United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
27
WILLIAM H. ORRICK United States District Judge.
INTRODUCTION
In
November 2015, Lloyd “Carl” Fields, Jr. and James
Damon Creach were shot and killed while working as United
States government contractors at a law enforcement training
center in Amman, Jordan. The shooter was a Jordanian police
officer who had been studying at the center. In subsequent
statements, the Islamic State of Iraq and Syria
(“ISIS”) claimed responsibility for the attack,
describing the gunman as a “lone wolf.”
Plaintiffs, the wife of Fields and the wife and children of
Creach, seek to hold defendant Twitter, Inc.
(“Twitter”) liable under 18 U.S.C. §
2333(a), part of the Anti-Terrorism Act (“ATA”),
on the theory that Twitter provided material support to ISIS
by allowing ISIS to sign up for and use Twitter accounts, and
that this material support was a proximate cause of the
November 2015 shooting.
Twitter
moves to dismiss on several grounds, including that
plaintiffs’ claims are barred by the Communications
Decency Act (“CDA”), 47 U.S.C. § 230(c). As
horrific as these deaths were, under the CDA Twitter cannot
be treated as a publisher or speaker of ISIS’s hateful
rhetoric and is not liable under the facts alleged.
Twitter’s motion to dismiss is GRANTED with leave to
amend.
BACKGROUND
In
2015, Fields and Creach travelled to Jordan through their
work as government contractors. First Amended Complaint
¶¶ 71-72 (“FAC”) (Dkt. No. 21). Both
had served as law enforcement officers in the United States,
and both were assigned to the International Police Training
Center (“IPTC”), a facility in Amman run by the
United States Department of State. Id. ¶ 73.
One of
the men studying at the IPTC was Anwar Abu Zaid, a Jordanian
police captain. Id. ¶ 76. On November 9, 2015,
Abu Zaid smuggled an assault rifle and two handguns into the
IPTC and shot and killed Fields, Creach, and three other
individuals. Id. ¶ 78. ISIS subsequently
“claimed responsibility” for the attack,
describing Abu Zaid as a “lone wolf” and stating,
Do not provoke the Muslims more than this, especially
recruited and supporters of the Islamic State. The more your
aggression against the Muslims, the more our determination
and revenge . . . [T]ime will turn thousands of supporters of
the caliphate on Twitter and others to wolves.
Id. ¶ 80.
Plaintiffs
do not allege that ISIS recruited or communicated with Abu
Zaid over Twitter, that ISIS or Abu Zaid used Twitter to
plan, carry out, or raise funds for the attack, or that Abu
Zaid ever viewed ISIS-related content on Twitter or even had
a Twitter account. The only arguable connection between Abu
Zaid and Twitter alleged in the FAC is that Abu Zaid’s
brother told reporters that Abu Zaid had been very moved by
ISIS’s execution of Jordanian pilot Maaz al-Kassasbeh
in February 2015. Id. ¶ 84. After capturing
al-Kassasbeh, ISIS launched a Twitter campaign “to
crowd source ideas for his method of execution.”
Id. ISIS subsequently used a Twitter account to
distribute a 22-minute video of al-Kassasbeh’s horrific
killing. Id. Plaintiffs do not allege that Abu Zaid
ever viewed the video, either on Twitter or by any other
means.
Plaintiffs
accuse Twitter of violating 18 U.S.C. § 2333(a), part of
the ATA, by knowingly providing material support to ISIS, in
violation of 18 U.S.C. § 2339A and 18 U.S.C. §
2339B. FAC ¶¶ 87-90 (Count 1, section 2339A), 91-94
(count 2, section 2339B). Section 2333(a) provides:
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). Sections 2339A and 2339B prohibit
the knowing provision of “material support or
resources” for terrorist activities or foreign
terrorist organizations. 18 U.S.C. §§ 2339A(a),
2339B(a)(1). The term “material support or
resources” is defined to include “any property,
tangible or intangible, or service, ” including
“communications equipment.” 18 U.S.C.
§§ 2339A(b)(1), 2339B(g)(4).
Plaintiffs
assert that Twitter’s “provision of material
support to ISIS was a proximate cause of [their]
injur[ies].” FAC ¶¶ 89, 93. They allege that
Twitter “has knowingly permitted . . . ISIS to use its
social network as a tool for spreading extremist propaganda,
raising funds and attracting new recruits, ” and that
“[t]his material support has been instrumental to the
rise of ISIS and has enabled it to carry out numerous
terrorist attacks, including the November 9, 2015 shooting
attack in Amman, Jordan in which [Fields and Creach] were
killed.” Id. ¶ 1.
Specifically,
plaintiffs contend that ISIS uses Twitter to disseminate its
official media publications and other content, thereby
“spread[ing] propaganda and incit[ing] fear [through]
graphic photos and videos of its terrorist feats.”
Id. ¶¶ 35-36. ISIS also uses Twitter
“to raise funds for its terrorist activities, ”
id. ¶ 30, and to “post instructional
guidelines and promotional videos, ” id.
¶ 23.
In
addition, ISIS uses Twitter as a recruitment platform,
“reach[ing] potential recruits by maintaining accounts
on Twitter so that individuals across the globe can reach out
to [ISIS] directly.” Id. ¶ 20.
“After first contact, potential recruits and ISIS
recruiters often communicate via Twitter’s Direct
Messaging capabilities.”[1] Id. Plaintiffs allege
that “[t]hrough its use of Twitter, ISIS has recruited
more than 30, 000 foreign recruits over the last year.”
Id. ¶ 29.
Plaintiffs
cite a number of media reports from between 2011 and 2014
concerning ISIS’s use of Twitter and Twitter’s
“refusal to take any meaningful action to stop
it.” Id. ¶¶ 48-56. They also
describe several attempts by members of the public and United
States government to persuade Twitter to crack down on
ISIS’s use of its services. Id. ¶¶
57-62. They allege that, while Twitter has now instituted a
rule prohibiting threats of violence and the promotion of
terrorism, “many ISIS-themed accounts are still easily
found on Twitter.” Id. ¶ 70.
LEGAL
STANDARD
Federal
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), in order to “give the defendant
fair notice of what the claim is and the grounds upon which
it rests, ” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotation marks and
alterations omitted).
A
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) tests the legal sufficiency
of a complaint. Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). “Dismissal under Rule 12(b)(6) is
appropriate only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal
theory.” Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a
complaint “need not contain detailed factual
allegations” to survive a Rule 12(b)(6) motion,
“it must plead enough facts to state a claim to relief
that is plausible on its face.” Cousins v.
Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009)
(internal quotation marks and citations omitted). A claim is
facially ...