Fields v. Twitter, Inc.

          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 ...