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 RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, I hereby
certify that Appellee Facebook, Inc. is a publicly traded corporation
principally engaged in providing and maintaining a social-networking
service. No parent corporation or publicly held corporation owns 10
percent or more of its stock.

/s/ Craig S. Primis
Craig S. Primis, P.C.
KIRKLAND & ELLIS LLP
655 Fifteenth Street N.W.
Washington, DC 20005
(202) 879-5000
craig.primis@kirkland.com

 TABLE OF CONTENTS
STATEMENT OF JURISDICTION ......................................................... ix
STATEMENT OF THE ISSUES ............................................................... x
INTRODUCTION ...................................................................................... 1
STATEMENT OF THE CASE .................................................................. 4
STANDARD OF REVIEW......................................................................... 8
SUMMARY OF THE ARGUMENT .......................................................... 9
ARGUMENT ........................................................................................... 11
I.

SECTION 230 OF THE CDA BARS ALL OF APPELLANTS’
CLAIMS AS A MATTER OF LAW. ............................................... 11
A.

The District Court Did Not Err By Determining CDA
Immunity At The Pleadings Stage. ...................................... 12

B.

Section 230 Immunizes Providers Of Interactive
Computer Services From Liability For Content Created
By Third-Party Users. ........................................................... 13

C.

Section 230 Bars Appellants’ Claims As A Matter Of
Law. ....................................................................................... 16
1.

Facebook Is an Interactive Computer Service. ........... 17

2.

The Amended Complaint Treats Facebook as the
Publisher of Third-Party Content................................ 17

3.

Facebook Did Not Develop the Terrorist Content
at Issue. ........................................................................ 21

D.

The District Court Correctly Held That This Case Does
Not Involve An Extraterritorial Application Of The
CDA. ...................................................................................... 26

E.

The District Court Did Not Err In Concluding That
The CDA Applies To Civil ATA Claims. ............................... 31

F.

This Court Should Not Except From CDA Coverage
Foreign-Law Tort Claims. ..................................................... 37

G.

This Court Should Reject Appellants’ Attempt To Inject
New Facts Into The Record On Appeal. ............................... 39
ii

 II.

APPELLANTS’ ATA CLAIMS FAIL AS A MATTER OF
LAW ................................................................................................ 40
A.

Appellants Have Not Plausibly Alleged That Their
Injuries Occurred “By Reason Of” Facebook’s Activities. .... 41

B.

The Amended Complaint Does Not Plausibly Allege
Direct Liability For An “Act Of International
Terrorism.” ............................................................................ 44

C.

Appellants’ Secondary Liability Theory Under The
ATA Fails As A Matter Of Law. ........................................... 46

CONCLUSION ........................................................................................ 52

iii

 TABLE OF AUTHORITIES
Page(s)
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................... 8
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ............................................................. 14
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................... 8
Blazevska v. Raytheon Aircraft Co.,
522 F.3d 948 (9th Cir. 2008) ............................................................... 29
Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119 (9th Cir. 2003) ....................................................... 14, 29
Cobar v. DEA,
600 F. App’x 31 (2d Cir. 2015) .............................................................. 8
Doe v. MySpace, Inc.,
474 F. Supp. 2d 843 (W.D. Tex. 2007) ................................................ 12
Doe v. MySpace, Inc.,
528 F.3d 413 (5th Cir. 2008) ............................................................... 15
Dowbenko v. Google Inc.,
582 F. App’x 801 (11th Cir. 2014)................................................. 13, 23
Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018) ......................................................................... 36
Fair Hous. Council of San Fernando Valley v.
Roommates.com, LLC,
521 F.3d 1157 (9th Cir. 2008) ............................................................. 25
Fields v. Twitter, Inc.,
200 F. Supp. 3d 964 (N.D. Cal. 2016) ......................................... passim
iv

 Fields v. Twitter, Inc.,
217 F. Supp. 3d 1116 (N.D. Cal. 2016) ................................... 21, 23, 35
Fields v. Twitter, Inc.,
881 F.2d 739 (9th Cir. 2018) ............................................................... 43
Finkel v. Facebook, Inc.,
2009 WL 3240365 (N.Y. Sup. Ct. Sept. 15, 2009) ........................ 16, 17
Franklin v. X Gear 101, LLC,
2018 WL 4103492 (S.D.N.Y. Aug. 28, 2018) ................................ 12, 15
FTC v. LeadClick Media, LLC,
838 F.3d 175 (2d Cir. 2016) .................................................... 19, 25, 26
Gaston v. Facebook, Inc.,
2012 WL 610005 (D. Or. Feb. 24, 2012) ....................................... 16, 17
Goddard v. Google, Inc.,
640 F. Supp. 2d 1193 (N.D. Cal. 2009) ......................................... 12, 25
Gonzalez v. Google, Inc.,
282 F. Supp. 3d 1150 (N.D. Cal. 2017) ....................................... passim
Green v. Am. Online (AOL),
318 F.3d 465 (3d Cir. 2003) .......................................................... 15, 20
Halberstam v. Welch,
705 F.2d 472 (D.C. Cir. 1983) .................................................. 47-48, 50
Herrick v. Grindr, LLC,
306 F. Supp. 3d 579 (S.D.N.Y. 2018) ............................................ 12, 15
Hillman v. Maretta,
569 U.S. 483 (2013) ............................................................................. 38
In re Stock Exchs. Options Trading Antitrust Litig.,
317 F.3d 134 (2d Cir. 2003) ................................................................ 36
In re Terrorist Attacks on Sept. 11, 2001,
714 F.3d 118 (2d Cir. 2013) .......................................................... 41, 43

v

 Jane Doe No. 1 v. Backpage.com, LLC,
817 F.3d 12 (1st Cir. 2016) ......................................................... passim
Jones v. Dirty World Entm’t Recordings LLC,
755 F.3d 398 (6th Cir. 2014) ....................................................... passim
Kiobel v. Royal Dutch Petrol. Co.,
569 U.S. 108 (2013) ............................................................................. 29
Klayman v. Zuckerberg,
753 F.3d 1354 (D.C. Cir. 2014) ................................................... passim
Levitt v. Yelp! Inc.,
2011 WL 5079526 (N.D. Cal. Oct. 26, 2011) ...................................... 24
Morrison v. Nat’l Austl. Bank Ltd.,
561 U.S. 247 (2010) ............................................................................. 27
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) ............................................................................. 36
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250 (4th Cir. 2009) ............................................................... 13
Obado v. Magedson,
2014 WL 3778261 (D.N.J. July 31, 2014)..................................... 12, 34
Parisi v. Sinclair,
774 F. Supp. 2d 310 (D.D.C. 2011) ..................................................... 30
Parkcentral Glob. Hub Ltd. v. Porsche Auto. Holdings SE,
763 F.3d 198 (2d Cir. 2014) .......................................................... 26, 39
Pennie v. Twitter, Inc.,
281 F. Supp. 3d 874 (N.D. Cal. 2017) ..................................... 16, 21, 23
Radzanower v. Touche Ross & Co.,
426 U.S. 153 (1976) ............................................................................ 34
Ricci v. Teamsters Union Local 456,
781 F.3d 25 (2d Cir. 2015) .......................................................... passim

vi

 RJR Nabisco, Inc. v. Euro. Community,
136 S. Ct. 2090 (2016) .................................................................... 26-27
Rothstein v. UBS AG,
708 F.3d 82 (2d Cir. 2013) ............................................................. 41-42
Sikhs for Justice, Inc. v. Facebook, Inc.,
697 F. App’x 526 (9th Cir. 2017)......................................................... 16
Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.,
144 F. Supp. 3d 1088 (N.D. Cal. 2015) ............................................... 17
Strauss v. Credit Lyonnais, S.A.,
925 F. Supp. 2d 414 (E.D.N.Y. 2013).................................................. 42
Tetreau v. Facebook, Inc.,
No. 10-4558-CZ (Mich. Cir. Ct. Feb. 23, 2011) .............................. 16-17
Universal Commc’n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413 (1st Cir. 2007) ............................................................... 24
Zeran v. Am. Online, Inc.,
129 F.3d 327 (4th Cir. 1997) ....................................................... passim
Statutes
18 U.S.C. § 2333 ............................................................................ 5, 35, 41
18 U.S.C. § 2339A .................................................................................... 44
18 U.S.C. § 2239B .............................................................................. 44, 46
18 U.S.C. § 2339C .................................................................................... 46
47 U.S.C. § 230 ................................................................................ passim
Pub. L. No. 114-222, § 2(a)(5), 130 Stat. ................................................. 47
Other Authorities
Facebook, Community Standards,
https://www.facebook.com/communitystandards/ (last
accessed Oct. 2, 2018) ..................................................................... 4, 49
vii

 Facebook, Terms of Service,
https://www.facebook.com/terms.php (last accessed Oct. 2,
2018) .............................................................................................. 49, 50
H.R. Rep. No. 104-458 (1996) .................................................................. 28
S. Rep. No. 102-342 (1992) ...................................................................... 28
Statement of Alan J. Kreczko, S. 2465, Before the
Subcommittee on Courts and Administrative Practice
(July 25, 1990),
https://www.state.gov/documents/organization/28458.pdf ................ 33

viii

 STATEMENT OF JURISDICTION
The District Court had subject matter jurisdiction under 28 U.S.C.
§ 1331 and 18 U.S.C. § 2333. The District Court entered a final judgment
on January 18, 2018, and Appellants filed a timely notice of appeal on
February 8, 2018. A408–32, A433–34.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ix

 STATEMENT OF THE ISSUES
1.

Whether § 230 of the Communications Decency Act (“CDA”),

47 U.S.C. § 230, bars Appellants’ claims under Israeli tort law and the
Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333, et seq.
2.

Whether, irrespective of the application of § 230, Appellants’

ATA claims fail as a matter of law.

x

 INTRODUCTION
This case involves allegations about content posted on Facebook by
a third party—the terrorist group HAMAS—and Facebook’s alleged
failure to remove or block that content. The Amended Complaint claims
that “HAMAS has used Facebook to disseminate propaganda and
messages to its followers and the public,” A37 ¶ 130, and further alleges
that Facebook has “refused to actively monitor its online social media
network to block HAMAS’s use of Facebook” and to “flag, review, and
remove HAMAS Facebook accounts,” A121 ¶¶ 543, 547.

These

allegations bring this case squarely within the immunity afforded by
§ 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230,
which bars claims seeking to hold interactive-computer-service providers
like Facebook liable for the content posted on their platforms by thirdparty users. See, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d 25,
28 (2d Cir. 2015) (per curiam); Klayman v. Zuckerberg, 753 F.3d 1354,
1359 (D.C. Cir. 2014). The District Court properly applied this settled
law to dismiss the Amended Complaint and was on equally solid ground
in rejecting Appellants’ unpersuasive efforts, which are repeated on

 appeal, to cast this case as something other than a complaint about
Facebook’s handling of third-party content on its platform.
Perhaps recognizing the legal hurdle the CDA imposes for their
claims, Appellants make a number of flawed arguments that the CDA
does not apply. First, Appellants are wrong that an affirmative defense
like the CDA cannot be resolved on a motion to dismiss. Courts routinely
grant such motions where an affirmative defense is legally established
on the face of the complaint and frequently do so in CDA cases. See, e.g.,
Ricci, 781 F.3d at 28; Klayman, 753 F.3d at 1357. Second, Appellants’
reliance on the doctrine barring extraterritorial application of U.S. laws
is misplaced. The focus of the CDA is domestic: it creates an immunity
from suit in U.S. courts. There is simply no extraterritoriality issue
because the regulated conduct is the filing of a lawsuit, a domestic act,
not whatever conduct forms the basis of the underlying lawsuit. See
A212–13. And third, there is no textual basis and Appellants cite no
authority for excluding Anti-Terrorism Act (“ATA”) or foreign-law claims
from application of the CDA. The judgment dismissing this case should
therefore be affirmed.

2

 While the CDA provides ample basis for affirming the District
Court in full, this Court may affirm dismissal of the ATA claims on the
alternative ground that they fail to state a claim. First, none of the four
ATA counts plausibly set forth any facts or theory to substantiate the
claim that Facebook was the proximate cause of the terrorist attacks
identified in the Amended Complaint. Second, the fact that HAMAS
members created accounts on Facebook’s open platform cannot, as a
matter of law, give rise to direct liability for “knowing” acts of
international terrorism by Facebook.

And finally, as to secondary

liability under the ATA, the Amended Complaint contains no plausible
allegations that Facebook aided and abetted, or conspired with, HAMAS
in carrying out terrorist attacks.
The District Court was correct to dismiss this case. Facebook has
been consistent that there is no room for terrorists or terrorist activity on
its platform. Facebook empathizes with all victims of terrorism and takes
steps every day to rid Facebook of terrorist content. But the allegations
in the Amended Complaint are meritless. The CDA protects neutral
platforms like Facebook from suit over content posted by third parties
and Facebook’s efforts to remove it; and in any event Facebook neither

3

 engaged in nor supported any terrorist activity within the meaning of any
applicable provision of the ATA. Accordingly, this Court should affirm
the District Court’s decision granting Facebook’s motion to dismiss.
STATEMENT OF THE CASE
Facebook enables people, businesses, and organizations to connect
and share content with billions of other people around the world. See
A29–30 ¶¶ 91–94. Users can view content shared by others on one or
more of the hundreds of millions of Facebook pages maintained on the
platform. To access Facebook, a user must open an account and agree to
abide by the terms of service, including a set of Community Standards.
Those Community Standards, which are incorporated by reference into
the Amended Complaint, state that Facebook “do[es] not allow any
organizations or individuals that are engaged in,” among other things,
“[t]errorist activity” or “[m]ass or serial murder” to “have a presence on
Facebook.”

Facebook,

Community

Standards,

https://www.facebook.com/communitystandards/ (last accessed Oct. 2,
2018). Facebook also “remove[s] content that expresses support or praise
for [terrorist] groups, leaders, or individuals.”

Id.

Terrorist

organizations are therefore not permitted to maintain an account, page,

4

 or group on Facebook, and Facebook does not allow content that praises
terrorists or terrorist acts.
Appellants are the relatives of American citizens killed or injured
in terror attacks linked to HAMAS, along with one American citizen who
survived such an attack. A15–17 ¶¶ 5–18. They allege that “HAMAS is
among the most widely-known Palestinian terrorist organizations in the
world,” designated by the United States Government as a Foreign
Terrorist Organization since 1997. A14 ¶ 2. Appellants further claim
that HAMAS “openly maintain[s] . . . Facebook accounts with little or no
interference.” A14–15 ¶ 3. In Appellants’ view, HAMAS “uses Facebook
to issue terroristic threats, attract attention to its terror attacks, instill
and intensify fear from terror attacks, intimidate and coerce civilian
populations,” and otherwise “carry out the essential communication
components of HAMAS’s terror attacks.” A32 ¶¶ 112–13.
Appellants

filed

this

lawsuit

against

Facebook,

seeking

compensatory damages of “no less than $1 billion,” treble damages,
punitive damages, and attorneys’ fees.

A135 at Prayer for Relief.

Appellants assert seven claims for relief. Counts I through IV assert
claims under the civil remedies provision of the ATA, 18 U.S.C. § 2333,

5

 in which Appellants contend that Facebook aided and abetted, conspired
with, and provided material support to HAMAS. A125–29 ¶¶ 561–85. In
Counts V through VII, Appellants seek to hold Facebook liable under
Israeli law for negligence, breach of statutory duty, and vicarious liability
based on the same alleged provision of material support to HAMAS.
A130 ¶¶ 594–95; A132–33 ¶ 606; A134 ¶¶ 614, 617. The gravamen of
each of these claims is that Facebook should be liable for “providing
services to HAMAS,” A134 ¶ 617, for failing to “flag, review, and remove
HAMAS Facebook accounts,” A121 ¶ 543, and for the use of “algorithms
. . . to suggest friends, groups, products, services and local events, and
target ads that w[ould] be ‘as relevant and interesting’ as possible to each
individual user,” including those potentially interested in terrorist
content, A119 ¶ 530.
The District Court dismissed the Amended Complaint for failure to
state a claim. The court held that all of Appellants’ claims were barred
by § 230 of the CDA, which “shields defendants who operate certain
internet services from liability based on content created by a third party
and published, displayed, or issued through the use of the defendant’s
services.” A204. As the court explained, “[w]hile the Force Plaintiffs

6

 attempt[ed] to cast their claims as content-neutral, even the most
generous reading of their allegations place[d] them squarely within the
coverage of Section 230(c)(1)’s grant of immunity.” A207.1 That was so,
the court concluded, because “Facebook’s choices as to who may use its
platform are inherently bound up in its decisions as to what may be said
on its platform, and so liability imposed based on its failure to remove
users would equally ‘derive[] from [Facebook’s] status or conduct as a
“publisher or speaker.”’” Id. (brackets in original) (citation omitted). The
District Court further opined that dismissal under the CDA was
appropriate because this case “does not require an impermissible
extraterritorial application of Section 230(c)(1),” as “the relevant
‘territorial events or relationships’ occur[red] domestically.” A213.

1

Appellants contend that the District Court “made specific findings
about Facebook’s services.” Appellants’ Br. at 23. That contention is
wrong. The court below decided this case on Facebook’s motion to
dismiss, meaning that the court simply accepted the allegations in the
Amended Complaint as true solely for purposes of resolving that
motion. See A204 (“In reviewing a complaint on . . . a motion [to
dismiss], the court must accept as true all allegations of fact, and draw
all reasonable inferences in favor of the plaintiff.”). The District Court
made no “specific findings” about Facebook’s services or any other fact
in this case.
7

 Appellants filed motions to alter or amend the judgment and for
leave file a second amended complaint, which were both denied. See
A408–32. Addressing many of the same arguments that Appellants now
advance on appeal, the District Court rejected Appellants’ claims that (1)
the CDA does not “apply here because such application ‘would be in direct
conflict with the ATA,’” A415 (citation omitted); and (2) the CDA does not
bar “Israeli-law claims” under the governing conflict-of-laws analysis,
A418. This appeal followed.
STANDARD OF REVIEW
This Court reviews de novo the dismissal of a complaint for failure
to state a claim. See Cobar v. DEA, 600 F. App’x 31, 32 (2d Cir. 2015)
(summary order). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”

Id.

Nor are “legal

conclusion[s] couched as . . . factual allegation[s]” entitled to a
presumption of truth. Id. (quoting Twombly, 550 U.S. at 555).

8

 SUMMARY OF THE ARGUMENT
This Court should affirm the decision below and hold that § 230 of
the CDA forecloses Appellants’ claims as a matter of law. Section 230
bars any cause of action (1) against a provider of an “interactive computer
service”; (2) that seeks to treat that service provider as the “publisher or
speaker” of third-party content; (3) where the service provider did not
participate in creating the content. 47 U.S.C. § 230. Each of these
elements is satisfied here. It is undisputed that Facebook provides an
interactive computer service.

And by trying to impose liability on

Facebook for allegedly not blocking, removing, or adequately screening
terrorist accounts and content, Appellants necessarily seek to treat
Facebook as the publisher of that content.

Finally, the Amended

Complaint contains no plausible allegations showing that Facebook itself
participated in any way in creating or developing the terrorist content at
issue, and Facebook’s use of algorithms that allow users to access content
and make connections does not render it a content “developer” for
purposes of the CDA. The District Court thus correctly held that the
Amended Complaint is barred by § 230.

9

 In an effort to escape the CDA’s bar on claims of this nature,
Appellants make a number of arguments, including (1) that the
presumption against extraterritoriality precludes application of CDA
immunity, and (2) that this Court should except from CDA coverage
claims brought either under the ATA or under foreign law.

Those

arguments are meritless. This case does not implicate the presumption
against extraterritoriality because the purpose of § 230(c)(1) is to bar
certain lawsuits, and the application of that bar in this case occurs
domestically. Moreover, there is nothing in law or logic that exempts civil
ATA or foreign-law claims from CDA immunity. No statutory text or
legislative history creates any such exemptions, and there is no statutory
conflict that would require this Court to create such exemptions out of
whole cloth. To the contrary, other courts have applied CDA immunity
without hesitation to civil ATA claims and claims arising out of conduct
abroad. This Court should do the same.
Although affirming the District Court’s finding of CDA immunity
means that this Court need not address the remaining deficiencies in the
Amended Complaint, those deficiencies nonetheless provide alternative
and independent grounds for affirmance. All four of Appellants’ claims

10

 under the ATA fail as a matter of law because the Amended Complaint
does not plausibly allege that Appellants’ injuries occurred “by reason of”
Facebook’s activities. 18 U.S.C. § 2333(a). Appellants’ claim for direct
ATA liability is also legally deficient because Facebook did not knowingly
commit an “act of international terrorism.” Id. Finally, Appellants’ claim
for secondary liability under the ATA fails because the Amended
Complaint does not plausibly allege that Facebook either aided and
abetted terrorist organizations or in any way conspired with them. See
18 U.S.C. § 2333(d) (2016). For these reasons, too, the decision below
should be affirmed.
ARGUMENT
I.

SECTION 230 OF THE CDA BARS ALL OF APPELLANTS’
CLAIMS AS A MATTER OF LAW.
Section 230 of the CDA bars any cause of action that seeks to hold

an interactive-computer-service provider liable for failing to remove or
screen content created by a third-party user of the service. Because the
theories of liability advanced by Appellants do just that, this Court can
affirm the judgment below on this basis alone.

11

 A.

The District Court Did Not Err By Determining CDA
Immunity At The Pleadings Stage.

There is no merit to Appellants’ suggestion that it was
inappropriate for the District Court to resolve Facebook’s CDA argument
at the motion-to-dismiss stage. See Appellants’ Br. at 36–37. As this
Court

recently

explained,

“[a]lthough

‘[p]reemption

under

the

Communications Decency Act is an affirmative defense, . . . it can still
support a motion to dismiss if the statute’s barrier to suit is evident from
the face of the complaint.’” Ricci, 781 F.3d at 28 (second set of brackets
and ellipsis in original) (quoting Klayman, 753 F.3d at 1357). For the
reasons explained below, application of the CDA in this case is clear from
the face of the Amended Complaint and does not require further factual
development. The District Court thus properly resolved this case on the
pleadings, as numerous other courts have done.2 This conclusion is only

2

See, e.g., Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1196 (N.D. Cal.
2009); Obado v. Magedson, 2014 WL 3778261, at *1, *8 (D.N.J. July 31,
2014); Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 845–46, 849–50 (W.D.
Tex. 2007); Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 584 (S.D.N.Y.
2018); Franklin v. X Gear 101, LLC, 2018 WL 3528731, at *19, *21
(S.D.N.Y. July 23, 2018), R. & R. adopted, 2018 WL 4103492 (S.D.N.Y.
Aug. 28, 2018); Fields v. Twitter, Inc., 200 F. Supp. 3d 964, 966, 971–72
(N.D. Cal. 2016), later ruling affirmed on other grounds, 881 F.3d 739
(9th Cir. 2018); Gonzalez v. Google, Inc., 282 F. Supp. 3d 1150, 1153
(N.D. Cal. 2017).
12

 confirmed by the fact that courts have long “aim[ed] to resolve the
question of § 230 immunity at the earliest possible stage of the case
because that immunity protects websites not only from ‘ultimate
liability,’ but also from ‘having to fight costly and protracted legal
battles.’” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citation omitted).
B.

Section 230 Immunizes Providers Of Interactive
Computer Services From Liability For Content
Created By Third-Party Users.

This Court and others have recognized the “expansive[]” immunity
afforded by the CDA. Ricci, 781 F.3d at 27–28; see also, e.g., Dowbenko
v. Google Inc., 582 F. App’x 801, 804 (11th Cir. 2014) (per curiam); Jones
v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 406–08 (6th Cir.
2014); Klayman, 753 F.3d at 1359. Section 230(c)(1) states that “[n]o
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).

Among the myriad

determinations that courts have viewed as protected under the CDA are
those concerning the removal of third-party content, Ricci, 781 F.3d at
28, those involving who may use the service, Fields, 200 F. Supp. 3d at

13

 971–72, and those pertaining to the “structure and operation” of a
website, Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21 (1st Cir.
2016), cert. denied, 137 S. Ct. 622 (2017).
The broad immunity of § 230 serves important policy goals. Most
notably, it “maintain[s] the robust nature of Internet communication,” by
eliminating “the threat that tort-based lawsuits pose to freedom of
speech.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). As
the Fourth Circuit explained:
It would be impossible for service providers to screen each of
their millions of postings for possible problems. Faced with
potential liability for each message republished by their
services, interactive computer service providers might choose
to severely restrict the number and type of messages posted.
Congress considered the weight of the speech interests
implicated and chose to immunize service providers to avoid
any such restrictive effect.
Id. at 331. In this regard, “Section 230 . . . sought to prevent lawsuits
from shutting down websites and other services on the Internet.” Batzel
v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003). At the same time, § 230
removes disincentives to self-regulation by assuring service providers
that they can safely self-police their sites without the specter of liability
for their editorial choices. Zeran, 129 F.3d at 331; see also Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1122–23 (9th Cir. 2003) (“Congress
14

 enacted this provision . . . to promote the free exchange of information
and ideas over the Internet and to encourage voluntary monitoring for
offensive or obscene material.”).
In light of those policy goals, numerous Courts of Appeals, including
this one, have interpreted § 230(c)(1) broadly to bar all claims seeking to
hold a provider of an internet-based service like Facebook liable for
speech or information posted on the service by a third-party user. See,
e.g., Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (“Congress
provided broad immunity under the CDA to Web-based service providers
for all claims stemming from their publication of information created by
third parties . . . .”); accord Ricci, 781 F.3d at 27–28; Klayman, 753 F.3d
at 1359; Jones, 755 F.3d at 406–08, 416–17; Green v. Am. Online (AOL),
318 F.3d 465, 470-71 (3d Cir. 2003); Zeran, 129 F.3d at 330–31. Courts
have further recognized that failure to apply § 230 as written would “cut
the heart out of section 230 by forcing websites to face death by ten
thousand duck-bites.” Jones, 755 F.3d at 408 (citation omitted).3

3

District courts in this Circuit have likewise applied § 230 to reject
claims seeking to impose liability on service providers for third-party
content. See, e.g., Herrick, 306 F. Supp. 3d at 588–89 (concluding that
§ 230 bars tort claims against internet-service provider related to
abusive accounts operated by third parties); Franklin, 2018 WL
15

 C.

Section 230 Bars Appellants’ Claims As A Matter Of
Law.

In light of this well-established body of law, this Court should
affirm the dismissal of the Amended Complaint. In determining whether
§ 230 of the CDA bars a cause of action, courts ask whether (1) the
defendant is a “provider . . . of an interactive computer service”; (2) the
plaintiff seeks to hold the defendant liable as the “publisher or speaker”
of content; and (3) the allegedly harmful content was “provided by
another information content provider,” not by the defendant. 47 U.S.C.
§ 230(c)(1); see also, e.g., Ricci, 781 F.3d at 27–28; Klayman, 753 F.3d at
1357. All three elements are satisfied here.

3528731, at *19 (similar). And several courts have relied on the CDA
to dismiss lawsuits against Facebook in circumstances similar to those
presented in this case. See, e.g., Klayman, 753 F.3d at 1355
(concluding that CDA barred suit for negligence and intentional
assault based on Facebook’s alleged delay in removing content that
“called for Muslims to rise up and kill the Jewish people”); Sikhs for
Justice, Inc. v. Facebook, Inc., 697 F. App’x 526, 526 (9th Cir. 2017)
(affirming dismissal of discrimination claims because Facebook is
“entitled to the immunity conferred under § 230”); Tetreau v. Facebook,
Inc., No. 10-4558-CZ (Mich. Cir. Ct. Feb. 23, 2011) (similar); Finkel v.
Facebook, Inc., 2009 WL 3240365 (N.Y. Sup. Ct. Sept. 15, 2009)
(similar); Gaston v. Facebook, Inc., 2012 WL 629868, at *6–7 (D. Or.
Feb. 2, 2012) (similar), R. & R. adopted, 2012 WL 610005 (D. Or. Feb.
24, 2012); Pennie v. Twitter, Inc., 281 F. Supp. 3d 874, 875 (N.D. Cal.
2017) (similar); Gonzalez, Inc., 282 F. Supp. 3d at 1153 (similar).
16

 1.

Facebook Is an Interactive Computer Service.

It is undisputed that Facebook is an interactive computer service.
That is because Facebook offers “a service that provides information to
‘multiple users’ by giving them ‘computer access . . . to a computer server,’
47 U.S.C. § 230(f)(2), namely the servers that host its social networking
website.” Klayman, 753 F.3d at 1357; see also Sikhs for Justice “SFJ”,
Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1092–96 (N.D. Cal. 2015)
(finding that Facebook falls squarely within the protections afforded by
the CDA), aff’d, 697 F. App’x 526 (9th Cir. 2017); accord Gaston, 2012 WL
629868, at *6–7; Tetreau, No. 10-4558-CZ; Finkel, 2009 WL 3240365.
2.

The Amended Complaint Treats Facebook as the
Publisher of Third-Party Content.

As the District Court correctly recognized, Appellants’ claims seek
to treat Facebook as the “publisher or speaker” of third-party content.
On appeal, Appellants double down on the same theory of liability that
they unsuccessfully advanced below: that “[b]y providing services to
Hamas, Facebook is liable under the ATA even if it never communicates
any of the Hamas postings to anyone not already part of Hamas, and thus
never publicizes them.” Appellants’ Br. at 51. For at least three reasons,
the CDA bars this “provision of services” theory.

17

 First, the CDA forecloses Appellants’ theory because, at bottom, it
seeks to hold Facebook liable for user-generated content. Appellants’
criticism of Facebook’s alleged provision of accounts and services to
HAMAS operates solely in conjunction with the content allegedly posted
by HAMAS to Facebook. That is precisely why the Amended Complaint
is replete with allegations concerning the content posted to Facebook by
HAMAS and HAMAS supporters. See, e.g., A37 ¶ 130 (“HAMAS has used
Facebook to disseminate propaganda and messages to its followers and
the public.”); A37–38 ¶¶ 127–34 (alleging that HAMAS has used
Facebook accounts to “shar[e] operational and tactical information with
its members and followers,” “recruit followers,” and post “graphic images,
videos, and music”); A32 ¶ 113 (“HAMAS uses Facebook’s Services to
actually carry out the essential communication components of HAMAS’s
terror attacks.”); A32 ¶ 112 (“HAMAS . . . uses Facebook to issue
terroristic threats, attract attention to its terror attacks, instill and
intensify fear from terror attacks, intimidate and coerce civilian
populations, take credit for terror attacks, [and] communicate its desired
messages . . . .”).

18

 The only reason, in other words, that Appellants object to
Facebook’s alleged provision of services to HAMAS is because of the
content posted by alleged terrorists. But for that content, there would be
no alleged harm to Appellants and no basis for the claims that Appellants
assert. As the District Court explained:
Facebook’s choices as to who may use its platform are
inherently bound up in its decisions as to what may be said
on its platform, and so liability imposed based on its failure to
remove users would equally “derive[] from [Facebook’s] status
or conduct as a ‘publisher or speaker.’” [FTC v.] LeadClick
Media[, LLC], 838 F.3d [158,] 175 [(2d Cir. 2016)] (internal
quotation marks and citations omitted).
A207.

Only underscoring the point is the fact that establishing the

proximate causation element of Appellants’ claims necessarily requires
that Appellants resort to third-party content.

“Facebook’s role in

publishing that content,” in other words, “is . . . an essential causal
element of the claims in the Force Complaint.” A208.
Thus, despite the fact that they now try to portray their claims as
being purely about the “provision of accounts” to HAMAS and HAMAS
supporters, Appellants advance the same basic argument that the CDA
prohibits: that Facebook is liable for failing to screen and remove
objectionable third-party content posted on those accounts. See, e.g.,

19

 Zeran, 129 F.3d at 330 (“[L]awsuits seeking to hold a service provider
liable for its exercise of a publisher’s traditional editorial functions—such
as deciding whether to publish, withdraw, postpone or alter content—are
barred.”); Jones, 755 F.3d at 411 (“[A]ny activity that can be boiled down
to deciding whether to exclude material that third parties seek to post
online is perforce immune under [S]ection 230.” (citation omitted));
Green, 318 F.3d at 471 (similar).
Second, even if Appellants’ theory did not seek to hold Facebook
directly liable for third-party content, that theory would still be
foreclosed by the CDA because Facebook’s decisions as to who may use
its platform are shielded from liability by the CDA. Indeed, imposing
liability on Facebook based on who it permits to open an account would
change not only the content that is posted to Facebook’s platform, but
also the nature of the platform itself. Such a decision regarding the
“structure and operation” of Facebook’s platform is thus “no less [a]
publisher choice[]” than a decision about whether to withdraw or alter
content directly. Backpage.com, 817 F.3d at 20–21. That is precisely why
the District Court in this case found that “Section 230(c)(1) prevents the
. . . editorial decision to allow certain parties to post on a given platform.”

20

 A207–08. And it is precisely why every other court to weigh in on this
issue has likewise rejected attempts to hold a service provider liable for
deciding who can and cannot use the platform. See Backpage.com, 817
F.3d at 19–21 (declaring that the CDA bars liability based on the
“structure and operation” of a website); Fields v. Twitter, Inc., 217 F.
Supp. 3d 1116, 1121 (N.D. Cal. 2016) (rejecting theory that Twitter
“provided material support to ISIS” in the form of “Twitter accounts and
direct-messaging services” because the theory sought to “treat [Twitter]
as the publisher of ISIS’s content”); Pennie, 281 F. Supp. 3d at 881
(similar); Gonzalez, 282 F. Supp. 3d at 1168 (similar).
3.

Facebook Did Not Develop the Terrorist Content
at Issue.

Appellants’ claims also fit comfortably within the third requirement
of the CDA: that the content at issue have been provided by a third-party
“information content provider.” 47 U.S.C. § 230(c)(1). An interactivecomputer-service provider qualifies as an “information content provider”
only if it is “responsible, in whole or in part, for the creation or
development” of the offending content. Id. § 230(f)(3). Here, Facebook
had nothing to do with “creat[ing]” or “develop[ing]” the content found on

21

 any HAMAS-related page and the Amended Complaint contains no
contrary allegation.
Nonetheless, on appeal, Appellants argue that Facebook qualifies
as an “information content provider” of the statements made by HAMAS
and its agents because Facebook purportedly uses algorithmic technology
(1) to broker connections between, and recommend content to, terrorists
and terrorist organizations, and (2) to “influence the intended recipient’s
response to” other information on the platform. Appellants’ Br. at 48–49.
According to Appellants, “when third-party content is analyzed by
Facebook to suggest new relationships, networking opportunities, stories
of interest, etc., Facebook ‘develops’ the third-party content.” Id. at 46.
Appellants’ arguments cannot withstand scrutiny.
First, Appellants’ are wrong that Facebook’s alleged use of
algorithms to recommend posts and accounts to Facebook users is the
same as “creat[ing] or develop[ing]” content. A website’s use of “neutral
tools” to suggest or re-post content does not deprive the site of § 230
immunity. Jones, 755 F.3d at 411 (emphasis omitted) (citation omitted).
That is because such tools, including the algorithms at issue here, do not
themselves create or alter content. Instead, they serve only to suggest,

22

 move, or re-post content created by others. In that sense, the tools
operate solely in conjunction with content that third parties choose to
publish on the platform. But for that content, Facebook’s algorithms
would have no function, nor would they cause Appellants any alleged
harm. Thus, Facebook’s use of such technology does not equate to a
“responsib[ility], in whole or in part, for the creation or development” of
content that appears on the platform. 47 U.S.C. § 230(f)(3).
For exactly those reasons, courts have consistently rejected the
argument that the use of neutral algorithms to suggest or repost content
constitutes the “development” of content within the meaning of the CDA.
Indeed, as one court put it, the “material contribution” necessary to
render a service provider a “develop[er]” of content “does not mean merely
taking action that is necessary to the display of allegedly illegal content.
Rather, it means being responsible for what makes the displayed content
allegedly unlawful.” Gonzalez, 282 F. Supp. 3d at 1168 (citation omitted);
see also, e.g., Fields, 217 F. Supp. 3d at 1121; Pennie, 281 F. Supp. 3d at
881. Facebook’s mere suggestion or re-posting of third-party content
through neutral algorithms is simply not “what makes the displayed
content allegedly unlawful.” See, e.g., Dowbenko, 582 F. App’x at 805

23

 (barring an attempt to hold Google liable for allegedly “manipulat[ing] its
search results to prominently feature” objectionable content); Universal
Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007) (“At
best, [plaintiff]’s allegations establish that Lycos’s conduct may have
made it marginally easier for others to develop and disseminate
misinformation.

That is not enough to overcome Section 230

immunity.”); Levitt v. Yelp! Inc., 2011 WL 5079526, at *6 (N.D. Cal. Oct.
26, 2011) (“Plaintiffs’ allegations of extortion based on Yelp’s alleged
manipulation of their review pages—by removing certain reviews and
publishing others or changing their order of appearance—falls within the
conduct immunized by § 230(c)(1).”), aff’d, 765 F.3d 1123 (9th Cir. 2014).
Second, use of algorithms to recommend third-party content to
users, which may or may not “influence the intended recipient’s
response,” Appellants’ Br. at 48, does not make Facebook an “information
content provider.” Again, merely suggesting or re-posting such content
has nothing to do with its “creation or development,” no matter what
impact the content may have on users. Lycos, 478 F.3d at 420 (“At best,
UCS’s allegations establish that Lycos’s conduct may have made it
marginally easier for others to develop and disseminate misinformation.

24

 That is not enough to overcome Section 230 immunity.”); Klayman, 753
F.3d at 1358 (“[A] website does not create or develop content when it
merely provides a neutral means by which third parties can post
information of their own independent choosing online.”); Goddard, 640 F.
Supp. 2d at 1196–97 (reasoning that a website is not an information
content provider “when it merely provides third parties with neutral tools
to create web content, even if the website knows that the third parties
are using such tools to create illegal content”).

Indeed, “absent

substantial affirmative conduct” on the part of the internet-service
provider “contribut[ing] to [the] alleged unlawfulness in the [user]’s
conduct,” Facebook’s provision of its services “is fully protected by CDA
immunity.”

Fair

Hous.

Council

of

San

Fernando

Valley

v.

Roommates.com, LLC, 521 F.3d 1157, 1174 n.37, 1169 (9th Cir. 2008).
No such allegations have been presented here. 4

4

This Court’s decision in LeadClick—where the Court found that the
information content provider LeadClick was “not entitled to immunity
because it participated in the development of the deceptive content
posted on [its affiliates’] fake news pages”—is a far cry from the
instant dispute. 838 F.3d at 176. Not only did LeadClick “recruit[]
affiliates . . . that used false news sites,” but it also “paid those
affiliates to advertise . . . online.” Id. Moreover, “LeadClick employees
occasionally advised affiliates to edit content on affiliate pages to avoid
being ‘crazy [misleading].’” Id. (brackets in original) (citation omitted).
25

 D.

The District Court Correctly Held That This Case Does
Not Involve An Extraterritorial Application Of The
CDA.

In an attempt to avoid the CDA altogether, Appellants claim that
the “presumption against extraterritoriality” precludes the application of
the CDA in this case.

See Appellants’ Br. at 28–35.

According to

Appellants, because “all acts occurred overseas and § 230 gives no clear
indication of extraterritorial application,” the District Court should not
have applied the CDA at all. Id. at 28–29.
As this Court has long instructed, determining whether a case
involves a prohibited extraterritorial application of a statute requires the
reviewing court to identify the enactment’s “focus,” which is, in turn,
defined as the “objects of the statute’s solicitude.” Parkcentral Glob. Hub
Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 211 (2d Cir. 2014)
(citation omitted); see also RJR Nabisco, Inc. v. Euro. Community, 136 S.
Ct. 2090, 2101 (2016). If the reviewing court finds that the relevant
“territorial events or relationships” that bear on this statutory focus or

The LeadClick court consequently had little trouble recognizing that
“LeadClick’s role in managing the affiliate network far exceeded that
of neutral assistance.” Id. The Amended Complaint contains no
similar allegations with respect to Facebook.
26

 solicitude are domestic, “then the application of the provision is not
unlawfully extraterritorial.”

Id. (citing, inter alia, Morrison v. Nat’l

Austl. Bank Ltd., 561 U.S. 247, 267 (2010)).
The fundamental problem with Appellants’ contention is this: the
“focus” of § 230 of the CDA is on limiting civil liability, not on the
“regulation of indecent and objectionable material on the Internet,” as
Appellants contend. Appellants’ Br. at 31–32. That much is clear from
the text of § 230 itself, which is plainly focused on shielding service
providers from certain forms of civil liability—“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) (emphasis added). Confirming the point,
other provisions of § 230 preempt contrary laws, see 47 U.S.C. § 230(e)(3),
and shield other activities taken by service providers from civil liability,
see id. § 230(c)(2).
The policy considerations underlying the statute also make clear
that Congress sought to limit liability for internet service providers. See
id. § 230(b)(2) (“It is the policy of the United States . . . to preserve the
vibrant and competitive free market that presently exists for the Internet

27

 and other interactive computer services . . . .”). Indeed, in the legislative
debates surrounding the CDA, Congress recognized the threat that tortbased lawsuits posed to the freedom of electronic speech, and sought to
retain a robust medium for Internet communication. See H.R. Rep. No.
104-458, at 194 (1996). As the Fourth Circuit aptly put it:
Congress’ purpose in providing the § 230 immunity was thus
evident. Interactive computer services have millions of users.
The amount of information communicated via interactive
computer services is therefore staggering. The specter of tort
liability in an area of such prolific speech would have an
obvious chilling effect. It would be impossible for service
providers to screen each of their millions of postings for
possible problems. Faced with potential liability for each
message republished by their services, interactive computer
service providers might choose to severely restrict the number
and type of messages posted. Congress considered the weight
of the speech interests implicated and chose to immunize
service providers to avoid any such restrictive effect.
Zeran, 129 F.3d at 331.
In light of this clear statutory focus on limiting liability, the District
Court correctly held that “the relevant [territorial event or relationship]
is that where the grant of immunity is applied, i.e. the situs of the
litigation.”

A212.

Indeed, “[g]iven the statutory focus on limiting

liability,” the court reasoned, “the location of the relevant ‘territorial
events’ or ‘relationships’ cannot be the place in which the claims arise but

28

 instead must be where redress is sought and immunity is needed.” A213.
Here, of course, the situs of the litigation is a New York court and
therefore the relevant “territorial events or relationships” must occur
domestically.
For those reasons, the “presumption against extraterritoriality” has
no relevance to this case, which involves a purely domestic application of
a U.S. law to a U.S. company in a U.S. court. See Blazevska v. Raytheon
Aircraft Co., 522 F.3d 948, 954 (9th Cir. 2008) (“Appellants have failed to
show that GARA regulates any non-domestic conduct, because GARA
only determines the scope of a manufacturer’s liability in American
courts.”); see also, e.g., Kiobel v. Royal Dutch Petrol. Co., 569 U.S. 108,
116 (2013). It should thus come as no surprise that both the Ninth and
D.C. Circuits have applied the CDA to claims involving content posted
abroad. Klayman, 753 F.3d at 1356–57; Carafano, 339 F.3d at 1120–21;
see also, e.g., Gonzalez, 282 F. Supp. 3d at 1161–63.
Appellants’ criticism of this well-supported analysis misses the
mark. They principally complain that the District Court erred because
“the focus of the CDA . . . is regulation of indecent and objectionable
material on the Internet,” not on the “limitation on liability,” as the

29

 District Court found. Appellants’ Br. at 31–32; A211. But that strained
reading of the CDA ignores the fact that while other portions of the CDA
may address and regulate the publication of indecent and objectionable
material on the Internet, Congress focused on a different issue in
enacting § 230, namely, the chilling effect that tort suits could have on
Internet-based free speech. Thus, whatever purpose other provisions of
the CDA might serve, courts across the country have agreed that the
purpose of § 230 is not difficult to discern: “Congress made a policy choice
. . . not to deter harmful online speech through the separate route of
imposing tort liability on companies that serve as intermediaries for
other parties’ potentially injurious messages.” Zeran, 129 F.3d at 330–
31; see also A211 (“Th[e] emphasis on immunity over other considerations
is clear from the text, and courts interpreting that provision have
consistently found [its] plain language focuses on protecting qualified
defendants from civil suits.”); Jones, 755 F.3d at 407 (“At its core, § 230
bars ‘lawsuits seeking to hold a service provider liable for its exercise of
a publisher’s traditional editorial functions’” (citation omitted)); Parisi v.
Sinclair, 774 F. Supp. 2d 310, 316 (D.D.C. 2011) (Section 230 “sought to
encourage the ‘“vibrant and competitive free market” of ideas on the

30

 Internet[]’ by establishing immunity for internet publication of thirdparty content.” (citations omitted)). Tellingly, Appellants do not offer a
single decision setting forth a contrary view of the CDA or refusing to
apply § 230 to conduct abroad. Section 230 thus requires dismissal of
this lawsuit.
E.

The District Court Did Not Err In Concluding That The
CDA Applies To Civil ATA Claims.

The District Court likewise committed no legal error in finding that
the CDA applies to Appellants’ civil ATA claims. Appellants advance
three arguments in the hopes of undermining that reasoned conclusion:
Appellants argue that (1) the CDA expressly disclaims any impact on the
enforcement of criminal statutes like the ATA, see Appellants’ Br. at 52–
53; (2) application of the CDA and the case law interpreting it must yield
to a later-enacted ATA to the extent a conflict exists, id. at 53–56; and (3)
the ATA and its amendments impliedly repealed § 230 of the CDA, id. at
56. Appellants are mistaken on all fronts.
First, Appellants cannot avoid § 230 immunity by trying to
shoehorn their civil ATA claims into the CDA’s exception for the
“enforcement” of “any . . . Federal criminal statute,” 47 U.S.C. § 230(e)(1).
Entitled “No effect on criminal law,” that exception states:
31

 Nothing in [§ 230] shall be construed to impair the
enforcement of section 223 or 231 of this title, chapter 71
(relating to obscenity) or 110 (relating to sexual exploitation
of children) of Title 18, or any other Federal criminal statute.
Id. On its face, this provision is limited to the enforcement of federal
criminal law. Similarly, the statute’s use of the word “enforcement”
indicates that the exception applies only to criminal prosecutions.
Indeed, elsewhere in § 230 Congress consistently used the term
“enforcement” to refer to Government action in criminal matters, and not
to the claims of private litigants in civil litigation. See, e.g., 47 U.S.C.
§ 230(b)(5) (“It is the policy of the United States . . . to ensure vigorous
enforcement of Federal criminal laws to deter and punish trafficking in
obscenity, stalking, and harassment by means of computer.” (emphasis
added)); id. § 230(e)(3) (providing that the substantive immunities of
§ 230 do not “prevent any State from enforcing any State law that is
consistent with” § 230 (emphasis added)). For these reasons, the First
Circuit recently concluded that “[t]he plain-language reading of [S]ection
230(e)(1) . . . excludes civil suits,” and any argument to the contrary is
nothing more than an “attempted end run[]” around Section 230
immunity. Backpage.com, 817 F.3d at 23–24.

32

 Appellants, for their part, provide no real response. They cite two
pieces of legislative history that they claim support the application of a
criminal-law exception in this case. See Appellants’ Br. at 53 (citing
Statement of Alan J. Kreczko, S. 2465, Before the Subcommittee on
Courts

and

Administrative

Practice

(July

25,

1990),

https://www.state.gov/documents/organization/28458.pdf; S. Rep. No.
102-342, at 22 (1992)). But that legislative history does nothing of the
sort.

At no point, for example, in his statement before the Senate

Judiciary Committee did Alan Kreczko even remotely suggest that the
criminal-law exception to the CDA should be applied to claims brought
under a civil-remedies provision.

The Senate Report relied on by

Appellants similarly lacks any such discussion.
In addition, refusing to apply § 230 to claims for civil liability
predicated on a federal criminal statute like the ATA would run counter
to other cases addressing this issue, all of which held that the exception
in § 230(e)(1) does not apply to civil actions based on statutes with
criminal aspects. See, e.g., Fields, 200 F. Supp. 3d at 974 (dismissing civil
ATA claim on CDA grounds); Backpage.com, 817 F.3d at 23 (rejecting
argument that civil suit under the Trafficking Victims Protection

33

 Reauthorization Act fell within the criminal law exception); Obado, 2014
WL 3778261, at *8 (“[T]he CDA exception for federal criminal statutes
applies to government prosecutions, not to civil private rights of action
under stat[utes] with criminal aspects.”).
Second, Appellants’ contention that the CDA and the decisions
interpreting it should not apply because they conflict with the laterenacted ATA and the amendments thereto is also meritless. Simply put,
there is no conflict between the two statutes: The ATA provides causes
of action relating to support of terrorist actions, whereas the CDA
provides a limited defense to such causes of actions for claims stemming
from a service-provider’s decisions to allow, edit, or remove online content
created by third-party users. The two laws can be read in harmony. As
the District Court put it:
In enacting Section 230, . . . Congress “was focusing on the
particularized problems of [providers and users of interactive
computer services] that might be sued in the state or federal
courts,” Radzanower [v. Touche Ross & Co.], 426 U.S. [148,]
153 [(1976)], limiting the liability of a narrow subset of
defendants for a particular type of claim. Thus, . . . the two
acts can be read without any conflict: Section 230 provides a
limited defense to a specific subset of defendants against the
liability imposed by the ATA.

34

 A417–18 (first set of brackets in original); accord Gonzalez, 282 F. Supp.
3d at 1168; Fields, 217 F. Supp. 3d at 1124.
Contrary to Appellants’ claim, Congress’s recent enactment of
JASTA confirms the point. See 18 U.S.C. § 2333. That law broadened
the ATA to include secondary liability. Significantly, however, JASTA
and its legislative history make no mention of the CDA or the two decades
of precedent interpreting it. Nor does JASTA or its legislative history
address the responsibilities of, or protections afforded to, interactivecomputer-service providers. Thus, even though Congress was fully aware
of the extensive body of CDA precedent that existed at the time, it made
no provision in JASTA to overrule that precedent as it related to claims
under the ATA, strongly suggesting that Congress fully intended for CDA
defenses to remain available in ATA actions.

Congress’s silence

regarding Section 230 speaks even more loudly here because JASTA
expressly limited a different statutory immunity—the immunity
provided to foreign states under the FSIA. See 18 U.S.C. § 2333(d). As
the district court noted in Gonzalez, JASTA’s express repeal of foreign
sovereign immunity for certain acts of international terrorism

35

 “demonstrates that where Congress intended JASTA to repeal existing
statutory immunities, it made that clear.” 282 F. Supp. 3d at 1160. 5
Third, there is no legal basis for Appellants’ assertion that the ATA
and its amendments implicitly repealed § 230 of the CDA. As the District
Court recognized, courts in this Circuit have long held that “[r]epeals by
implication are not favored.” A417 (quoting In re Stock Exchs. Options
Trading Antitrust Litig., 317 F.3d 134, 144 (2d Cir. 2003)). “Accordingly,
courts must not ‘infer a statutory repeal unless . . . such construction is
absolutely necessary in order that the words of the later statute shall
have any meaning at all.’” Id. (quoting Nat’l Ass’n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 662 (2007)); see also Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1624 (2018) (“When confronted with two acts of
Congress allegedly touching on the same topic,” a court “is not at liberty
to pick and choose among congressional enactments and must instead
strive to give effect to both.” (citation omitted)).

5

For the reasons

It is therefore unsurprising that at least two federal courts applied the
CDA to bar civil-ATA claims, both rejecting arguments that JASTA
somehow impliedly repealed Section 230. See, e.g., Fields, 200 F.
Supp. 3d at 966; Gonzalez, 282 F. Supp. 3d at 1159–60. This Court
should do the same here.
36

 explained above, applying § 230 to ATA actions does not deprive the ATA
of “any meaning at all.” As noted, “the two acts can be read without any
conflict,” A418, since the CDA is intended to apply to a limited subset of
defendants like Facebook for only those claims that seek to impose
liability for third-party content. The ATA, on the other hand, applies in
a much broader set of circumstances with no regard for the particular
defendant being sued. The ATA, therefore, did not repeal § 230 of the
CDA.

To conclude otherwise “would treat any statute that imposes

liability and which was enacted after the CDA as implicitly limiting the
reach of Section 230” and “would effectively reverse the presumption
against inferring repeal.” A418.
F.

This Court Should Not Except From CDA Coverage
Foreign-Law Tort Claims.

Appellants’ assertion that New York choice-of-law principles
preclude the application of the CDA to Appellants’ Israeli-law tort claims
is equally flawed. See Appellants’ Br. at 57–62. Appellants contend that
the District Court should not have applied § 230 to claims governed by
Israeli law, since the CDA is a U.S. statute that has no corollary in Israel.
Id. at 62.

37

 That argument is wrong. The CDA on its face applies to foreignlaw claims. The text governs any cause of action that would “treat” an
interactive-computer-service provider as “the publisher or speaker” of
third-party content. 47 U.S.C. § 230(c). It makes no distinction between
domestic- and foreign-law claims, nor does the its legislative history
suggest any such distinction. The statute also features several express
exceptions to its broad provision of immunity, including an exception for
criminal laws, id. § 230(e)(1), for intellectual property, id. § 230(e)(2), for
communications privacy laws, id. § 230(e)(4), and for child sex trafficking
law, FOSTA § 3(a). Yet at no point did Congress exclude from CDA
coverage claims arising under the law of foreign nations. Under wellestablished rules of statutory interpretation, “[w]here Congress explicitly
enumerates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence of a contrary
legislative intent.”

Hillman v. Maretta, 569 U.S. 483, 496 (2013)

(brackets in original) (citation omitted). Common sense only underscores
the point: If Appellants’ arguments were accepted, U.S. courts would be
prohibited from adjudicating federal and state claims but required to
adjudicate foreign-law claims arising out of the same conduct. Facebook

38

 knows of no other circumstance where American courts face such
constraints.
G.

This Court Should Reject Appellants’ Attempt To Inject
New Facts Into The Record On Appeal.

Finally, this Court should decline Appellants’ invitation to consider
facts never introduced in the Amended Complaint. In reviewing the
dismissal of a complaint, appellate courts will consider only the facts
alleged in “the complaint . . . , as well as . . . documents incorporated into
the complaint by reference, and matters of which a court may take
judicial notice.” Parkcentral Glob. Hub Ltd. v. Porsche Auto. Holdings
SE, 763 F.3d 198, 202 (2d Cir. 2014) (per curiam) (citation omitted).
Appellants’ brief ignores this foundational rule of appellate practice,
referencing a host of new facts that were not considered (and, indeed,
could not be considered) by the District Court in granting Facebook’s
motion to dismiss. See Appellants’ Br. at 8–11 (referencing a Center for
Extremism Project (“CEP”) report created in May 2018, 19 months after
Appellants filed the Amended Complaint); id. at 12–13 (quoting portions
of an internal Facebook memorandum written in the Spring of 2018); id.
at 13 (citing March 2018 news coverage of the internal memorandum).

39

 Because these facts were outside the record considered by the court
below, they cannot be considered by this Court on appeal.6
II.

APPELLANTS’ ATA CLAIMS FAIL AS A MATTER OF LAW
Because Appellants’ claims are barred by § 230 of the CDA, this

Court need not consider the merits of those claims. See supra Part I. But
even if the CDA did not apply, this Court can nevertheless affirm the
District Court’s dismissal on alternative grounds because the Amended
Complaint does not contain plausible allegations showing that Facebook
violated the ATA.7

6

Of course, even assuming Appellants’ new facts could be properly
considered by this Court, those facts do nothing to change the
fundamental point that Facebook is entitled to CDA immunity in this
case. Indeed, the CEP report and internal memorandum simply have
no bearing on whether Facebook created or developed the content
found on any HAMAS-related account. Nor does the report or
memorandum alter the fact that Appellants’ claims seek to treat
Facebook as the publisher of third-party content.

7

For the same reasons that Appellants’ ATA claims fail as a matter of
law, the Amended Complaint also fails to plead plausibly Appellants’
Israeli-law claims for negligence, breach of statutory duty, and
vicarious liability. As the arguments below make clear, Facebook
neither breached any legal duty owed to Appellants nor assisted
HAMAS in a manner sufficient to give rise to tort liability under
Israeli law.
40

 A.

Appellants Have Not Plausibly Alleged That Their
Injuries Occurred “By Reason Of” Facebook’s
Activities.

All four of Appellants’ ATA claims fail because they have not
plausibly alleged that their injuries occurred “by reason of” Facebook’s
activities. The civil-remedies provision of the ATA, pursuant to which
Appellants brought Counts I through IV of the Amended Complaint,
creates a private cause of action for “[a]ny national of the United States
injured in his or her person, property, or business by reason of an act of
international terrorism.”

18 U.S.C. § 2333(a) (emphasis added).

As

Appellants acknowledge, this Court has interpreted § 2333’s “‘by reason
of’ language” to mean that the ATA “restricts the imposition of . . .
liability [under the statute] to situations where plaintiffs plausibly allege
that defendant[’]s actions proximately caused their injuries.”

In re

Terrorist Attacks on Sept. 11, 2001, 714 F.3d 118, 123–25 (2d Cir. 2013)
(citing Rothstein v. UBS AG, 708 F.3d 82, 94–97 (2d Cir. 2013));
Appellants’ Br. at 40. To prove proximate causation, Appellants must
plausibly allege that Facebook’s activities were “a substantial factor in
the sequence of responsible causation,” and that Appellants’ injuries
were “reasonably foreseeable or anticipated as a natural consequence” of

41

 Facebook’s alleged violation. Strauss v. Credit Lyonnais, S.A., 925 F.
Supp. 2d 414, 432 (E.D.N.Y. 2013) (citations omitted); see also Rothstein,
708 F.3d at 91–92 (instructing that defendant’s alleged violation must
“le[a]d directly to the plaintiff’s injuries” to show proximate causation
(citation omitted)).
Applying these well-settled principles here, Appellants have failed
to allege adequately proximate causation under the ATA. The Amended
Complaint does not contain a single allegation that ties terrorism-related
content allegedly posted by HAMAS to the particular attacks at issue.
Nor is there any allegation indicating that any of Facebook’s actions “led
directly” to the terrorist attacks that are the subject of Appellants’ claims.
Rothstein, 708 F.3d at 91–92 (citation omitted). The Amended Complaint
likewise does not set forth facts suggesting that Facebook “was a
participant in the terrorist attacks that injured plaintiffs” and their loved
ones, or that Facebook funded those attacks. Id. at 97. At most, all
Appellants can muster on this score is that HAMAS “us[ed] Facebook
before, during, and after each attack.” Appellants’ Br. at 41. But such
allegations do not come close to satisfying Appellants’ burden to plead
plausible allegations that Facebook was “a substantial factor” in causing

42

 Appellants’ injuries. See, e.g., In re Terrorist Attacks, 714 F.3d at 124
(rejecting the suggestion that “providing routine banking services to
organizations and individuals said to be affiliated with al Qaeda—as
alleged by plaintiffs—proximately caused the September 11, 2001
attacks”).
The Ninth Circuit’s decision in Fields underscores this point. 881
F.3d at 745–46. In Fields, the appellants claimed that Twitter should be
liable for an ISIS attack because Twitter “knowingly provided” Twitter
accounts to ISIS as a tool for “communicat[ing] with potential recruits
and ‘for fundraising and operational purposes.’” Id. at 742–43. The
Ninth Circuit rejected that claim, opining that “[a]ppellants have not
pleaded that Twitter’s provision of communication equipment to ISIS, in
the form of Twitter accounts and direct messaging services, had any
direct relationship with the injuries that [appellants] suffered.” Id. at
749. The court affirmed the dismissal of the action because “[a]t most,
the [complaint] establishes that Twitter’s alleged provision of material
support to ISIS facilitated the organization’s growth and ability to plan
and execute terrorist acts. But the [complaint] does not articulate any
connection between Twitter’s provision of [its services] and [appellants]’

43

 injuries.” Id. at 749–50. Here, too, Appellants have altogether failed to
connect Facebook to the causal chain of the specific HAMAS terror
attacks at issue or to the operatives that executed those attacks. For that
reason, the District Court correctly dismissed all four of Appellants’ ATA
claims.
B.

The Amended Complaint Does Not Plausibly Allege
Direct Liability For An “Act Of International
Terrorism.”

Appellants’ Counts III and IV for direct liability independently fail
because there are no allegations in the Amended Complaint sufficient to
state a claim that Facebook violated either material support statute.
Section 2339A, upon which Count III rests, requires a showing that the
defendant provided material support “knowing . . . that [it is] to be used
in preparation for, or in carrying out [an act of terrorism].” 18 U.S.C.
§ 2339A(a) (emphasis added). Section 2239B, upon which Count IV rests,
similarly requires that a defendant “knowingly provide[d] material
support” to a designated foreign terrorist organization.

Id. § 2339B.

Appellants have not plausibly pled the requisite knowledge under either
provision.

44

 The thrust of Appellants’ knowledge allegations is that Facebook
was aware that its services would be used in carrying out terrorism
because Facebook purportedly failed to scrub its platform of terrorismrelated content. See Appellants’ Br. at 38–39; A34–37 ¶¶ 121–29. But
conspicuously absent from the Amended Complaint is a single allegation
that Facebook knew of and failed to take action against an account used
by HAMAS itself. Nor do Appellants provide factual support for the
proposition that Facebook knew that it was providing its services to the
members of HAMAS who perpetrated the specific attacks at issue. To
the contrary, and as Appellants’ own allegations make clear, Facebook
routinely removes terrorist content, and Facebook has publicly stated
that it “do[es]n’t allow terrorist groups,” including HAMAS, “to be on
Facebook.” A121–23 ¶¶ 548–54. Indeed, Appellants themselves quote
the

following

statement

made

by

an

undisclosed

Facebook

representative: “We want people to feel safe when using Facebook. There
is no place for content encouraging violence, direct threats, terrorism or
hate speech on Facebook.” A114 ¶ 506. These allegations cannot possibly
support an inference that Facebook knowingly provided material support

45

 to HAMAS and its operatives in the execution of the terrorist attacks
described in the Amended Complaint.8
C.

Appellants’ Secondary Liability Theory Under The
ATA Fails As A Matter Of Law.

Appellants’ claims for secondary liability under the ATA are
similarly flawed. That statute provides for such liability “[i]n an action .
. . 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 . . . 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.” 18 U.S.C.
§ 2333(d)(2). For at least three independent reasons, Appellants cannot
satisfy these stringent requirements.

8

Appellants also set forth in their proposed Second Amended
Complaint a cause of action under 18 U.S.C. § 2339C(c) for Facebook’s
alleged “concealment” of its provision of material resources to
HAMAS. See A225. But for the reasons already explained, that claim
also fails as a matter of law. Indeed, as Facebook explained in its
supplemental opposition to Appellants’ motion for leave to amend the
complaint, Appellants cannot adequately allege (1) a predicate
violation of § 2339B, and (2) the requisite knowledge or intent. See
Dist. Ct. ECF No. 60 at 1.
46

 First, Appellants cannot establish that Facebook provided
“substantial assistance” to HAMAS in connection with any of the attacks
at issue.

Under JASTA, substantial assistance is determined by

assessing six factors: “the nature of the act encouraged; the amount [and
kind] of assistance given; the defendant’s absence or presence at the time
of the tort; his relation to the tortious actor;” “the defendant’s state of
mind”; and the “duration of the assistance provided.” Halberstam v.
Welch, 705 F.2d 472, 483–84 (D.C. Cir. 1983) (brackets in original)
(emphasis omitted); see also JASTA, Pub. L. No. 114-222, § 2(a)(5), 130
Stat. at 852 (stating that Congress intended secondary liability under the
ATA to be interpreted in accordance with Halberstam, 705 F.2d 472). In
this case, none of these factors indicate that Facebook provided HAMAS
with “substantial assistance” to any specific underlying terrorist attack
merely by making its services freely available to the public at large.
Most importantly, the Amended Complaint does not contain a
single allegation that the five attacks at issue were planned, financed, or
executed through Facebook.

Nor do Appellants allege (because they

cannot allege) that Facebook had any relationship whatsoever with the
perpetrators of the first terrorist attack mentioned in the Amended

47

 Complaint, see A45–46 ¶¶ 177–82. And the company’s only relationship
with the remaining perpetrators was merely as a social network provider
to its registered users, see id. ¶¶ 156–218, not anything related to the
attacks themselves. That kind of affiliation, which Facebook shares with
billions of people, is not the connection necessary to establish
“substantial assistance” under the ATA. Halberstam, 705 F.2d at 482.
Second, Appellants have failed to include plausible allegations
that Facebook acted with the requisite state of mind. See 18 U.S.C.
§ 2333(d)(2) (providing for secondary liability as to “any person who aids
and abets, by knowingly providing substantial assistance.” (emphasis
added)). There is no allegation in the Amended Complaint that Facebook
had advance knowledge of the perpetrators or the specific terrorist
attacks at issue here—a failure that, standing alone, is fatal to their
aiding and abetting claim. Appellants do not even allege that Facebook
ever knew of an account that HAMAS controlled in its own name. Nor
do Appellants provide factual support for the proposition that Facebook
knew that it was providing its services to the various members of HAMAS
who perpetrated the specific attacks alleged.

48

 The Amended Complaint instead proves the opposite—that the only
relevant intent Facebook had was to prohibit and remove terrorist
content when such content came to its attention.
Facebook’s

Community

Standards,

which

For example,

Appellants’

repeatedly

reference, explain that Facebook “do[es] not allow any organizations or
individuals that are engaged in,” among other things, “[t]errorist
activity” or “[m]ass or serial murder” to “have a presence on Facebook.”
Facebook,

Community

Standards,

https://www.facebook.com/

communitystandards/ (last accessed Oct. 2, 2018). Facebook’s Terms of
Service make the same point, noting that users may not use Facebook “at
the expense of the safety and well-being of others or the integrity of [the
Facebook]

community.”

Facebook,

Terms

of

Service,

https://www.facebook.com/terms.php (last accessed Oct. 2, 2018).
Elsewhere in the Terms of Service, Facebook states that the company will
“remove content” and “take action against [an] account” that is
“unlawful.” Id. Similarly, Facebook provides that “[i]f [it] determine[s]
that [a user] ha[s] violated [the Company’s] terms or policies, [Facebook]
may take action against [the user’s] account to protect [the] community
and services, including by suspending access to [the user’s] account or

49

 disabling it.”

Id.

The Amended Complaint contains no allegations

explaining how Facebook was “knowingly” supporting terrorists when it
clearly and expressly disclaimed doing so.
Third, Appellants have not plausibly alleged that Facebook
conspired with HAMAS and its operatives. Appellants concede that a
claim for civil conspiracy under the ATA requires “an agreement to do an
unlawful act or a lawful act in an unlawful manner; an overt act in
furtherance of the agreement by someone participating in it; and injury
caused by the act.” Appellants’ Br. at 42–43 (quoting Halberstam, 705
F.2d at 487). In addition, where, as here, there is no direct evidence of
an agreement to conspire, courts typically “look to see if the alleged joint
tortfeasors are pursuing the same goal—although performing different
functions—and are in contact with one another.” Halberstam, 705 F.2d
at 481. Appellants have proffered no such facts in this case, and instead
rely on threadbare and conclusory allegations that “Facebook permitt[ed]
or re-establish[ed] Hamas accounts after briefly shutting them down.”
Appellants’ Br. at 43. Appellants do not (again, because they cannot)
allege that Facebook entered into any agreement with HAMAS or is

50

 pursuing the same goal as HAMAS—i.e., to commit terrorism.
Accordingly, Count II of the Amended Complaint fails as a matter of law.

51

 CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of
the District Court.

October 3, 2018

Respectfully submitted,
/s/ Craig S. Primis
Craig S. Primis, P.C.
K. Winn Allen
Matthew S. Brooker
Kirkland & Ellis LLP
655 Fifteenth Street N.W.
Washington, DC 20009
craig.primis@kirkland.com
winn.allen@kirkland.com
matthew.brooker@kirkland.com
(202) 879-5000
Counsel for Defendant-Appellee

52

 CERTIFICATE OF TYPE-VOLUME COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of
Appellate Procedure 32(a)(7)(B) and Local Rule 32.1(a)(4)(A) because,
excluding the parts of the document exempted by Rule 32(f), this
document contains 10,599 words.
This document complies with the typeface requirements of Federal
Rule of Appellate Procedure 32(a)(5) and the type-style requirements of
Rule 32(a)(6) because this document has been prepared in a
proportionally spaced typeface using Microsoft Word 2016 program in 14point font.
/s/ Craig S. Primis
Craig S. Primis, P.C.
K. Winn Allen
Matthew S. Brooker
KIRKLAND & ELLIS LLP
655 Fifteenth Street N.W.
Washington, DC 20005
(202) 879-5000
craig.primis@kirkland.com
winn.allen@kirkland.com
matthew.brooker@kirkland.com
Counsel for Defendant-Appellee