thus, “by falsely representing that it does not permit 21 ISIS” to use YouTube “when in fact it has knowingly continued to provide its Platform, Services 22 and accounts to ISIS, Google has concealed and disguised the nature, location, source, or 23 ownership of material support or resources, knowing that they are used in preparation for, or in 24 carrying out, criminal terrorist activity.” Id. at ¶¶ 201-02. 25 Based on these allegations, Plaintiffs contend that Google violated federal prohibitions by 26 providing material support or resources for acts of international terrorism. As in the second 27 amended complaint (“SAC”), Plaintiffs bring four claims for relief under the ATA’s civil remedy 28 provisions, 18 U.S.C. § 2333(a) and (d). Section 2333(a) provides for a private right of action for 5 4 damages sustained in an act of international terrorism: Any national of the United States 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, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. 5 18 U.S.C. § 2333(a). Section 2333(d) provides that liability attaches to those who aid or abet an 6 act of international terrorism by knowingly providing substantial assistance: 1 2 3 7 In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization . . . liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism. 8 9 10 United States District Court Northern District of California 11 18 U.S.C. § 2333(d). Plaintiffs’ first and second claims for relief assert that Google is liable for aiding and 12 13 abetting acts of international terrorism under section 2333(d) because it “knowingly provided 14 substantial assistance” to ISIS and “conspired with ISIS.” TAC ¶¶ 565, 570-71. The third claim 15 for relief asserts that Google is liable under section 2333(a) for providing ISIS with “material 16 support and resources” in violation of 18 U.S.C. § 2339A, a federal criminal statute which 17 prohibits the provision of “material support or resources” to terrorists in the form of services, 18 equipment, and personnel. Id. at ¶¶ 574-78. The fourth claim asserts that Google is liable under 19 section 2333(a) based on its violation of 18 U.S.C. § 2339B(a)(1), which criminalizes the knowing 20 provision of “material support or resources to a foreign terrorist organization.” Plaintiffs contend 21 that Google violates section 2339B(a)(1) by “providing its Platform and Services, including the 22 YouTube platform and other services . . . to and for the benefit of ISIS[.]” Id. at ¶¶ 581-84. The TAC adds a separate basis for claims three and four, based upon Plaintiffs’ allegation 23 24 that Google violated the ATA by knowingly sharing advertising revenue with ISIS. They allege 25 the provision of advertising revenue to ISIS itself constitutes material support in violation of 26 sections 2339A and 2339B. See TAC ¶ 533.2 27 2 28 For purposes of clarity, the court will refer to the parts of claims three and four that are based upon the alleged sharing of advertising revenue with ISIS as the “revenue sharing claims.” 6 The TAC adds two additional claims for relief, both of which seek redress under section 1 2 2333(a). The fifth claim is for concealment of material support and resources to a designated 3 foreign terrorist organization in violation of 18 U.S.C. § 2339C(c). Id. at ¶¶ 587-88. Section 4 2339C(c) prohibits the knowing concealment or disguise of “the nature, location, source, 5 ownership, or control of any material support or resources, or any funds or proceeds of such funds 6 . . . knowing or intending that the support or resources are to be provided, or knowing that the 7 support or resources were provided,” in violation of 18 U.S.C. § 2339B. The sixth claim alleges that Google provides funds, goods, or services to ISIS in violation 8 9 10 of terrorism sanctions regulations issued pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1707, 31 C.F.R. Part 594. Id. at ¶ 592. Google moves to dismiss all of Plaintiffs’ claims on the ground that Section 230 of the United States District Court Northern District of California 11 12 Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230(c)(1), bars any claim that seeks 13 to hold an online service provider liable for injuries allegedly resulting from its hosting of third- 14 party material. It also argues that all of Plaintiffs’ claims are insufficiently pleaded. 15 II. 16 LEGAL STANDARD A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 17 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 18 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 19 of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 20 (per curiam) (citation omitted), and may dismiss a claim “only where there is no cognizable legal 21 theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to 22 relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 23 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 24 2001). A claim has facial plausibility when a plaintiff “pleads factual content that allows the court 25 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 26 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate “more than 27 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 28 Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 7 1 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001), overruled on other grounds by 2 Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 3 III. The court dismissed the SAC because all of Plaintiffs’ claims fell within the scope of 4 5 CDA’s immunity provision, 47 U.S.C. § 230(c)(1), which “immunizes providers of interactive 6 computer services against liability arising from content created by third parties.” See Fair Hous. 7 Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) 8 (en banc). Specifically, the court held that section 230(c)(1) foreclosed any effort by Plaintiffs to 9 impose liability on Google for Nohemi Gonzalez’s death based on Google’s alleged failure to 10 11 United States District Court Northern District of California DISCUSSION prevent ISIS and its followers from posting videos on YouTube. See Gonzalez, 282 F. Supp. 3d at 1165-66. As noted, the TAC re-alleges four claims that are identical or nearly identical to the claims 12 13 14 15 16 17 18 19 20 21 22 23 the court already dismissed (claims one through four), and adds a new theory supporting claims three and four based upon Google’s alleged revenue sharing with ISIS. The TAC also adds new claims for concealment of material support and for violation of terrorism sanctions regulations (claims five and six). Google maintains that section 230(c)(1) blocks all of Plaintiffs’ claims. It asserts that the court’s ruling on the motion to dismiss the SAC applies fully to claims one through four, and that Plaintiffs’ new claims for concealment of material support and violation of terrorism sanctions regulations “are equally barred by Section 230[(c)(1)].” Mot. 9. According to Google, claims five and six rest on the same theory as claims one through four: “that Google’s purported failure to remove certain content and users from YouTube renders Google liable for ISIS’s terrorist attack in Paris.” Mot. 6. Google also moves to dismiss the TAC on the ground that Plaintiffs have not stated claims under the applicable statutes, including failing to plausibly allege proximate cause. 24 25 Plaintiffs contend that none of the claims alleged in the TAC are barred by section 230(c)(1). They also argue that each of their claims is sufficiently pleaded.3 26 27 28 3 Plaintiffs appear to ask the court to take judicial notice of three exhibits attached to their opposition brief. Opp’n Exs. A-C; see Opp’n 3 n.3, 4 n.4, 5 n.6. Exhibit A is a website printout of a United States Senator’s letter to Google’s Chief Executive Officer regarding terrorist content on 8 The court first addresses the parties’ section 230(c)(1) arguments and then turns to the 1 United States District Court Northern District of California 2 sufficiency of the allegations.4 3 A. 4 Plaintiffs assert that none of the claims alleged in the TAC are barred by section 230(c)(1). Section 230(c)(1) 5 In so doing, they improperly reargue a number of issues regarding the applicability of section 6 230(c)(1) that the court rejected in its earlier decision. These include Plaintiffs’ assertion that 7 section 230(c)(1) immunity does not apply to claims brought under the ATA because it was 8 abrogated by the Justice Against Sponsors of Terrorism Act (“JASTA”), Pub. L. No. 114-222, 130 9 Stat. 852 (2016); that section 230(c)(1) immunity does not attach here, because the statute cannot 10 apply outside the territorial jurisdiction of the United States; and that section 230(e)(1)’s exception 11 for federal criminal prosecutions applies to private civil claims based on federal criminal statutes. 12 Plaintiffs also argue that section 230(c)(1) does not apply because Google is an “information 13 content provider” with respect to ISIS videos, and because claims five and six do not seek to treat 14 Google as the speaker or publisher of third party content. 15 1. Background of Section 230(c)(1) 16 Section 230(c), titled “Protection for ‘Good Samaritan’ blocking and screening of 17 offensive material,” provides two types of protection from civil liability. Only the first is relevant 18 here. Section 230(c)(1) mandates that “[n]o provider or user of an interactive computer service 19 shall be treated as the publisher or speaker of any information provided by another information 20 21 22 23 24 25 26 27 28 YouTube. Exhibit B is a website printout of a transcript of a hearing before the Home Affairs Committee of the United Kingdom’s Parliament at which a representative of Google testified, and Exhibit C is a website printout of what appears to be written evidence submitted by Google to the same Parliamentary committee. Federal Rule of Evidence 201 permits courts to take notice of “matters of public record,” Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). However, Plaintiffs did not authenticate any of the exhibits and did not establish that these three printouts are matters of public record. The court declines to take judicial notice of these exhibits. 4 The court notes that both parties tried to incorporate by reference their briefing on the motion to dismiss the SAC. See Mot. 9 n.2; Opp’n 2. This is an improper attempt to skirt the applicable page limits. See Civ. L.R. 7-2, 7-3. The court will consider only those arguments properly presented in the briefing on the current motion. 9 United States District Court Northern District of California 1 content provider.” 47 U.S.C. § 230(c)(1).5 Accordingly, section 230(c)(1) “precludes liability that 2 treats a website as the publisher or speaker of information users provide on the website.” Doe v. 3 Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016). “In general, this section protects 4 websites from liability for material posted on the website by someone else.” Id. Section 230(c)(1) 5 “overrides the traditional treatment of publishers, distributors, and speakers under statutory and 6 common law.” Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003). “As a matter of policy, 7 ‘Congress decided not to treat providers of interactive computer services like other information 8 providers such as newspapers, magazines or television and radio stations, all of which may be held 9 liable for publishing or distributing obscene or defamatory material written or prepared by 10 others.’” Id. at 1026 (quoting Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998)). In the 11 absence of the protection afforded by section 230(c)(1), one who published or distributed speech 12 online “could be held liable for defamation even if he or she was not the author of the defamatory 13 text, and . . . at least with regard to publishers, even if unaware of the statement.” Id. at 1026-27. The Ninth Circuit has held that the CDA “does not declare ‘a general immunity from 14 15 liability deriving from third-party content.’” Internet Brands, 824 F.3d at 852 (quoting Barnes v. 16 Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009)). Nor was it “meant to create a lawless no- 17 man’s land on the Internet.” Roommates, 521 F.3d at 1164. Rather, section 230(c)(1) only 18 protects from liability (a) a provider of an interactive computer service (b) that the plaintiff seeks 19 20 21 22 5 The second immunity provision, section 230(c)(2), states: No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or 23 24 25 (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). . . . 26 27 28 47 U.S.C. § 230(c)(2). 10 1 to treat as a publisher or speaker (c) of information provided by another information content 2 provider. Barnes, 570 F.3d at 1100-01; Roommates, 521 F.3d at 1162. 3 2. Congress enacted JASTA in September 2016. JASTA expanded the ATA by adding 18 4 5 U.S.C. § 2333(d), which provides that US nationals may assert liability against a person who aids 6 and abets or conspires with a person who commits an act of international terrorism.6 JASTA also 7 amended the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611, to add a 8 terrorism-related exception to the FSIA’s grant of immunity to foreign states. JASTA includes the 9 following statement of purpose: 10 The purpose of this Act is to provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States. 11 United States District Court Northern District of California JASTA 12 13 14 JASTA § 2(b). In opposing the motion to dismiss the SAC, Plaintiffs argued that JASTA’s statement of 15 16 purpose repealed the immunity provided by section 230(c)(1), rendering section 230(c)(1) 17 inapplicable to their claims. Plaintiffs now assert that they “stand[] by its [sic] arguments that 18 JASTA commands that Section 230 does not apply to ATA cases.” Opp’n 20. They express 19 disagreement with the court’s decision and provide “clarifications of their position.” Id. The court addressed Plaintiffs’ argument at length in its order on the motion to dismiss and 20 21 concluded that JASTA did not expressly or impliedly repeal section 230(c)(1). Gonzalez, 282 F. 22 Supp. 3d at 1158-61. Plaintiffs’ “clarifications” simply re-hash their previous argument that 23 JASTA’s statement of purpose expressed Congress’s intent to abrogate any limitation on the ATA, 24 including section 230(c)(1). The court considered and rejected this. Id. Their argument in 25 opposition to the current motion is nothing more than an attempt to seek reconsideration on this 26 issue without complying with the local rules, which require a party to obtain leave of court. Civ. 27 28 6 Plaintiffs bring claims one and two pursuant to section 2333(d). 11 1 L.R. 7-9(a). A motion for reconsideration may be made on one of three grounds: (1) a material 2 difference in fact or law exists from that which was presented to the court, which, in the exercise 3 of reasonable diligence, the party applying for reconsideration did not know at the time of the 4 order for which reconsideration is sought; (2) the emergence of new material facts or a change of 5 law; or (3) a manifest failure by the court to consider material facts or dispositive legal arguments 6 presented before such order. Civ. L.R. 7-9(b). United States District Court Northern District of California 7 None of the grounds for reconsideration are present here. Moreover, the local rule makes 8 clear that “[n]o motion for leave to file a motion for reconsideration may repeat any oral or written 9 argument made by the applying party in support of or in opposition to the interlocutory order 10 which the party now seeks to have reconsidered.” Civ. L.R. 7-9(c). Plaintiffs do just that, by 11 repeating the arguments they previously made. The court declines to revisit its prior ruling that 12 JASTA did not repeal section 230(c)(1). 13 3. Extraterritorial Application of Section 230(c)(1) 14 Plaintiffs next ask the court to revisit its ruling that this case does not involve an 15 impermissible extraterritorial application of section 230(c)(1). Plaintiffs previously argued that 16 section 230(c)(1) does not apply outside the territorial jurisdiction of the United States, and that all 17 of the relevant events at issue took place outside the United States. The court applied the RJR 18 Nabisco/Morrison framework in concluding that the focus of section 230(c)(1) is on limiting civil 19 liability, and that here, the location of the conduct relevant to that focus is in this district, where 20 the litigation is filed and where immunity is sought. Gonzalez, 282 F. Supp. 3d at 1161-63 (citing 21 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100-101 (2016), Morrison v. Nat’l 22 Australia Bank Ltd., 561 U.S. 247, 267 (2010)). Thus, the court concluded, this case involves a 23 domestic application of section 230(c)(1). Gonzalez, 282 F. Supp. 3d at 1163. 24 The court observed in a footnote that for the first time at oral argument, Plaintiffs argued 25 “that in determining the statute’s focus for purposes of the two-step extraterritorial inquiry, the 26 court must look at the entire statute, and not just the subsection at issue here.” Id. at 1162 n.4. 27 The court noted that Plaintiffs had not briefed this argument in their opposition and that its basis 28 was unclear. Id. Plaintiffs now attempt to flesh out this argument by asserting that the focus of 12 United States District Court Northern District of California 1 the entire statute “was on empowering parents and others in the United States with tools to 2 minimize exposure to indecent, obscene and other harmful material on the internet.” Opp’n 20. 3 Once again, this is an improper attempt to seek reconsideration on this issue. Plaintiffs fail to 4 demonstrate “[a] manifest failure by the Court to consider material facts or a change of law 5 occurring after the time” of the order on the motion to dismiss the SAC. Nor do they show the 6 existence of “a material difference in fact or law from that which was presented to the Court,” and 7 that “in the exercise of reasonable diligence,” they did not know of such fact or law at the time of 8 the order. See Civ. L.R. 7-9(b). Instead, Plaintiffs interpret the court’s prior order as an invitation 9 to take another run at an argument they previously made and lost. This is improper, for “[a] 10 motion for reconsideration may not be used to raise arguments or present evidence for the first 11 time when they could reasonably have been raised earlier in the litigation.” Marlyn 12 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (emphasis 13 in original) (quotation omitted). 14 Moreover, contrary to Plaintiffs’ current position, the court did not confine its analysis of 15 the statute’s focus to section 230(c)(1). Instead, it examined all of the provisions of section 230 16 and concluded that “the immunities in section 230(c) are far from tangential; they are one of the 17 means by which Congress ‘sought to further First Amendment and e-commerce interests on the 18 Internet while also promoting the protection of minors.’” Gonzalez, 282 F. Supp. 3d at 1163 19 (citing Batzel, 333 F.3d at 1028). The court once again rejects Plaintiffs’ extraterritoriality 20 argument. 21 4. Section 230’s Exception for Federal Criminal Prosecutions 22 Next, Plaintiffs reassert that section 230(c)(1) immunity does not apply to their ATA 23 claims due to the exception to immunity for federal criminal prosecutions set forth in section 24 230(e)(1). Specifically, 47 U.S.C. § 230(e)(1), titled “No effect on criminal law,” states that 25 “[n]othing in [section 230] shall be construed to impair the enforcement of section 223 or 231 of 26 this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of 27 28 13 United States District Court Northern District of California 1 Title 18, or any other Federal criminal statute.”7 According to Plaintiffs, this exception applies to 2 block the application of section 230(c)(1) immunity in private civil claims based on federal 3 criminal statutes. 4 The court already considered and rejected Plaintiffs’ argument that “the ATA’s civil suit 5 provision is part of the ‘enforcement’ of a federal criminal statute, and thus falls outside section 6 230(c)(1)’s protections, in accordance with section 230(e)(1).” Gonzalez, 282 F. Supp. 3d at 1163 7 n.5. The court identified other cases that have concluded that section 230(e)(1) “excludes civil 8 suits,” citing Jane Doe 1 v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. 2016), and Cohen v. 9 Facebook, 252 F. Supp. 3d 140, 157 n.11 (E.D.N.Y. 2017). As with their argument regarding 10 extraterritoriality, Plaintiffs make a late attempt to flesh out their position on this point, asserting 11 that “the Backpage ruling was flawed.” Opp’n 16. They now cite two cases that they claim 12 “support a broader construction of the word ‘enforcement’ that would include private enforcement 13 actions, including action under the ATA.” See id. (citing Nieman v. Versuslaw, No. 12-3104, 14 2012 WL 3201931, at *9 (C.D. Ill. Aug. 3, 2012), and Noah v. AOL Time Warner Inc., 261 F. 15 Supp. 2d 532, 538 (E.D. Va. 2003)). Once again, Plaintiffs improperly seek reconsideration on this issue without complying 16 17 with the local rules. The court’s order was not an invitation or request for additional facts or 18 argument, particularly those that Plaintiffs could have raised in the prior motion. See Marlyn 19 Nutraceuticals, 571 F.3d at 880. Notably, the two cases Plaintiffs now cite in support of their 20 position are not new; both were decided years before the court’s order dismissing the SAC. 21 Moreover, nothing in those cases compels a different conclusion as to whether section 230(e)(1) 22 blocks the application of immunity with respect to private civil claims based upon federal criminal 23 statutes. In Nieman, the court considered whether section 230 would bar a civil claim for violation 24 of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964, and 25 26 27 28 7 47 U.S.C. § 223 prohibits obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications. 47 U.S.C. § 231, the Child Online Protection Act, prohibits the knowing making of a communications by means of the World Wide Web “for commercial purposes that is available to any minor and that includes material that is harmful to minors.” 47 U.S.C. § 231(a)(1). 14 1 concluded that it was “unclear” whether it would do so. 2012 WL 3201931, at *9. The court 2 ultimately concluded that it need not resolve the issue, as the plaintiff had failed to state a RICO 3 claim. Id. In Noah, the court merely recounted the exemptions to section 230 immunity that are 4 set forth in section 230(e)(1)-(4). 261 F. Supp. 2d at 538 (citing 47 U.S.C. § 230(e)). The Noah 5 court held that none of these exceptions precluded the application of section 230(c)(1) to bar 6 discrimination claims based on federal civil rights statutes. Id. at 539. In sum, Nieman and Noah 7 did not engage in any meaningful analysis on the issue presented here, namely, whether section 8 230(c)(1) applies to civil claims brought pursuant to federal criminal statutes based on section 9 230(e)(1)’s exception for federal criminal prosecutions. The court denies Plaintiffs’ request for 10 reconsideration on this issue. United States District Court Northern District of California 11 5. Whether Claims One through Four are Barred by Section 230(c)(1) As noted, section 230(c)(1) provides protection from liability (a) to a provider of an 12 13 interactive computer service (b) that the plaintiff seeks to treat as a publisher or speaker (c) of 14 information provided by another information content provider. Barnes, 570 F.3d at 1100-01. This 15 court previously held that all of the claims in the SAC fell within the scope of section 230(c)(1), 16 noting that Plaintiffs’ claims sought to treat Google as a publisher of third party content, and that 17 Google was not an “information content provider” with respect to ISIS’s YouTube videos.8 18 Gonzalez, 282 F. Supp. 3d at 1163-71. Plaintiffs’ amended claims one through four are based on Google’s alleged provision of 19 20 material support or resources to ISIS. They seek to impose liability on Google for knowingly 21 permitting ISIS and its followers to post content on YouTube. See TAC ¶¶ 565, 569, 574, 581. 22 The following discussion pertains to these claims only. As previously noted, Plaintiffs’ amended 23 claims three and four add a new theory that Google allegedly shared advertising revenue with 24 ISIS; the court addresses the revenue sharing claims separately below in its discussion of whether 25 Plaintiffs have adequately alleged proximate cause. 26 a. Whether Plaintiffs Seek to Treat Google as a Publisher or 27 8 28 The parties do not dispute that Google is an interactive computer service provider. 15 Speaker 1 2 3 Although Plaintiffs broadly assert that that their “new and amended claims do not treat Facebook [sic] as the ‘publisher or speaker’ of third party content, and thus do not trigger CDA protection,” (Opp’n 7), their opposition largely focuses on defending claims five and six. They do 4 not specifically address claims one through four, and do not explain how they have been amended 5 6 so that they do not seek to hold Google liable as the “publisher or speaker” of ISIS’s YouTube videos. Accordingly, Plaintiffs have conceded the issue.9 Other than the new revenue sharing 7 theory which is addressed below, claims one through four have not changed in any meaningful 8 9 way. The court’s prior analysis that the claims in the SAC seek to treat Google as the publisher or speaker of ISIS’s YouTube videos applies equally to claims one through four in the TAC. See 10 Gonzalez, 282 F. Supp. 3d at 1164-67. 11 United States District Court Northern District of California The Ninth Circuit has instructed that in examining whether section 230(c) immunity 12 applies to a particular claim, “what matters is not the name of the cause of action—defamation 13 versus negligence versus intentional infliction of emotional distress—what matters is whether the 14 15 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 1101-02. While “the cause of action most 16 frequently associated with the cases on section 230 is defamation, . . . the language of the statute 17 does not limit its application to defamation cases.” Id. at 1101 (citations omitted). “[C]ourts must 18 ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant’s 19 20 status or conduct as a ‘publisher or speaker.’ If it does, section 230(c)(1) precludes liability.” Id. at 1102. “This guidance emphasizes that Section 230(c)(1) is implicated not only by claims that 21 explicitly point to third party content but also by claims which, though artfully pleaded to avoid 22 direct reference, implicitly require recourse to that content to establish liability or implicate a 23 defendant’s role, broadly defined, in publishing or excluding third party [c]ommunications.” 24 Cohen, 252 F. Supp. 3d at 156 (discussing FTC v. LeadClick Media, LLC, 838 F.3d 158, 175 (2d 25 26 9 27 28 Plaintiffs acknowledge this concession by stating that they “have largely retained the factual allegations and claims from the SAC to preserve them in the event an appeal may be necessary.” Opp’n 2 n.2. 16 United States District Court Northern District of California 1 Cir. 2016) (quoting Barnes, 570 F.3d at 1102)). 2 Claims one through four seek to impose liability on Google for knowingly permitting ISIS 3 and its followers to post content on YouTube. See TAC ¶¶ 565, 569, 574, 581. These claims still 4 “inherently require[] the court to treat [Google] as the publisher or speaker of [third-party] 5 content” because they “require recourse to that content to establish liability or implicate a 6 defendant’s role . . . in publishing or excluding third party communications.” Gonzalez, 282 F. 7 Supp. 3d at 1164-65 (quoting Barnes, 570 F.3d at 1101-02; Cohen, 252 F. Supp. 3d at 156)). The 8 TAC alleges that Google “knowingly provided” its YouTube platform and other services to ISIS, 9 and that ISIS “embraced and used” YouTube “as a powerful tool for terrorism,” allowing it “to 10 connect its members and to facilitate [its] ability to communicate, recruit members, plan and carry 11 out attacks, and strike fear in its enemies.” TAC ¶¶ 12, 13, 21. It further alleges that Google 12 “refuse[d] to actively identify ISIS YouTube accounts” or to make “substantial or sustained efforts 13 to ensure that ISIS would not re-establish the accounts using new identifiers.” Id. at ¶¶ 20, 493. 14 Claims one through four allege that Google violated the material support statutes by permitting 15 ISIS and its supporters to publish harmful material on YouTube, and by failing to do enough to 16 remove that content and the users responsible for posting the material. These claims target 17 Google’s decisions whether to publish, withdraw, exclude, or alter content, which is “precisely the 18 kind of activity for which section 230 was meant to provide immunity.” Roommates, 521 F.3d at 19 1170. “[A]ny activity that can be boiled down to deciding whether to exclude material that third 20 parties seek to post online is perforce immune under section 230.” Id. at 1170-71. Claims one 21 through four remain “inextricably bound up with the content of ISIS’s postings, since their 22 allegations describe a theory of liability based on the ‘essential’ role that YouTube has played ‘in 23 the rise of ISIS to become the most feared terrorist organization in the world.’” Gonzalez, 282 F. 24 Supp. 3d at 1165 (quoting SAC). 25 In a contorted argument, Plaintiffs assert that they may rely upon third party content to 26 support their claims without “running afoul of Section 230.” Opp’n 21-22. Although they do not 27 tie this theory to any particular claim in the TAC, it appears to be their response to the court’s 28 determination that the claims in the SAC were “inextricably bound up with the content of ISIS’s 17 United States District Court Northern District of California 1 postings.” Gonzalez, 282 F. Supp. 3d at 1165. Plaintiffs offer a lengthy discussion of In re 2 Incretin-Based Therapies Products Liability Litigation, 721 Fed. Appx. 580, 583 (9th Cir. 2017). 3 There, the Ninth Circuit reversed a trial court’s determination that certain discovery was irrelevant 4 to whether federal law preempted the state law claims, where the discovery was relevant to the 5 merits of the state law claims themselves. According to Plaintiffs, In re Incretin-Based Therapies 6 supports their argument that “[e]vidence which would support” a finding that Google violated the 7 ATA “is not the same as holding [Google] responsible for the content of third parties.” Opp’n 23. 8 Plaintiffs’ argument is hard to follow and not persuasive. In re Incretin-Based Therapies does not 9 address section 230(c)(1) or the ATA. Plaintiffs’ argument appears to be a variation on their 10 previous contention that their claims are based upon “Google’s provision of the means for ISIS 11 followers to self-publish content, rather than challenging the actual content itself.” See Gonzalez, 12 282 F. Supp. 3d at 1165. The court rejected this argument, holding that Plaintiffs’ allegations in 13 the SAC were inconsistent with their attempt to avoid section 230 immunity by “divorc[ing] 14 ISIS’s offensive content from the ability to post such content.” Id. So too here. Plaintiffs do not 15 allege that they have been harmed by the mere provision of the YouTube platform to ISIS and its 16 followers. Instead, they allege that “ISIS uses YouTube as a tool and a weapon of terrorism,” and 17 that ISIS recruits, plans, incites, instructs, threatens, and communicates its terror message on 18 YouTube. TAC ¶¶ 194, 196. Plaintiffs’ claims “are not premised solely on the theory that Google 19 provided a publishing or communication platform to ISIS; they are further grounded in the 20 allegation that Google failed to prevent ISIS from using YouTube to transmit its hateful message, 21 which resulted in great harm.” Gonzalez, 282 F. Supp. 3d at 1165. Plaintiffs repeat those 22 allegations in the TAC. See TAC ¶¶ 185, 193, 304. 23 24 In sum, the court concludes that Plaintiffs’ claims one through four seek to treat Google as the publisher or speaker of ISIS’s YouTube videos. 25 26 b. Whether Google is an Information Content Provider Without tying their argument to any particular claim, Plaintiffs next argue that Google is 27 an information content provider because it “actively recommend[s]” ISIS videos to YouTube 28 users. Opp’n 23. 18 United States District Court Northern District of California 1 The CDA defines “information content provider” as “any person or entity that is 2 responsible, in whole or in part, for the creation or development of information provided through 3 the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). While a website 4 operator like Google can be both an “interactive computer service” and an “information content 5 provider,” Roommates, 521 F.3d at 1162, “[t]he critical issue is whether . . . [the interactive 6 computer service] acts as an information content provider with respect to the information” at issue. 7 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (quotation omitted). 8 In Roommates, the court interpreted the term “development” as used in the section 9 230(f)(3) definition of “information content provider” “as referring not merely to augmenting the 10 content generally, but to materially contributing to its alleged unlawfulness.” 521 F.3d at 1167- 11 68. “In other words, a website helps to develop unlawful content, and thus falls within the 12 exception to section 230 [immunity], if it contributes materially to the alleged illegality of the 13 conduct.” Id. at 1168. In Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 410 14 (6th Cir. 2014), the Sixth Circuit adopted the definition of “development” from Roommates and 15 held that “[a] material contribution to the alleged illegality of the content does not mean merely 16 taking action that is necessary to the display of allegedly illegal content. Rather, it means being 17 responsible for what makes the displayed content allegedly unlawful.” 18 Plaintiffs previously argued that Google acts as an information content provider by placing 19 targeted ads paired with ISIS-related content, “thus creating ‘new unique content’ in the form of a 20 composite page for specific viewers.” Gonzalez, 282 F. Supp. 3d at 1168; see also TAC ¶¶ 536- 21 41. The court rejected this theory, holding that Plaintiffs had not alleged that Google “materially 22 contribut[ed]” in any way to the actual content of ISIS’s YouTube videos” or that the “targeted ad 23 algorithm is anything but content neutral.” Gonzalez, 282 F. Supp. 3d at 1168. In the TAC, 24 Plaintiffs add one paragraph to support a new theory that Google acts as an information content 25 provider by “recommend[ing] content to users based upon the content and what is known about 26 the viewer.” TAC ¶ 535. The TAC contains only one screenshot example of an alleged “video 27 that was recommended to a user based upon other videos he had viewed in the past,” but it is not 28 obvious from reviewing the screenshot what is being recommended and whether it has any 19 1 connection to ISIS. See id. Plaintiffs allege upon information and belief that Google’s 2 recommendation of ISIS videos “is a common occurrence.” Id. According to Plaintiffs, “by 3 promoting unsolicited ISIS content to users, Google is contributing to the illegality [of the content] 4 because Google is using the ISIS content for business purposes.” Opp’n 24. 5 6 allegation that Google “materially contribut[ed]” in any way to the content of ISIS videos by 7 promoting ISIS-related content. It does not allege that Google’s content recommendation features 8 either created or developed ISIS content, or played any role at all in making ISIS’s terrorist videos 9 objectionable or unlawful. See Gonzalez, 282 F. Supp. 3d at 1168-70. 10 United States District Court Northern District of California Plaintiffs’ “new” theory fares no better this time around. The TAC does not contain any In Roommates, the court distinguished between a website that merely provides “neutral 11 tools” that may be used by third parties to post unlawful content, and a website that “both elicits 12 the allegedly illegal content and makes aggressive use of it in conducting its business.” 521 F.3d 13 at 1171-72. The court held that a search engine’s provision of “neutral tools to carry out what may 14 be unlawful or illicit searches does not amount to ‘development’ for purposes of the immunity 15 exception.” Id. at 1169. As with Google’s targeted ad algorithm, there is no indication that its 16 content recommendation tool is anything other than content neutral. See Gonzalez, 282 F. Supp. 17 3d at 1168. Plaintiffs dispute this, arguing that Google’s promotion of ISIS videos is not content 18 neutral because “it looks to the content as well as the characteristics of the targeted viewer to 19 decide which videos should be promoted.” Opp’n 24. However, this contention is not borne out 20 by the allegations in the TAC. In discussing the content recommendation tool in the TAC, 21 Plaintiffs allege that “Google uses computer algorithms to match videos and accounts with 22 similarities, so that similar YouTube videos and accounts are suggested to a user or viewer when 23 viewing a YouTube account,” and that Google’s content recommendation tool applies broadly 24 across YouTube. See TAC ¶¶ 535, 543, 544, 548-50, 549. Google’s use of an algorithm that 25 aggregates user and video data to make content recommendations across YouTube, whether the 26 recommended content is an ISIS video or a cat video, does not turn Google into an “information 27 content provider” with respect to the videos themselves. 28 This conclusion finds support in Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270 (9th Cir. 2016), 20 United States District Court Northern District of California 1 in which the Ninth Circuit rejected the contention that the Yelp website’s republication of an 2 allegedly defamatory review in the form of “proactively post[ing] advertisements or promotional 3 links [to the negative review] on Google” transformed Yelp into an information content provider 4 as to that review. The court noted that “[n]othing in the text of the CDA indicates that immunity 5 turns on how many times an interactive computer service publishes ‘information provided by 6 another information content provider[,]’” and held that “[j]ust as Yelp is immune from liability 7 under the CDA for posting user-generated content on its own website, Yelp is not liable for 8 disseminating the same content in essentially the same format to a search engine, as this action 9 does not change the origin of the third-party content.” Id. (quoting 47 U.S.C. § 230(c)(1)). As 10 with the Yelp review at issue in Kimzey that was linked to a different website, Google’s content 11 recommendation tool “does not change the origin of the third-party content” that it recommends. 12 See id. Google’s provision of neutral tools such as its content recommendation feature does not 13 make Google into a content developer under section 230, because as currently alleged, the tools do 14 not encourage, elicit, or make aggressive use of the posting of unlawful or objectionable material. 15 See Roommates, 521 F.3d at 1171-72. 16 Section 230(c)(1) “precludes treatment as a publisher or speaker for ‘any information 17 provided by another information content provider.’” Carafano, 339 F.3d at 1125 (emphasis in 18 original) (quoting 47 U.S.C. § 230(c)(1)). “The critical issue is whether . . . [the interactive 19 computer service] acts as an information content provider with respect to the information” at issue. 20 Id. (quotation omitted). Here, the TAC does not allege that Google acted as an “information 21 content provider” with respect to the information at issue, i.e., the offending ISIS videos. 22 Accordingly, Google satisfies the third element of section 230(c)(1) immunity. Plaintiffs’ claims 23 one through four (other than the revenue sharing theory in claims three and four, discussed below) 24 fall within the scope of section 230(c)(1)’s grant of immunity and are therefore barred. 25 6. Whether Claims Five and Six are Barred by Section 230(c)(1) 26 Plaintiffs’ fifth claim for relief is for concealment of material support and resources to a 27 designated foreign terrorist organization in violation of 18 U.S.C. § 2339C(c). TAC ¶¶ 587-88. 28 According to Plaintiffs, this claim is not based upon Google’s role in providing a publishing 21 United States District Court Northern District of California 1 platform. Instead, Plaintiffs state this claim is based upon the allegation that Google violated 2 section 2339C(c) “with regard to material support or resources that other individuals and entities 3 provided to ISIS in violation of § 2339B.” Opp’n 8 (emphasis added). According to Plaintiffs, 4 Google has enabled ISIS to continue its terrorist activities “by concealing the material support and 5 resources provided by ISIS leaders, members, affiliates and recruits to ISIS via Google’s Platform 6 and Services.” Id. at 5 (citing TAC ¶ 298). 7 In their opposition, Plaintiffs argue that this claim does not require the court to treat 8 Google as the publisher or speaker of third party content, because it is not based on Google’s own 9 provision of material support or resources to ISIS. Opp’n 12-13. Once again, this contention does 10 not square up with the allegations supporting the concealment claim. According to the TAC, 11 Plaintiffs seek to hold Google liable based on its operation of YouTube. Plaintiffs allege that even 12 though “Google’s own terms and policies ostensibly bar ISIS and other foreign terrorist 13 organizations . . . from using Google . . . and Google has publicly claimed that it does not permit 14 ISIS to use Google’s Platform and Services . . . in practice, Google has nevertheless knowingly 15 provided its Platform and Services to ISIS, its members and affiliates[.]” TAC ¶¶ 200-201. Thus, 16 “by falsely representing that it does not permit ISIS” to use YouTube “when in fact it has 17 knowingly continued to provide its Platform, Services and accounts to ISIS, Google has concealed 18 and disguised the nature, location, source, or ownership of material support or resources, knowing 19 that they are used in preparation for, or in carrying out, criminal terrorist activity.” Id. at ¶¶ 201- 20 02 (emphasis added). Plaintiffs’ “new” concealment claim does little more than restate the 21 material support claims in a slightly different form. All of those claims are barred by section 22 230(c)(1) as discussed above. Based on the allegations in the TAC, at its core, Plaintiffs’ 23 concealment claim ultimately seeks to hold Google liable for allegedly failing to prevent ISIS and 24 its supporters from using YouTube, and by failing to remove ISIS videos from YouTube. As with 25 claims one through four, the concealment claim “requires recourse to that content” to establish any 26 causal connection between Google permitting ISIS to use YouTube and the Paris attack. The 27 claim thus “inherently requires the court to treat [Google] as the ‘publisher or speaker’” of ISIS 28 content. See Cohen, 252 F. Supp. 3d at 156; Barnes, 570 F.3d at 1101-02; see also Gonzalez, 282 22 1 United States District Court Northern District of California 2 F. Supp. 3d at 1165; TAC ¶¶ 12, 13, 21. Plaintiffs’ sixth claim alleges that Google provides funds, goods, or services to ISIS in 3 violation of terrorism sanctions regulations issued pursuant to IEEPA. TAC ¶ 592. IEEPA 4 authorizes the President to “declare[] a national emergency” in order to “deal with any unusual 5 and extraordinary threat, which has its source in whole or substantial part outside the United 6 States, to the national security, foreign policy, or economy of the United States.” 50 U.S.C. § 7 1701(a). 50 U.S.C. § 1705 provides that it is unlawful to violate any regulations issued under 8 IEEPA and authorizes civil and criminal penalties for such violations. President Bush exercised 9 his authority under IEEPA to issue Executive Order 13224 on September 23, 2001, which blocked 10 the property and interests that are in the United States of specific foreign persons listed in an 11 attachment to the Executive Order, as well as others who provide support, services, or assistance 12 to, or otherwise associate with, designated terrorists. 66 FR 49079, Exec. Order No. 13224, 2001 13 WL 34773846. Federal regulations enacted pursuant to the Executive Order and IEEPA prohibit 14 any “U.S. person [from] engag[ing] in any transaction or dealing in property or interests in 15 property of persons whose property and interests in property are blocked . . . including . . . [t]he 16 making of any contribution or provision of funds, goods, or services by, to, or for the benefit of 17 any person whose property and interests in property are blocked . . .” 31 C.F.R. § 594.204(a). 18 They also prohibit “any transaction by any U.S. person or within the United States . . . that evades 19 or avoids, has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set 20 forth in [31 C.F.R. Part 594].” 31 C.F.R. § 594.205(b). See TAC ¶¶ 66-67. 21 Plaintiffs allege that “Google knowingly and willfully engaged in transactions with, and 22 provided funds, goods, or services to or for the benefit of, Specially Designated Global Terrorists . 23 . . including ISIS, its leaders, and members,” violating Executive Order 13224, 31 C.F.R. Part 594, 24 and 50 U.S.C. § 1705. TAC ¶ 592. According to Plaintiffs, Google violated IEEPA “when it 25 received property or interest in property of ISIS and its operatives” and “permit[ed] any access to 26 ISIS property that came into Google’s possession (including inter alia downloading or copying 27 videos, which are not traditional publishing functions)[.]” Opp’n 15-16. 28 As with claim five, Plaintiffs’ IEEPA claim is a restated version of their material support 23 1 claims. It is based on the allegation that Google provided services to ISIS by permitting ISIS 2 supporters to use the YouTube platform, including allowing supporters to post videos (“received 3 property or interest in property of ISIS”) and utilize YouTube’s functions (including 4 “downloading or copying videos”). This claim ultimately seeks to hold Google liable for failing 5 to prevent ISIS and its supporters from using YouTube and failing to remove ISIS-related content 6 from YouTube. As with the prior claims, the IEEPA claim “requires recourse to that content” to 7 establish any causal connection between YouTube and the Paris attack, and “inherently requires 8 the court to treat [Google] as the ‘publisher or speaker’” of ISIS content. See Cohen, 252 F. Supp. 9 3d at 156; Barnes, 570 F.3d at 1101-02; see also Gonzalez, 282 F. Supp. 3d at 1165; TAC ¶¶ 12, 10 United States District Court Northern District of California 11 13, 21. Since claims five and six seek to treat Google as the publisher or speaker of third party 12 content, and the TAC does not allege that Google is an information content provider with respect 13 to ISIS-related content posted on YouTube, the court concludes that Plaintiffs’ fifth and sixth 14 claims for relief are barred by section 230(c)(1). 15 B. 16 Google also moves to dismiss Plaintiffs’ section 2333(a) claims on the ground that they Whether Plaintiffs Have Adequately Alleged Proximate Cause 17 have failed to plausibly allege that Google’s alleged wrongdoing proximately caused their injuries. 18 Mot. 18-19. Plaintiffs bring claims three, four, five, and six pursuant to section 2333(a), which 19 authorizes a private right of action for damages sustained in an act of international terrorism: 20 21 22 23 Any national of the United States 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, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. 18 U.S.C. § 2333(a). These include Plaintiffs’ revenue sharing claims, which are based upon the 24 allegations in the TAC that Google violated the ATA by knowingly sharing advertising revenue 25 with ISIS, and that the provision of advertising revenue to ISIS itself constitutes material support 26 in violation of sections 2339A and 2339B. See TAC ¶ 533. Google contends that section 27 2333(a)’s “‘by reason of’ language incorporates a proximate cause standard that requires a close 28 24 1 causal connection: that the defendants’ actions ‘led directly’ to Plaintiffs’ injuries.” Mot. 18 2 (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006)). According to Google, 3 Plaintiffs’ allegations do not satisfy this standard. On January 31, 2018, after Plaintiffs filed their opposition brief, the Ninth Circuit issued 4 5 Fields, in which the court held that in order to satisfy the “by reason of” proximate cause 6 requirement to impose civil liability under 18 U.S.C. § 2333(a), “a plaintiff must show at least 7 some direct relationship between the injuries that he or she suffered and the defendant’s acts.” 8 881 F.3d 739, 744. The court granted Plaintiffs leave to file a supplemental brief addressing the 9 impact of Fields on their allegations. Plaintiffs timely filed the supplemental brief. [Docket No. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 126.] In contrast with claims three through six, Plaintiffs bring claims one and two pursuant to section 2333(d). JASTA expanded ATA liability by adding section 2333(d) to reach “any person who aids and abets, by knowingly providing substantial assistance [to], or who conspires with the person who committed such an act of international terrorism.” 18 U.S.C. § 2333(d)(2). Fields did not address the standards applicable to claims brought pursuant to section 2333(d), and the parties did not brief those standards in the present motion. Therefore, the court does not address the question of whether Plaintiffs adequately pleaded proximate causation as to the section 2333(d) claims. In any event, as discussed above, the section 2333(d) claims are dismissed based on 18 section 230 immunity. 19 The remaining claims three through six are brought pursuant to section 2333(a). As 20 21 22 23 24 25 discussed above, other than the revenue sharing aspects of claims three and four, these claims all fall within the scope of the CDA’s immunity provision and are thus barred. As an alternative holding, the court concludes that these claims also fail for the independent reason that they do not satisfy the proximate causation standard announced in Fields. The revenue sharing claims fail for the same reason. In Fields, the plaintiffs were family members of United States government contractors who 26 were killed in Jordan in an attack for which ISIS later claimed credit. 881 F.3d at 741. The 27 plaintiffs sued Twitter, Inc. (“Twitter”) pursuant to 18 U.S.C. § 2333(a), alleging that Twitter 28 knowingly provided material support to ISIS in violation of 18 U.S.C. §§ 2339A and 2339B in the 25 1 form of Twitter accounts and direct messaging services. Id. at 742. The district court dismissed 2 the complaint, holding among other things that the plaintiffs “had failed to plead that they were 3 injured ‘by reason of’ Twitter’s conduct.” Id. at 741.10 On appeal, the parties disputed the scope 4 of the “by reason of” requirement in section 2333(a). Id. at 744. The plaintiffs argued that 5 “proximate causation is established under the ATA when a defendant’s ‘acts were a substantial 6 factor in the sequence of responsible causation,’ and the injury at issue ‘was reasonably 7 foreseeable or anticipated as a natural consequence.’” Id. at 744 (citing Rothstein v. UBS AG, 708 8 9 F.3d 82, 91 (2d Cir. 2013)). Twitter argued that the “by reason of” standard required the plaintiffs “to show that Twitter’s conduct ‘led directly’ to their injuries.” Fields, 881 F.3d at 744. Noting that “Twitter ha[d] the better of the argument,” the Ninth Circuit held that “for 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purposes of the ATA, it is a direct relationship, rather than foreseeability, that is required.” Id. at 744, 748. In rejecting the plaintiffs’ proximate cause definition, the court noted the plaintiffs’ heavy reliance “on case law emphasizing the fungibility of support to terrorist organizations,” which “only highlights the insufficiency of foreseeability alone as the standard for proximate causation in the ATA context.” Id. at 748-49. The court discussed recent Supreme Court authority rejecting a foreseeability standard of proximate causation for claims brought under a different federal statute. Id. at 748 (citing Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1306 (2017)). In City of Miami, the Supreme Court held that for claims brought under the Fair Housing Act (“FHA”), “foreseeability alone [could] not ensure the close connection that proximate cause requires.” Fields, 881 F.3d at 748 (quoting City of Miami, 137 S. Ct. at 1306). The Supreme Court reasoned that “because ‘[t]he housing market is interconnected with economic and social life,’ an FHA violation could ‘be expected to cause ripples of harm to flow far beyond the defendant’s misconduct,” but there was nothing in the FHA to suggest “that Congress intended to provide a remedy wherever those ripples travel.” Fields, 881 F.3d at 748-49 (quoting City of Miami, 137 S. Ct. at 1306 (quotation omitted)). The Ninth Circuit reached the same conclusion in 26 10 27 28 The district court also held that Twitter was immune from the claims pursuant to section 230, because the plaintiffs’ claims sought to treat Twitter as the publisher of ISIS’s content. Fields, 881 F.3d at 741. The Ninth Circuit affirmed on the ground that the plaintiffs had failed to adequately plead proximate causation, and declined to reach the section 230 issue. Id. at 750. 26 1 Fields: 2 Communication services and equipment are highly interconnected with modern economic and social life, such that the provision of these services and equipment to terrorists could be expected to cause ripples of harm to flow far beyond the defendant’s misconduct. Nothing in § 2333 indicates that Congress intended to provide a remedy to every person reached by these ripples; instead, Congress intentionally used the “by reason of” language to limit recovery. Moreover, we are troubled by the seemingly boundless litigation risks that would be posed by extending the ATA’s bounds as far as foreseeability may reach. 3 4 5 6 United States District Court Northern District of California 7 8 Fields, 881 F.3d at 749. The court affirmed the district court’s conclusion that the plaintiffs had 9 not pleaded that “Twitter’s provision of communication equipment to ISIS, in the form of Twitter 10 accounts and direct messaging services, had any direct relationship” with the plaintiffs’ injuries. 11 Id. at 759. 12 Here, the court concludes that the TAC does not meet the Fields standard of proximate 13 cause. Specifically, the TAC does not allege a direct relationship between the “material support” 14 that Google allegedly provided to ISIS and the Paris attack. While the TAC includes detailed 15 allegations regarding the alleged use of YouTube by ISIS and its affiliates, the TAC does not 16 allege any facts plausibly connecting the general availability of YouTube with the attack itself. 17 Plaintiffs assert in their supplemental brief that the TAC alleges the “extensive use of 18 YouTube by ISIS recruiters to recruit ISIS terrorists in France and Belgium.” Pls.’ Supp. Br. 4 19 (citing TAC ¶¶ 311-41). They also argue that the TAC alleges that the “operational leader of the 20 Paris Attacks, Abdelhami Abaaoud, distributed an ISIS YouTube video of himself recruiting ISIS 21 terrorists, and the suicide bomb-maker of the Paris Attacks, Najim Laachraoui, also distributed 22 links to jihadi YouTube videos.” Id. (citing TAC ¶¶ 344-63). However, the actual allegations 23 supporting these claims are far too attenuated and speculative to establish proximate causation 24 between Google’s operation of YouTube and the Paris attacks. For example, as to allegations 25 regarding the use of YouTube to recruit terrorists in France and Belgium, the TAC alleges that 26 there were three “active and successful ISIS recruiting networks in Belgium”: Sharia4Belgium, 27 Resto du Tawhid, and the Zerkani Network. TAC ¶ 310. Plaintiffs then allege a connection 28 between the Zerkani Network and the Paris Attacks, in that Abbaoud, “considered the operational 27 1 leader of the Paris Attack,” was one of Zerkani’s recruits. Id. at ¶ 344. Plaintiffs allege that the 2 founders of the three recruiting networks “used and relied on social media to build and maintain 3 connections with ISIS recruits,” TAC ¶ 332, but the TAC alleges that only Sharia4Belgium and 4 Resto du Tawhid “used YouTube as a primary tool for indoctrination and recruitment to ISIS.” Id. 5 at ¶¶ 333-39. The TAC does not actually contain allegations about the Zerkani Network’s use of 6 YouTube. United States District Court Northern District of California 7 As to Abbaaoud, the TAC alleges only that Abaaoud “was an active user of social media,” 8 including YouTube, and that in March 2014, over a year and a half before the Paris attacks, 9 Abaaoud “posted a link on his Facebook account to an ISIS recruiting video on YouTube in which 10 Abaaoud and other ISIS members in Syria and Iraq appear, describing their life and role in ISIS.” 11 TAC ¶¶ 349, 356-58. With respect to Laachraoui, who Plaintiffs allege “prepared the explosives 12 for the suicide bombs used in the Paris Attack,” the TAC alleges only that he “actively followed 13 ISIS social media accounts and posted links to jihadi YouTube videos on his own accounts as 14 well.” Id. at ¶¶ 359, 362. These are the only allegations connecting any of the individuals who 15 committed the Paris attack to YouTube. They do not support a finding that Google’s provision of 16 the YouTube platform to ISIS “had any direct relationship with the injuries” that Plaintiffs 17 suffered. See Fields, 881 F.3d at 749. 18 Plaintiffs’ revenue sharing claims also do not support a finding of proximate causation 19 under the Fields standard. Plaintiffs allege on information and belief that Google shared 20 advertising revenue with ISIS. They argue that “such support contributed to the Paris attack 21 because even if not used directly, [it] allowed other ISIS funds to be used to support the attack.” 22 Opp’n 24-25; see TAC ¶ 533. This theory, which rests on the fungibility of financial contributions 23 to terrorists, is identical to an argument the Ninth Circuit expressly rejected in Fields. See Fields, 24 881 F.3d at 748-49. Specifically, the Ninth Circuit held that “[a]ccepting the fungible nature of 25 material support does not require a court to also hold that any reckless contribution to a terrorist 26 group or affiliate, no matter its attenuation, must result in civil liability. Thus, the fact of 27 fungibility does not modify the causal requirement imposed by the ATA’s ‘by reason of’ 28 element.” Id. at 749 (emphasis added) (citations omitted). Plaintiffs do not allege any direct 28 1 causal connection between the Paris attack and any shared revenue provided to ISIS in connection 2 with the single YouTube video alleged in the TAC. The TAC contains numerous allegations that mirror those rejected as insufficient in Fields: 4 that Google’s “alleged provision of material support to ISIS facilitated the organization’s growth 5 and ability to plan and execute terrorist attacks.” See Fields, 881 F.3d at 749-50; see TAC ¶ 293 6 (“Google’s Platform and Services have played an essential role in enabling ISIS to grow, develop, 7 and project itself as the most feared terrorist organization in the world”); see also TAC ¶¶ 282-92, 8 294-98. As the Ninth Circuit recognized, such allegations are not enough to show proximate 9 causation. See Fields, 881 F.3d at 749-50. Accordingly, claims three through six, including 10 Plaintiffs’ revenue sharing claims, are dismissed for failure to adequately plead proximate 11 causation. 12 IV. 13 CONCLUSION For the foregoing reasons, the TAC is dismissed. With the exception of Plaintiffs’ revenue 14 sharing claims, the claims in the TAC are all premised on the theory that Google permitted ISIS 15 and its supporters to use the YouTube platform to disseminate a terrorist message. Claims five 16 and six simply attempt to repackage this theory under a different name. All of these claims fall 17 within the scope of the CDA’s immunity provision and are thus barred. As Plaintiffs have already 18 been given an opportunity to amend the complaint to avoid CDA immunity, all of their claims 19 other than the revenue sharing claims are dismissed with prejudice. Since the court cannot 20 conclude that further amendment of Plaintiffs’ revenue sharing claims would be futile, they are 21 granted one final opportunity to amend those claims in a manner consistent with Rule 11. Any 22 amended complaint shall be filed within 14 days of the date of this order. The fourth amended 23 complaint may not contain any claims for relief that the court has already dismissed. IT IS SO ORDERED. NO RT 28 Judge D ER H 29 FO Donna M. Ryu yu United States Magistrate na M. R onJudge 27 R NIA ED ORDER O S S I IT ______________________________________ LI 26 Dated: August 15, 2018 A 25 ISTRIC ES D TC T TA RT U O S 24 UNIT ED United States District Court Northern District of California 3 N F D IS T IC T O R C