Force v. Facebook, Inc. , 934 F.3d 53 ( 2019 )

18‐397
Force v. Facebook, Inc.
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4
5
6 August Term, 2018
7 No. 18‐397
8
9 STUART FORCE, individually and as Administrator on behalf of the
10 Estate of TAYLOR FORCE, ROBBI FORCE, KRISTIN ANN FORCE,
11 ABRAHAM RON FRAENKEL, individually and as Administrator on
12 behalf of the Estate of YAAKOV NAFTALI FRAENKEL, and as the
13 natural and legal guardian of minor plaintiffs A.H.H.F., A.L.F.,
14 N.E.F, N.S.F., and S.R.F., A.H.H.F., A.L.F., N.E.F., N.S.F., S.R.F.,
15 RACHEL DEVORA SPRECHER FRAENKEL, individually and as
16 Administrator on behalf of the Estate of YAAKOV NAFTALI FRAENKEL
17 and as the natural and legal guardian of minor plaintiffs A.H.H.F.,
18 A.L.F., N.E.F, N.S.F., and S.R.F., TZVI AMITAY FRAENKEL, SHMUEL
19 ELIMELECH BRAUN, individually and as Administrator on behalf of
20 the Estate of CHAYA ZISSEL BRAUN, CHANA BRAUN, individually and
21 as Administrator on behalf of the Estate of CHAYA ZISSEL BRAUN,
22 SHIMSHON SAM HALPERIN, SARA HALPERIN, MURRAY BRAUN, ESTHER
23 BRAUN, MICAH LAKIN AVNI, individually and as Joint Administrator
24 on behalf of the Estate of RICHARD LAKIN, MAYA LAKIN, individually
25 and as Joint Administrator on behalf of the Estate of RICHARD LAKIN,
26 MENACHEM MENDEL RIVKIN, individually and as the natural and
27 legal guardian of minor plaintiffs S.S.R., M.M.R., R.M.R., S.Z.R.,
28 BRACHA RIVKIN, individually and as the natural and legal guardian
29 of minor plaintiffs S.S.R., M.M.R., R.M.R., and S.Z.R., S.S.R., M.M.R.,
30 R.M.R., S.Z.R.,
1 Plaintiffs‐Appellants,
2
3 v.
4
5 FACEBOOK, INC.,
6 Defendant‐Appellee.1
7
8
9 Appeal from the United States District Court
10 for the Eastern District of New York.
11 No. 16‐cv‐5158 — Nicholas G. Garaufis, Judge.
12
13
14 ARGUED: FEBRUARY 25, 2019
15 DECIDED: JULY 31, 2019
16
17 Before: KATZMANN, Chief Judge, DRONEY, and SULLIVAN, Circuit
18 Judges.
19
20
21 Plaintiffs‐Appellants, U.S. citizen victims of Hamas terrorist
22 attacks in Israel (or their representatives), appeal from a final
23 judgment of the United States District Court for the Eastern District
24 of New York (Garaufis, J.). Plaintiffs brought federal civil anti‐
25 terrorism and Israeli law claims against Defendant‐Appellee
26 Facebook, Inc., alleging that Facebook unlawfully assisted Hamas in
27 those attacks. The district court dismissed the claims on the basis of
28 47 U.S.C. § 230(c)(1), which bars civil liability for claims that “treat[]”
29 a “provider or user of an interactive computer service . . . as the
30 publisher or speaker of any information provided by another
1The Clerk of the Court is directed to amend the official caption to conform to
the above.
2
1 information content provider.” We agree with the district court that
2 Section 230(c)(1) bars plaintiffs’ federal claims. We also conclude,
3 upon a review of plaintiffs’ assertion of diversity jurisdiction over
4 their foreign law claims, 28 U.S.C. § 1332(a), that such jurisdiction is
5 lacking, and we decline to exercise supplemental jurisdiction sua
6 sponte. Accordingly, we AFFIRM the judgment of the district court
7 as to plaintiffs’ federal claims and DISMISS plaintiffs’ foreign law
8 claims.
9
10 Chief Judge KATZMANN concurs in this opinion except as to
11 Parts I and II of the Discussion, concurs in the judgment with respect
12 to plaintiffs’ foreign law claims, and dissents from the judgment with
13 respect to plaintiffs’ federal claims.
14
15
16 MEIR KATZ (Robert J. Tolchin, on the
17 brief), The Berkman Law Office, LLC,
18 Brooklyn, New York, for Plaintiffs‐
19 Appellants.
20
21 CRAIG S. PRIMIS (K. Winn Allen,
22 Matthew S. Brooker, on the brief),
23 Kirkland & Ellis, LLP, Washington,
24 DC, for Defendant‐Appellee.
25
26 Sophia Cope, David Greene,
27 Electronic Frontier Foundation, San
28 Francisco, CA, amicus curiae.
29
3
1 DRONEY, Circuit Judge:
2 The principal question presented in this appeal is whether 47
3 U.S.C. § 230(c)(1), a provision enacted by the Communications
4 Decency Act of 1996, shields Defendant‐Appellee Facebook, Inc.,
5 from civil liability as to Plaintiffs‐Appellants’ federal anti‐terrorism
6 claims. Plaintiffs include the U.S. citizen victims, and relatives and
7 representatives of the estates of those victims, of certain terrorist
8 attacks committed by Hamas in Israel. They contend that Facebook
9 unlawfully provided Hamas, a U.S.‐designated foreign terrorist
10 organization, with a communications platform that enabled those
11 attacks.
12 The district court granted Facebook’s motion to dismiss
13 plaintiffs’ First Amended Complaint under Federal Rule of Civil
14 Procedure 12(b)(6) on the basis of Section 230(c)(1) immunity, an
15 affirmative defense. After entering judgment without prejudice to
16 moving to file an amended complaint, the district court denied with
4
1 prejudice plaintiffs’ motion to file a second amended complaint on the
2 basis that the proposed complaint did not cure the deficiencies in the
3 First Amended Complaint.
4 On appeal, plaintiffs argue that the district court improperly
5 dismissed their claims because Section 230(c)(1) does not provide
6 immunity to Facebook under the circumstances of their allegations.
7 We conclude that the district court properly applied Section
8 230(c)(1) to plaintiffs’ federal claims. Also, upon our review of
9 plaintiffs’ assertion of diversity jurisdiction over their foreign law
10 claims, 28 U.S.C. § 1332(a), we conclude that such jurisdiction is
11 lacking. Accordingly, we affirm the judgment of the district court as
12 to the federal claims. We also dismiss the foreign law claims, but
13 without prejudice.
5
1 FACTUAL AND PROCEDURAL BACKGROUND
2 I. Allegations in Plaintiffs’ Complaint2
3
4 Because this case comes to us on a motion to dismiss, we
5 recount the facts as plaintiffs provide them to us, treating as true the
6 allegations in their complaint. See Galper v. JP Morgan Chase Bank,
7 N.A., 802 F.3d 437, 442 (2d Cir. 2015).
8 A. The Attacks
9
10 Hamas is a Palestinian Islamist organization centered in Gaza.
11 It has been designated a foreign terrorist organization by the United
12 States and Israel. Since it was formed in 1987, Hamas has conducted
13 thousands of terrorist attacks against civilians in Israel.
14 Plaintiffs’ complaint describes terrorist attacks by Hamas
15 against five Americans in Israel between 2014 and 2016. Yaakov
16 Naftali Fraenkel, a teenager, was kidnapped by a Hamas operative in
2As used here, the term “complaint” refers to both the allegations of the First
Amended Complaint and those of the proposed second amended complaint,
which sought to supplement the prior complaint.
6
1 2014 while walking home from school in Gush Etzion, near Jerusalem,
2 and then was shot to death. Chaya Zissel Braun, a 3‐month‐old baby,
3 was killed at a train station in Jerusalem in 2014 when a Hamas
4 operative drove a car into a crowd. Richard Lakin died after Hamas
5 members shot and stabbed him in an attack on a bus in Jerusalem in
6 2015. Graduate student Taylor Force was stabbed to death by a
7 Hamas attacker while walking on the Jaffa boardwalk in Tel Aviv in
8 2016. Menachem Mendel Rivkin was stabbed in the neck in 2016 by
9 a Hamas operative while walking to a restaurant in a town near
10 Jerusalem. He suffered serious injuries but survived. Except for
11 Rivkin, plaintiffs are the representatives of the estates of those who
12 died in these attacks and family members of the victims.
13 B. Facebook’s Alleged Role in the Attacks
14 1. How Facebook Works
15 Facebook operates an “online social network platform and
16 communications service[].” App’x 230. Facebook users populate
7
1 their own “Facebook ‘pages’” with “content,” including personal
2 identifying information and indications of their particular “interests.”
3 App’x 250–51, 345. Organizations and other entities may also have
4 Facebook pages. Users can post content on others’ Facebook pages,
5 reshare each other’s content, and send messages to one another. The
6 content can be text‐based messages and statements, photos, web
7 links, or other information.
8 Facebook users must first register for a Facebook account,
9 providing their names, telephone numbers, and email addresses.
10 When registering, users do not specify the nature of the content they
11 intend to publish on the platform, nor does Facebook screen new
12 users based on its expectation of what content they will share with
13 other Facebook users. There is no charge to prospective users for
14 joining Facebook.3
3According to Facebook, hundreds of millions of Facebook pages are maintained
on its platform.
8
1 Facebook does not preview or edit the content that its users
2 post. Facebook’s terms of service specify that a user “own[s] all of the
3 content and information [the user] post[s] on Facebook, and [the user]
4 can control how it is shared through [the user’s] privacy and
5 application settings.” App’x 252 (alterations in original).
6 While Facebook users may view each other’s shared content
7 simply by visiting other Facebook pages and profiles, Facebook also
8 provides a personalized “newsfeed” page for each user. Facebook
9 uses algorithms—“a precisely defined set of mathematical or logical
10 operations for the performance of a particular task,” Algorithm,
11 Oxford English Dictionary (3d ed. 2012)—to determine the content to
12 display to users on the newsfeed webpage. Newsfeed content is
13 displayed within banners or modules and changes frequently. The
14 newsfeed algorithms—developed by programmers employed by
15 Facebook—automatically analyze Facebook users’ prior behavior on
16 the Facebook website to predict and display the content that is most
9
1 likely to interest and engage those particular users. Other algorithms
2 similarly use Facebook users’ behavioral and demographic data to
3 show those users third‐party groups, products, services, and local
4 events likely to be of interest to them.
5 Facebook’s algorithms also provide “friend suggestions,”
6 which, if accepted by the user, result in those users seeing each other’s
7 shared content. App’x 346–47. The friend‐suggestion algorithms are
8 based on such factors as the users’ common membership in
9 Facebook’s online “groups,” geographic location, attendance at
10 events, spoken language, and mutual friend connections on
11 Facebook. App’x 346.
12 Facebook’s advertising algorithms and “remarketing”
13 technology also allow advertisers on Facebook to target specific ads
14 to its users who are likely to be most interested in them and thus to
15 be most beneficial to those advertisers. App’x 347. Those
16 advertisements are displayed on the users’ pages and other Facebook
10
1 webpages. A substantial portion of Facebook’s revenues is from such
2 advertisers.
3 2. Hamas’s Use of Facebook4
4 Plaintiffs allege that Hamas used Facebook to post content that
5 encouraged terrorist attacks in Israel during the time period of the
6 attacks in this case. The attackers allegedly viewed that content on
7 Facebook. The encouraging content ranged in specificity; for
8 example, Fraenkel, although not a soldier, was kidnapped and
9 murdered after Hamas members posted messages on Facebook that
10 advocated the kidnapping of Israeli soldiers. The attack that killed
11 the Braun baby at the light rail station in Jerusalem came after Hamas
12 posts encouraged car‐ramming attacks at light rail stations. By
13 contrast, the killer of Force is alleged to have been a Facebook user,
14 but plaintiffs do not set forth what specific content encouraged his
4 When we refer to “Hamas” as users of Facebook in this opinion, we mean
individuals alleged to be Hamas members or supporters, as well as various Hamas
entities that are alleged to have Facebook pages.
11
1 attack, other than that “Hamas . . . use[d] Facebook to promote
2 terrorist stabbings.” App’x 335.
3 Hamas also used Facebook to celebrate these attacks and
4 others, to transmit political messages, and to generally support
5 further violence against Israel. The perpetrators were able to view
6 this content because, although Facebook’s terms and policies bar such
7 use by Hamas and other designated foreign terrorist organizations,
8 Facebook has allegedly failed to remove the “openly maintained”
9 pages and associated content of certain Hamas leaders, spokesmen,
10 and other members. App’x 229. It is also alleged that Facebook’s
11 algorithms directed such content to the personalized newsfeeds of the
12 individuals who harmed the plaintiffs. Thus, plaintiffs claim,
13 Facebook enables Hamas “to disseminate its messages directly to its
14 intended audiences,” App’x 255, and to “carry out the essential
15 communication components of [its] terror attacks,” App’x 256.
12
1 II. Facebook’s Antiterrorism Efforts
2 A. Intended Uses of Facebook
3 Facebook has Terms of Service that govern the use of Facebook
4 and purport to incorporate Facebook’s Community Standards.5 In its
5 Terms of Service, Facebook represents that its services are intended to
6 “[c]onnect you with people and organizations you care about,” by,
7 among other things, “[p]rovid[ing] a personalized experience” and
8 “[h]elp[ing] you discover content, products, and services that may
9 interest you.” Terms of Service, Facebook,
10 https://www.facebook.com/terms.php (last visited June 26, 2019). To
5 Plaintiffs’ complaint relies extensively on, and incorporates by reference,
Facebook’s Terms of Service and Community Standards (together, “terms”). The
publicly available terms are also subject to judicial notice. See Fed. R. Evid.
201(b)(2); see also, e.g., 23‐34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d
174, 183 n.7 (2d Cir. 2012) (taking judicial notice of content of website whose
authenticity was not in question). With the exception of such terms that plaintiffs
allege Facebook actually follows in practice, we recount this information only for
the limited purpose of setting forth Facebook’s stated representations about its
policies and practices and to provide context for plaintiffs’ allegations, but not for
the truth of whether Facebook follows those policies.
13
1 do so, Facebook “must collect and use your personal data,” id., subject
2 to a detailed “Data Policy,” Data Policy, Facebook,
3 https://www.facebook.com/about/privacy/update (last visited June
4 26, 2019). Facebook also uses information about its users to sell
5 targeted online advertising and to provide advertisers with data on
6 the effectiveness of their ads. How do we use this information?, Data
7 Policy, Facebook, https://www.facebook.com/about/privacy/update
8 (last visited May 23, 2019).
9 B. Prohibited Uses of Facebook
10 According to the current version of Facebook’s Community
11 Standards, Facebook “remove[s] content that expresses support or
12 praise for groups, leaders, or individuals involved in,” inter alia,
13 “[t]errorist activity.” 2. Dangerous Individuals and Organizations,
14 Community Standards, Facebook,
15 https://www.facebook.com/communitystandards/dangerous_indivi
16 duals_organizations (last visited June 26, 2019). “Terrorist
14
1 organizations and terrorists” may not “maintain a presence” on
2 Facebook, nor is “coordination of support” for them allowed. Id.
3 Facebook “do[es] not allow symbols that represent any [terrorist]
4 organizations or [terrorists] to be shared on [the] platform without
5 context that condemns or neutrally discusses the content.” Id. In
6 addition, Facebook purports to ban “hate speech” and to “remove
7 content that glorifies violence or celebrates the suffering or
8 humiliation of others.” Objectionable Content, Community Standards,
9 Facebook, https://www.facebook.com/communitystandards/objectio
10 nable_content (last visited June 26, 2019).
11 Facebook’s Terms of Service also prohibit using its services “to
12 do or share anything” that is, inter alia, “unlawful” or that “infringes
13 or violates someone else’s rights.”6 Terms of Service, supra. Violating
6Facebook’s sign‐up webpage states that by clicking “Sign Up,” prospective users
agree to Facebook’s Terms of Service, Data Policy, and Cookies Policy—all of
which are hyperlinked from that page. Create a New Account, Facebook,
https://www.facebook.com/r.php (last visited June 26, 2019). As indicated above,
the Terms of Service also purport to incorporate Facebook’s Community
Standards.
15
1 any of these policies may result in Facebook suspending or disabling
2 a user’s account, removing the user’s content, blocking access to
3 certain features, and contacting law enforcement. Id.
4 According to recent testimony by Facebook’s General Counsel
5 in a United States Senate hearing, Facebook employs a multilayered
6 strategy to enforce these policies and combat extremist content on its
7 platform.7 Facebook claimed in the hearing that most of the content
8 it removes is identified by Facebook’s internal procedures before it is
9 reported by users. For example, terrorist photos or videos that users
10 attempt to upload are matched against an inventory of known
11 terrorist content. Facebook is also experimenting with artificial
12 intelligence to block or remove “text that might be advocating for
13 terrorism.” App’x 373. When Facebook detects terrorist‐related
14 content, it also uses artificial intelligence to identify similar, socially
7Plaintiffs included this testimony in the appendix on appeal and attached and
referred to the testimony in their brief responding to the district court’s order to
show cause for why their proposed second amended complaint was not futile. We
recount such testimony only for the purposes described supra n.5.
16
1 interconnected accounts, content, and pages that may themselves
2 support terrorism.
3 The General Counsel also testified that, for content that is not
4 automatically detected, Facebook employs thousands of people who
5 respond to user reports of inappropriate content and remove such
6 content. Id. Facebook also has a 150‐person team of
7 “counterterrorism specialists,” including academics, engineers, and
8 former prosecutors and law enforcement officers.8 Id.
8 Facebook has been criticized recently—and frequently—for not doing enough to
take down offensive or illegal content. E.g., Cecilia Kang, Nancy Pelosi Criticizes
Facebook for Handling of Altered Videos, N.Y. Times (May 29, 2019),
https://www.nytimes.com/2019/05/29/technology/facebook‐pelosi‐video.html;
Kalev Leetaru, Countering Online Extremism Is Too Important to Leave to Facebook,
FORBES (May 9, 2019),
https://www.forbes.com/sites/kalevleetaru/2019/05/09/countering‐online‐
extremism‐is‐too‐important‐to‐leave‐to‐facebook; Julia Fioretti, Internet Giants Not
Doing Enough to Take Down Illegal Content: EU, Reuters (Jan. 9, 2018),
https://www.reuters.com/article/us‐eu‐internet‐meeting/internet‐giants‐not‐
doing‐enough‐to‐take‐down‐illegal‐content‐eu‐idUSKBN1EY2BL; see Staehr v.
Harford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (“[I]t is proper to take
judicial notice of the fact that press coverage . . . contained certain information,
without regard to the truth of their contents.”).
17
1 III. District Court Proceeding
2 Plaintiffs brought this action on July 10, 2016, in the United
3 States District Court for the Southern District of New York. On
4 consent of the parties, the action was transferred to the United States
5 District Court for the Eastern District of New York on September 16,
6 2016. 9 In their First Amended Complaint, Plaintiffs claimed that,
7 under 18 U.S.C. § 2333, Facebook was civilly liable for aiding and
8 abetting Hamas’s acts of international terrorism; conspiring with
9 Hamas in furtherance of acts of international terrorism; providing
10 material support to terrorists; and providing material support to a
11 designated foreign terrorist organization.10 Plaintiffs also alleged that
9The parties moved jointly under 28 U.S.C. § 1404(a) to transfer the case to the
Eastern District of New York because plaintiffs’ counsel had already filed the
Cohen action there, see infra n.11, and resolving both cases in the same district, the
parties argued, would be efficient and convenient.
1018 U.S.C. § 2333 provides civil remedies for injuries suffered through acts of
international terrorism. Plaintiffs also cite to 18 U.S.C. § 2339A (providing material
support for terrorism) and § 2339B (providing material support or resources to a
designated foreign terrorist organization).
18
1 the district court had diversity‐based subject matter jurisdiction
2 under 28 U.S.C. § 1332(a)(2) to adjudicate Plaintiffs’ Israeli‐law tort
3 claims arising from the same conduct.
4 Facebook moved to dismiss plaintiffs’ claims for lack of
5 personal jurisdiction under Rule 12(b)(2) and for failure to state a
6 claim under Rule 12(b)(6). The district court determined that it had
7 personal jurisdiction over Facebook, a ruling that Facebook does not
8 challenge on appeal. But the district court also held that 47 U.S.C.
9 § 230(c)(1) foreclosed plaintiffs’ claims because they impermissibly
10 involved “treat[ing]” Facebook “as the publisher or speaker of any
11 information provided by” Hamas. S. App’x 18–23 (quoting 47 U.S.C.
12 § 230(c)(1)).11 On May 18, 2017, the district court granted the motion
13 to dismiss under Rule 12(b)(6) and entered judgment in Facebook’s
11In the same opinion, the district court also dismissed for lack of Article III
standing the claims brought in a separate action by 20,000 Israeli citizens who,
according to the district court, claimed “to be threatened only by potential future
attacks.” S. App’x 3. The district court referred to those plaintiffs as the “Cohen
Plaintiffs” and to the plaintiffs in this appeal as the “Force Plaintiffs.” Id. at 1. The
Cohen Plaintiffs did not appeal. Cohen v. Facebook, 16‐cv‐04453‐NGG‐LB
(E.D.N.Y.).
19
1 favor, without prejudice to plaintiffs seeking leave to file an amended
2 complaint.
3 Plaintiffs then filed a Rule 59(e) motion to alter the judgment,
4 asking the district court to reconsider its dismissal of their First
5 Amended Complaint, and filed a motion seeking leave to file a second
6 amended complaint. The proposed complaint retained all of
7 plaintiffs’ prior claims for relief and added a claim that Facebook had
8 concealed its alleged material support to Hamas. In January 2018, the
9 district court denied plaintiffs’ motions with prejudice, holding that
10 plaintiffs’ proposed second amended complaint was futile in light of
11 47 U.S.C. § 230(c)(1). Plaintiffs timely appealed.
12 STANDARD OF REVIEW
13 Because the district court determined that it was futile to allow
14 plaintiffs to file a second amended complaint, we evaluate that
15 proposed complaint “as we would a motion to dismiss, determining
16 whether [it] contains enough facts to state a claim to relief that is
20
1 plausible on its face.”12 Ind. Pub. Ret. Sys. v. SAIC, Inc., 818 F.3d 85, 92
2 (2d Cir. 2016) (citation and internal quotation marks omitted). We
3 accept as true all alleged facts in both the First Amended Complaint
4 and the proposed second amended complaint.13 See Ashcroft v. Iqbal,
5 556 U.S. 662, 678 (2009). We also review de novo a district court’s grant
6 of a Rule 12(b)(6) motion to dismiss on the basis of an affirmative
7 defense. See Ricci v. Teamsters Union Local 456, 781 F.3d 25, 26 (2d Cir.
8 2015).
9 DISCUSSION
10 On appeal, plaintiffs contend that the district court improperly
11 held that Section 230(c)(1) barred their claims. Plaintiffs argue that
12 their claims do not treat Facebook as the “publisher” or “speaker” of
12 We have jurisdiction over this appeal from a final judgment. 28 U.S.C. § 1291.
13Plaintiffs do not distinguish their arguments between their First Amended
Complaint, which the district court dismissed, and their proposed second
amended complaint, which the district court determined was futile. We agree that
the Section 230(c)(1) issues raised by both complaints are materially
indistinguishable.
21
1 content 14 provided by Hamas, as Section 230(c)(1) requires for
2 immunity. Plaintiffs similarly contend that Facebook contributed to
3 that content through its algorithms. Plaintiffs also argue that to apply
4 Section 230(c)(1) to their claims based on Facebook’s and Hamas’s
5 actions taken outside of the United States would constitute the
6 unlawful extraterritorial application of that statute. In addition,
7 plaintiffs maintain that 47 U.S.C. § 230(e)(1), which provides that
8 Section 230 shall not be “construed to impair the enforcement of . . .
9 any . . . Federal criminal statute,” precludes the application of Section
10 230(c)(1) to their claims, that the Anti‐Terrorism Act’s (“ATA”) civil
11 remedies provision, 18 U.S.C. § 2333, irreconcilably conflicts with
12 Section 230(c)(1), and that the Justice Against Sponsors of Terrorism
13 Act (“JASTA”) impliedly narrowed or repealed Section 230(c)(1).
14 Lastly, plaintiffs contend that Section 230(c)(1) cannot apply to their
14 We refer to “content” and “information” synonymously in this opinion.
22
1 claims brought under the foreign law of Israel.
2 In response to plaintiffs’ claims, Facebook contends that Section
3 230(c)(1) provides it immunity and that, even absent such immunity,
4 plaintiffs fail to plausibly allege that Facebook assisted Hamas in the
5 ways required for their federal antiterrorism claims and Israeli law
6 claims.
7 We first turn to the issues regarding Section 230(c)(1). 15
8 I. Background of Section 230(c)(1)
9 The primary purpose of the proposed legislation that
10 ultimately resulted in the Communications Decency Act (“CDA”)
11 “was to protect children from sexually explicit internet content.” FTC
12 v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016) (citing 141
15Plaintiffs argue that the district court prematurely applied Section 230(c)(1), an
affirmative defense, because discovery might show that Facebook was indeed a
“developer” of Hamas’s content. However, the application of Section 230(c)(1) is
appropriate at the pleading stage when, as here, the “statute’s barrier to suit is
evident from the face of” plaintiffs’ proposed complaint. Ricci, 781 F.3d at 28; see
also Marshall’s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1267–68 (D.C. Cir.
2019) (affirming dismissal of claims at pleading stage based on Section 230(c)(1)
immunity).
23
1 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon)).
2 Section 230, though—added as an amendment to the CDA bill, id.—
3 was enacted “to maintain the robust nature of Internet
4 communication and, accordingly, to keep government interference in
5 the medium to a minimum,” Ricci, 781 F.3d at 28 (quoting Zeran v.
6 Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). Indeed, Congress
7 stated in Section 230 that “[i]t is the policy of the United States—(1) to
8 promote the continued development of the Internet and other
9 interactive computer services and other interactive media; [and] (2) to
10 preserve the vibrant and competitive free market that presently exists
11 for the Internet and other interactive computer services, unfettered by
12 Federal or State regulation.” 47 U.S.C. § 230(b)(1)–(2).
13 In the seminal Fourth Circuit decision interpreting the
14 immunity of Section 230 shortly after its enactment, Zeran v. America
15 Online, Inc., that court described Congress’s concerns underlying
16 Section 230:
24
1 The amount of information communicated via
2 interactive computer services is . . . staggering. The
3 specter of . . . liability in an area of such prolific speech
4 would have an obvious chilling effect. It would be
5 impossible for service providers to screen each of their
6 millions of postings for possible problems. Faced with
7 potential liability for each message republished by their
8 services, interactive computer service providers might
9 choose to severely restrict the number and type of
10 messages posted. Congress . . . chose to immunize
11 service providers to avoid any such restrictive effect.
12
13 129 F.3d at 331.
14
15 The addition of Section 230 to the proposed CDA also
16 “assuaged Congressional concern regarding the outcome of two
17 inconsistent judicial decisions,” Cubby, Inc. v. CompuServe, Inc., 776 F.
18 Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Servs.
19 Co., No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), both
20 of which “appl[ied] traditional defamation law to internet providers,”
21 LeadClick, 838 F.3d at 173. As we noted in LeadClick, “[t]he first
22 [decision] held that an interactive computer service provider could
23 not be liable for a third party’s defamatory statement . . . but the
25
1 second imposed liability where a service provider filtered its content
2 in an effort to block obscene material.” Id. (citations omitted) (citing
3 141 Cong. Rec. H8469‐70 (daily ed. Aug. 4, 1995 (statement of Rep.
4 Cox))).
5 To “overrule Stratton,” id., and to accomplish its other
6 objectives, Section 230(c)(1) provides that “[n]o provider . . . of an
7 interactive computer service shall be treated as the publisher or
8 speaker of any information provided by another information content
9 provider.” 16 47 U.S.C. § 230(c)(1). Subject to certain delineated
10 exceptions, id. § 230(e), Section 230(c)(1) thus shields a defendant from
16 Section 230(c)(2), which, like Section 230(c)(1), is contained under the
subheading “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive
Material,” 47 U.S.C. § 230(c), responds to Stratton even more directly. It provides
that “[n]o provider or user of an interactive computer service shall be held liable
on account of—(A) any action voluntarily taken in good faith to restrict access to
or availability of material that the provider or user considers to be obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected; or (B) any action taken
to enable or make available to information content providers or others the
technical means to restrict access to material described in [Section 230(c)(1)].” Id.
§ 230(c)(2).
26
1 civil liability when: (1) it is a “provider or user of an interactive
2 computer service,” as defined by § 230(f)(2); (2) the plaintiff’s claims
3 “treat[]” the defendant as the “publisher or speaker” of information,
4 id. § 230(c)(1); and (3) that information is “provided by” an
5 “information content provider,” id. § 230(f)(3), other than the
6 defendant interactive computer service.
7 In light of Congress’s objectives, the Circuits are in general
8 agreement that the text of Section 230(c)(1) should be construed
9 broadly in favor of immunity. See LeadClick, 838 F.3d at 173 (collecting
10 cases); Marshall’s Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263,
11 1267 (D.C. Cir. 2019) (“Congress inten[ded] to confer broad immunity
12 for the re‐publication of third‐party content.”); Jane Doe No. 1 v.
13 Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016) (“There has been
14 near‐universal agreement that section 230 should not be construed
15 grudgingly.”); Jones v. Dirty World Entmʹt Recordings LLC, 755 F.3d
16 398, 408 (6th Cir. 2014) (“[C]lose cases . . . must be resolved in favor of
27
1 immunity.”) (quoting Fair Hous. Council v. Roommates.Com, LLC, 521
2 F.3d 1157, 1174 (9th Cir. 2008) (en banc))); Doe v. MySpace, Inc., 528
3 F.3d 413, 418 (5th Cir. 2008) (“Courts have construed the immunity
4 provisions in § 230 broadly in all cases arising from the publication of
5 user‐generated content.”); Almeida v. Amazon.com, Inc., 456 F.3d 1316,
6 1321 (11th Cir. 2006) (“The majority of federal circuits have
7 interpreted [Section 230] to establish broad . . . immunity.”)); Carafano
8 v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (Ҥ 230(c)
9 provides broad immunity for publishing content provided primarily
10 by third parties.”) (citation omitted); Zeran, 129 F.3d at 330 (4th Cir.
11 1997) (“Congress recognized the threat that tort‐based lawsuits pose
12 to freedom of speech in the new and burgeoning Internet medium.”).
28
1 II. Whether Section 230(c)(1) Protects Facebook’s Alleged
2 Conduct17
3
4 The parties agree that Facebook is a provider of an “interactive
5 computer service,” but dispute whether plaintiffs’ claims allege that
6 (1) Facebook is acting as the protected publisher of information, and
7 (2) the challenged information is provided by Hamas, or by Facebook
8 itself.18
9 A. Whether Plaintiffs’ Claims Implicate Facebook as a
10 “Publisher” of Information
11
12 Certain important terms are left undefined by Section 230(c)(1),
17 Because, as is discussed later in this opinion, plaintiffs’ foreign law claims are
dismissed on jurisdictional grounds, our discussion of Section 230(c)(1) immunity
is confined to plaintiffs’ federal claims.
18Plaintiffs also argue that because publication is not an explicit element of their
federal anti‐terrorism claims, Section 230(c)(1) does not provide Facebook with
immunity. However, it is well established that Section 230(c)(1) applies not only
to defamation claims, where publication is an explicit element, but also to claims
where “the duty that the plaintiff alleges the defendant violated derives from the
defendant’s status or conduct as a publisher or speaker.” LeadClick, 838 F.3d at 175
(quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009)) (emphasis
added) (internal quotation marks omitted). “Thus, courts have invoked the
prophylaxis of section 230(c)(1) in connection with a wide variety of causes of
action, including housing discrimination, negligence, and securities fraud and
cyberstalking.” Backpage.com, 817 F.3d at 19 (internal citations omitted); see also
Marshall’s Locksmith, 925 F.3d at 1267 (“As courts uniformly recognize, § 230
29
1 including “publisher.” 47 U.S.C. § 230(c)(1). This Circuit and others
2 have generally looked to that term’s ordinary meaning:19 “one that
3 makes public,” Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir.
4 2014) (citing Webster’s Third New International Dictionary 1837
5 (1981)); “the reproducer of a work intended for public consumption,”
6 LeadClick, 838 F.3d at 175 (citing Barnes v. Yahoo!, Inc., 570 F.3d 1096,
7 1102 (9th Cir. 2009) (quoting Webster’s Third New International
8 Dictionary 1837 (Philip Babcock Gove ed., 1986))); and “one whose
9 business is publication,” id. Consistent with these definitions, in
10 Zeran v. America Online, Inc., the Fourth Circuit concluded that “[e]ven
11 distributors are considered to be publishers,” including “[t]hose who
12 are in the business of making their facilities available to disseminate
immunizes internet services for third‐party content that they publish, . . . against
causes of action of all kinds.”); HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d
676, 684 (9th Cir. 2019) (“[W]e have repeatedly held the scope of [Section 230]
immunity to reach beyond defamation cases.”).
19 “When a term goes undefined in a statute, we give the term
its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).
30
1 . . . the information gathered by others.” 129 F.3d at 332 (quoting W.
2 Page Keeton et al., Prosser and Keeton on the Law of Torts § 113, at
3 803 (5th ed. 1984)). The courts’ generally broad construction of
4 Section 230(c)(1) in favor of immunity “has resulted in a capacious
5 conception of what it means to treat a website operator as the
6 publisher . . . of information provided by a third party.” Backpage.com,
7 817 F.3d at 19.
8 Plaintiffs seek to hold Facebook liable for “giving Hamas a
9 forum with which to communicate and for actively bringing Hamas’
10 message to interested parties.” Appellants’ Reply Br. 37; see also, e.g.,
11 Appellants’ Br. 50–51 (arguing that the federal anti‐terrorism statutes
12 “prohibit[] Facebook from supplying Hamas a platform and
13 communications services”). But that alleged conduct by Facebook
14 falls within the heartland of what it means to be the “publisher” of
15 information under Section 230(c)(1). So, too, does Facebook’s alleged
16 failure to delete content from Hamas members’ Facebook pages. See
31
1 LeadClick, 838 F.3d at 174 (stating that acting as the “publisher” under
2 Section 230(c)(1) includes the decision whether to “withdraw”
3 content).
4 Plaintiffs also argue that Facebook does not act as the publisher
5 of Hamas’s content within the meaning of Section 230(c)(1) because it
6 uses algorithms to suggest content to users, resulting in
7 “matchmaking.” Appellants’ Br. 51–52. For example, plaintiffs allege
8 that Facebook’s “newsfeed” uses algorithms that predict and show
9 the third‐party content that is most likely to interest and engage users.
10 Facebook’s algorithms also provide “friend suggestions,” based on
11 analysis of users’ existing social connections on Facebook and other
12 behavioral and demographic data. And, Facebook’s advertising
13 algorithms and “remarketing” technology allow advertisers to target
14 ads to its users who are likely most interested in those ads.
15 We disagree with plaintiffs’ contention that Facebook’s use of
16 algorithms renders it a non‐publisher. First, we find no basis in the
32
1 ordinary meaning of “publisher,” the other text of Section 230, or
2 decisions interpreting Section 230, for concluding that an interactive
3 computer service is not the “publisher” of third‐party information
4 when it uses tools such as algorithms that are designed to match that
5 information with a consumer’s interests.20 Cf., e.g., Roommates.Com,
6 521 F.3d at 1172 (recognizing that Matchmaker.com website, which
7 “provided neutral tools specifically designed to match romantic
8 partners depending on their voluntary inputs,” was immune under
9 Section 230(c)(1)) (citing Carafano, Inc., 339 F.3d 1119); Carafano, 339
10 F.3d at 1124–25 (“Matchmaker’s decision to structure the information
11 provided by users allows the company to offer additional features,
12 such as ‘matching’ profiles with similar characteristics . . . , [and such
13 features] [a]rguably promote[] the expressed Congressional policy ‘to
14 promote the continued development of the Internet and other
20To the extent that plaintiffs rely on their undeveloped contention that the
algorithms are “designed to radicalize,” Appellants’ Br. 51, we deem that
argument waived. In addition, this allegation is not made in plaintiffs’ complaints.
33
1 interactive computer services.’ 47 U.S.C. § 230(b)(1).”); Herrick v.
2 Grindr, LLC, 765 F. App’x 586, 591 (2d Cir. 2019) (summary order) (“To
3 the extent that [plaintiff’s claims] are premised on Grindr’s [user‐
4 profile] matching and geolocation features, they are likewise
5 barred . . . .”).21
6 Indeed, arranging and distributing third‐party information
7 inherently forms “connections” and “matches” among speakers,
8 content, and viewers of content, whether in interactive internet
9 forums or in more traditional media.22 That is an essential result of
21While lacking precedential value, “[w]e are, of course, permitted to consider
summary orders for their persuasive value, and often draw guidance from them
in later cases.” Brault v. Soc. Sec. Admin., Commʹr, 683 F.3d 443, 450 n.5 (2d Cir.
2012).
22As journalist and author Tom Standage has observed, “[M]any of the ways in
which we share, consume, and manipulate information, even in the Internet era,
build upon habits and conventions that date back centuries.” Tom Standage,
Writing on the Wall: Social Media – The First 2000 Years 5 (2013). See also Tom
Standage, Benjamin Franklin, Social Media Pioneer, Medium (Dec. 10, 2013),
https://medium.com/new‐media/benjamin‐franklin‐social‐media‐pioneer‐
3fb505b1ce7c (“Small and local, with circulations of a few hundred copies at best,
[colonial] newspapers consisted in large part of letters from readers, and reprinted
speeches, pamphlets and items from other papers. They provided an open
platform through which people could share and discuss their views with others.
They were, in short, social media.”).
34
1 publishing. Accepting plaintiffs’ argument would eviscerate Section
2 230(c)(1); a defendant interactive computer service would be
3 ineligible for Section 230(c)(1) immunity by virtue of simply
4 organizing and displaying content exclusively provided by third
5 parties.
6 Plaintiffs’ “matchmaking” argument would also deny
7 immunity for the editorial decisions regarding third‐party content
8 that interactive computer services have made since the early days of
9 the Internet. The services have always decided, for example, where
10 on their sites (or other digital property) particular third‐party content
11 should reside and to whom it should be shown. Placing certain third‐
12 party content on a homepage, for example, tends to recommend that
13 content to users more than if it were located elsewhere on a website.
14 Internet services have also long been able to target the third‐party
15 content displayed to users based on, among other things, users’
16 geolocation, language of choice, and registration information. And,
35
1 of course, the services must also decide what type and format of third‐
2 party content they will display, whether that be a chat forum for
3 classic car lovers, a platform for blogging, a feed of recent articles
4 from news sources frequently visited by the user, a map or directory
5 of local businesses, or a dating service to find romantic partners. All
6 of these decisions, like the decision to host third‐party content in the
7 first place, result in “connections” or “matches” of information and
8 individuals, which would have not occurred but for the internet
9 services’ particular editorial choices regarding the display of third‐
10 party content. We, again, are unaware of case law denying Section
11 230(c)(1) immunity because of the “matchmaking” results of such
12 editorial decisions.
13 Seen in this context, plaintiffs’ argument that Facebook’s
14 algorithms uniquely form “connections” or “matchmake” is wrong.
15 That, again, has been a fundamental result of publishing third‐party
16 content on the Internet since its beginning. Like the decision to place
36
1 third‐party content on a homepage, for example, Facebook’s
2 algorithms might cause more such “matches” than other editorial
3 decisions. But that is not a basis to exclude the use of algorithms from
4 the scope of what it means to be a “publisher” under Section 230(c)(1).
5 The matches also might—as compared to those resulting from other
6 editorial decisions—present users with targeted content of even more
7 interest to them, just as an English speaker, for example, may be best
8 matched with English‐language content. But it would turn Section
9 230(c)(1) upside down to hold that Congress intended that when
10 publishers of third‐party content become especially adept at
11 performing the functions of publishers, they are no longer immunized
12 from civil liability.23
23The dissent contends that our holding would necessarily immunize the dissent’s
hypothetical phone‐calling acquaintance who brokers a connection between two
published authors and facilitates the sharing of their works. See Dissent at 2. We
disagree, for the simple reason that Section 230(c)(1) immunizes publishing
activity only insofar as it is conducted by an “interactive computer service.”
Moreover, the third‐party information must be “provided through the Internet or
any other interactive computer service.” 47 U.S.C. § 230(f)(3).
37
1 Second, plaintiffs argue, in effect, that Facebook’s use of
2 algorithms is outside the scope of publishing because the algorithms
3 automate Facebook’s editorial decision‐making. That argument, too,
4 fails because “so long as a third party willingly provides the essential
5 published content, the interactive service provider receives full
6 immunity regardless of the specific edit[orial] or selection process.”
7 Carafano, 339 F.3d at 1124; see Marshall’s Locksmith, 925 F.3d at 1271
8 (holding that “automated editorial act[s]” are protected by Section
9 230) (quoting O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir.
10 2016)); cf., e.g., Roommates.Com, 521 F.3d at 1172; Herrick, 765 F. App’x
11 at 591. We disagree with plaintiffs that in enacting Section 230 to, inter
12 alia, “promote the continued development of the Internet,” 47 U.S.C.
13 § 230(b)(1), and “preserve the vibrant and competitive free market,”
14 id. § 230(b)(2), Congress implicitly intended to restrain the automation
15 of interactive computer services’ publishing activities in order for
16 them to retain immunity.
38
1 Our dissenting colleague calls for a narrow textual
2 interpretation of Section 230(c)(1) by contending that the Internet was
3 an “afterthought” of Congress in the CDA because the medium
4 received less “committee attention” than other forms of media and
5 that Congress, with Section 230, “tackled only . . . the ease with which
6 the Internet delivers indecent or offensive material, especially to
7 minors.” Dissent at 5–6. But such a constrained view of Section 230
8 simply is not supported by the actual text of the statute that Congress
9 passed. In addition to the broad language of Section 230(c)(1) and the
10 pro‐Internet‐development policy statements in Section 230 (discussed
11 ante at 24, 38), Congress announced the following specific findings in
12 Section 230:
13 (1) The rapidly developing array of Internet and other
14 interactive computer services available to individual
15 Americans represent an extraordinary advance in the
16 availability of educational and informational resources
17 to our citizens.
18
19 (2) These services offer users a great degree of control
20 over the information that they receive, as well as the
39
1 potential for even greater control in the future as
2 technology develops.
3
4 (3) The Internet and other interactive computer services
5 offer a forum for a true diversity of political discourse,
6 unique opportunities for cultural development, and
7 myriad avenues for intellectual activity.
8
9 (4) The Internet and other interactive computer services
10 have flourished, to the benefit of all Americans, with a
11 minimum of government regulation.
12
13 (5) Increasingly Americans are relying on interactive
14 media for a variety of political, educational, cultural, and
15 entertainment services.
16
17 47 U.S.C. § 230(a)(1)–(5). These Congressional statements all point to
18 the benefits of interactive media and “publisher” immunity to
19 interactive computer services when they arrange and transmit
20 information provided by others.
21 We therefore conclude that plaintiffs’ claims fall within
22 Facebook’s status as the “publisher” of information within the
23 meaning of Section 230(c)(1).
40
1 B. Whether Facebook is the Provider of the Information
2 We turn next to whether Facebook is plausibly alleged to itself
3 be an “information content provider,” or whether it is Hamas that
4 provides all of the complained‐of content. “The term ‘information
5 content provider’ means any person or entity that is responsible, in
6 whole or in part, for the creation or development of information
7 provided through the Internet or any other interactive computer
8 service.” 47 U.S.C. § 230(f)(3). If Facebook was a creator or developer,
9 even “in part,” of the terrorism‐related content upon which plaintiffs’
10 claims rely, then Facebook is an “information content provider” of
11 that content and is not protected by Section 230(c)(1) immunity.
12 47 U.S.C. § 230(f)(3). Plaintiffs contend that Facebook’s algorithms
13 “develop” Hamas’s content by directing such content to users who
14 are most interested in Hamas and its terrorist activities, without those
41
1 users necessarily seeking that content.
2 The term “development” in Section 230(f)(3) is undefined.
3 However, consistent with broadly construing “publisher” under
4 Section 230(c)(1), we have recognized that a defendant will not be
5 considered to have developed third‐party content unless the
6 defendant directly and “materially” contributed to what made the
7 content itself “unlawful.” LeadClick, 838 F.3d at 174 (quoting
8 Roommates.Com, 521 F.3d at 1168). This “material contribution” test,
9 as the Ninth Circuit has described it, “draw[s] the line at the ‘crucial
10 distinction between, on the one hand, taking actions . . . to . . . display
11 . . . actionable content and, on the other hand, responsibility for what
12 makes the displayed content [itself] illegal or actionable.’” Kimzey v.
13 Yelp! Inc., 836 F.3d 1263, 1269 n.4 (9th Cir. 2016) (quoting Jones,
14 755 F.3d at 413–14).
15 Employing this “material contribution” test, we held in FTC v.
16 LeadClick that the defendant LeadClick had “developed” third parties’
42
1 content by giving specific instructions to those parties on how to edit
2 “fake news” that they were using in their ads to encourage consumers
3 to purchase their weight‐loss products. LeadClick, 838 F.3d at 176.
4 LeadClick’s suggestions included adjusting weight‐loss claims and
5 providing legitimate‐appearing news endorsements, thus “materially
6 contributing to [the content’s] alleged unlawfulness.” Id. (quoting
7 Roommates.Com, 521 F.3d at 1160) (alterations in the original).
8 LeadClick also concluded that a defendant may, in some
9 circumstances, be a developer of its users’ content if it encourages or
10 advises users to provide the specific actionable content that forms the
11 basis for the claim. See id. Similarly, in Fair Housing Council v.
12 Roommates.Com, 521 F.3d at 1172, the Ninth Circuit determined that—
13 in the context of the Fair Housing Act, 42 U.S.C. § 3601 et seq., which
14 prohibits discrimination on the basis of sex, family status, sexual
15 orientation, and other protected classes in activities related to
16 housing—the defendant website’s practice of requiring users to use
43
1 pre‐populated responses to answer inherently discriminatory
2 questions about membership in those protected classes amounted to
3 developing the actionable information for purposes of the plaintiffs’
4 discrimination claim.
5 Although it did not explicitly adopt the “material contribution”
6 test, the D.C. Circuit’s recent decision in Marshall’s Locksmith Service v.
7 Google, 925 F.3d 1263, illustrates how a website’s display of third‐
8 party information does not cross the line into content development.
9 There, “scam locksmiths”—who were apparently actual locksmiths
10 seeking to mislead consumers with lock emergencies into believing
11 that they were closer in proximity to the emergency location than they
12 actually were—allegedly provided Google, Microsoft, and Yahoo!’s
13 internet mapping services with false locations, some of which were
14 exact street addresses and others which were “less‐exact,” such as
15 telephone area codes. Id. at 1265–70. The internet mapping services
16 of Google, Microsoft, and Yahoo! translated this information into
44
1 textual and pictorial “pinpoints” on maps that were displayed to the
2 services’ users. Id. at 1269. The D.C. Circuit concluded that this
3 “translation” of the third‐party information by the interactive
4 computer services did not develop that information (or create new
5 content) because the underlying “information [was] entirely provided
6 by the third party, and the choice of presentation” fell within the
7 interactive computer services’ prerogative as publishers. Id.
8 (emphasis added).
9 As to the “less‐exact” location information, such as area codes,
10 provided by the scam locksmiths, the plaintiffs also argued that the
11 mapping services’ algorithmic translation of this information into
12 exact pinpoint map locations developed or created the misleading
13 information. Id. at 1269–70. The D.C. Circuit also rejected that
14 argument, holding that “defendants’ translation of [imprecise] third‐
15 party information into map pinpoints does not convert them into
16 ‘information content providers’ because defendants use a neutral
45
1 algorithm to make that translation.” Id. at 1270. In using the term
2 “neutral,” the court observed that the algorithms were alleged to
3 make no distinction between “scam” and other locksmiths and that
4 the algorithms did not materially alter (i.e., they “hew[ed] to”) the
5 underlying information provided by the third parties. Id. at 1270 n.5,
6 1270–71.
7 Here, plaintiffs’ allegations about Facebook’s conduct do not
8 render it responsible for the Hamas‐related content. As an initial
9 matter, Facebook does not edit (or suggest edits) for the content that
10 its users—including Hamas—publish. That practice is consistent
11 with Facebook’s Terms of Service, which emphasize that a Facebook
12 user “own[s] all of the content and information [the user] post[s] on
13 Facebook, and [the user] can control how it is shared through [the
14 user’s] privacy and application settings.” App’x 252.
15 Nor does Facebook’s acquiring certain information from users
16 render it a developer for the purposes of Section 230. Facebook
46
1 requires users to provide only basic identifying information: their
2 names, telephone numbers, and email addresses. In so doing,
3 Facebook acts as a “neutral intermediary.” LeadClick, 838 F.3d at 174.
4 Moreover, plaintiffs concede in the pleadings that Facebook does not
5 publish that information, cf., e.g., Roommates.Com, 521 F.3d at 1172,
6 and so such content plainly has no bearing on plaintiffs’ claims.
7 Plaintiffs’ allegations likewise indicate that Facebook’s
8 algorithms are content “neutral” in the sense that the D.C. Circuit
9 used that term in Marshall’s Locksmith: The algorithms take the
10 information provided by Facebook users and “match” it to other
11 users—again, materially unaltered—based on objective factors
12 applicable to any content, whether it concerns soccer, Picasso, or
13 plumbers.24 Merely arranging and displaying others’ content to users
24We do not mean that Section 230 requires algorithms to treat all types of content
the same. To the contrary, Section 230 would plainly allow Facebook’s algorithms
to, for example, de‐promote or block content it deemed objectionable. We
emphasize only—assuming that such conduct could constitute “development” of
third‐party content—that plaintiffs do not plausibly allege that Facebook
augments terrorist‐supporting content primarily on the basis of its subject matter.
47
1 of Facebook through such algorithms—even if the content is not
2 actively sought by those users—is not enough to hold Facebook
3 responsible as the “develop[er]” or “creat[or]” of that content. See,
4 e.g., Marshall’s Locksmith, 925 F.3d at 1269–71; Roommates.Com,
5 521 F.3d at 1169–70.
6 Plaintiffs’ arguments to the contrary are unpersuasive. For one,
7 they point to the Ninth Circuit’s decision in Roommates.Com as
8 holding that requiring or encouraging users to provide any particular
9 information whatsoever to the interactive computer service
10 transforms a defendant into a developer of that information. The
11 Roommates.Com holding, however, was not so broad; it concluded
12 only that the site’s conduct in requiring users to select from “a limited
13 set of pre‐populated answers” to respond to particular
14 “discriminatory questions” had a content‐development effect that
15 was actionable in the context of the Fair Housing Act. See 521 F.3d at
16 1166. There is no comparable allegation here.
48
1 Plaintiffs also argue that Facebook develops Hamas’s content
2 because Facebook’s algorithms make that content more “visible,”
3 “available,” and “usable.” Appellants’ Br. at 45–46. But making
4 information more available is, again, an essential part of traditional
5 publishing; it does not amount to “developing” that information
6 within the meaning of Section 230. Similarly, plaintiffs assert that
7 Facebook’s algorithms suggest third‐party content to users “based on
8 what Facebook believes will cause the user to use Facebook as much
9 as possible” and that Facebook intends to “influence” consumers’
10 responses to that content. Appellants’ Br. 48. This does not describe
11 anything more than Facebook vigorously fulfilling its role as a
12 publisher. Plaintiffs’ suggestion that publishers must have no role in
13 organizing or distributing third‐party content in order to avoid
14 “develop[ing]” that content is both ungrounded in the text of Section
15 230 and contrary to its purpose.
49
1 Finally, we note that plaintiffs also argue that Facebook should
2 not be afforded Section 230 immunity because Facebook has chosen
3 to undertake efforts to eliminate objectionable and dangerous content
4 but has not been effective or consistent in those efforts. However,
5 again, one of the purposes of Section 230 was to ensure that interactive
6 computer services should not incur liability as developers or creators
7 of third‐party content merely because they undertake such efforts—
8 even if they are not completely effective.25
9 We therefore conclude from the allegations of plaintiffs’
10 complaint that Facebook did not “develop” the content of the
11 Facebook postings by Hamas and that Section 230(c)(1) applies to
12 Facebook’s alleged conduct in this case.
13 III. Whether Applying Section 230(c)(1) to Plaintiffs’ Claims
14 Would Impair the Enforcement of a Federal Criminal Statute
15
16 Plaintiffs also argue that Section 230(c)(1) may not be applied
25 See supra, Discussion, Part I.
50
1 to their claims because that would impermissibly “impair the
2 enforcement” of a “Federal criminal statute.” Appellant’s Br. at 52
3 (quoting 47 U.S.C. § 230(e)(1)). Section 230(e)(1), entitled, “No effect
4 on criminal law,” is one of the enumerated exceptions to the
5 application of Section 230(c)(1) immunity. It provides that “[n]othing
6 in . . . section [230] shall be construed to impair the enforcement of . . .
7 any [] Federal criminal statute.” 47 U.S.C. § 230(e)(1). Plaintiffs
8 observe that 18 U.S.C. §§ 2339A, 2339B, and 2339C, which criminalize
9 providing material support for terrorism, providing material support
10 for foreign terrorist organizations, and financing terrorism,
11 respectively, are federal criminal statutes. Plaintiffs argue that
12 preventing them from bringing an action under the statute providing
13 for “civil remedies” for individuals injured “by reason of an act of
14 international terrorism,” 18 U.S.C. § 2333(a), would “impair the
15 enforcement” of those criminal statutes within the meaning of
16 47 U.S.C. § 230(e)(1). In response, citing the First Circuit’s decision in
51
1 Backpage.com, 817 F.3d at 23–24, Facebook argues that Section 230(e)(1)
2 pertains only to criminal enforcement actions brought by a
3 prosecutor, not civil actions such as this.
4 We agree with the district court’s conclusion that Section
5 230(e)(1) is inapplicable in this civil action. Even accepting, arguendo,
6 plaintiffs’ assertion that a civil litigant could be said to “enforce” a
7 criminal statute through a separate civil remedies provision, any
8 purported ambiguity in Section 230(e)(1) is resolved by its title, “No
9 effect on criminal law.”26 “Criminal law” concerns “prosecuting and
10 punishing offenders” and is “contrasted with civil law,” which, as
11 here, concerns “private relations between individuals.” Criminal Law,
12 Civil Law, Oxford English Dictionary (3d ed. 2010). Furthermore, as
13 the First Circuit pointed out in Jane Doe No. 1 v. Backpage.com, LLC,
14 “where Congress wanted to include both civil and criminal remedies
26“[W]here the text is ambiguous, a statute’s titles can offer ‘a useful aid in
resolving [the] ambiguity.’” Lawson v. FMR LLC, 571 U.S. 429, 465 (2014) (quoting
FTC v. Mandel Bros., Inc., 359 U.S. 385, 388–89 (1959) (alterations in original)).
52
1 in CDA provisions, it did so through broader language.” 817 F.3d
2 at 23. Section 230(e)(4), for example, states that Section 230 “should
3 not ‘be construed to limit the application of the Electronic
4 Communications Privacy Act of 1986,’ a statute that contains both
5 criminal penalties and civil remedies.” Id. (first quoting 18 U.S.C.
6 § 230(e)(4), then citing 18 U.S.C. §§ 2511, 2520). In light of the
7 presumption that the use of “different words within the same
8 statutory scheme is deliberate,” the fact that Congress’s word choice
9 in “[p]reserving the ‘application’ of this Act” is distinct from its
10 “significantly narrower word choice in safeguarding the
11 ‘enforcement’ of federal criminal statutes” counsels against the broad
12 reading of Section 230(e)(1) urged by plaintiffs. Id. (citing Sosa v.
13 Alvarez‐Machain, 542 U.S. 692, 711 n.9 (2004)).27 We therefore join the
27We do not here decide whether the word “enforcing” in a different provision,
Section 230(e)(3), necessarily has the same meaning as “enforcement” in Section
230(e)(1), given their different linguistic contexts. See 47 U.S.C. § 230(e)(3)
(“Nothing in this section shall be construed to prevent any State from enforcing
any State law that is consistent with this section.”); Beharry v. Ashcroft, 329 F.3d 51,
61 (2d Cir. 2003) (Sotomayor, J.) (“Usually identical words in different sections
53
1 First Circuit in concluding that Section 230(e)(1) is “quite clearly . . .
2 limited to criminal prosecutions.” Backpage.com, 817 F.3d at 23.
3 Accordingly, Section 230(e)(1) provides no obstacle to the application
4 of Section 230(c)(1) in this case.
5 IV. Whether the Anti‐Terrorism Act’s Civil Remedies Provision,
6 18 U.S.C. § 2333, Implicitly Narrowed or Repealed Section
7 230(c)(1)
8
9 Plaintiffs also argue that the ATA’s civil remedies provision,
10 18 U.S.C. § 2333, irreconcilably conflicts with Section 230 and
11 impliedly repealed it when Congress amended Section 2333 by
12 adopting the Justice Against Sponsors of Terrorism Act (“JASTA”) in
13 2016. JASTA, among other things, added civil liability for aiding and
14 abetting and civil conspiracy to Section 2333, with a stated purpose of
15 “provid[ing] civil litigants with the broadest possible basis . . . to seek
16 relief” against material supporters of terrorism. Pub. L. 114–222,
mean identical things, but not invariably. All depends on context.” (citation
omitted)).
54
1 § 2(b), 130 Stat. 852, 853 (2016).
2 “[R]epeals by implication are not favored and will not be
3 presumed unless the intention of the legislature to repeal is clear and
4 manifest.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
5 662 (2007) (citation, internal quotation marks, and alterations
6 omitted). In other words, “[a]n implied repeal will only be found
7 where provisions in two statutes are in irreconcilable conflict, or
8 where the latter Act covers the whole subject of the earlier one and is
9 clearly intended as a substitute.” Branch v. Smith, 538 U.S. 254, 273
10 (2003) (citation and internal quotation marks omitted). Here, there is
11 no irreconcilable conflict between the statutes. Section 230 provides
12 an affirmative defense to liability under Section 2333 for only the
13 narrow set of defendants and conduct to which Section 230 applies.
14 JASTA merely expanded Section 2333’s cause of action to secondary
15 liability; it provides no obstacle—explicit or implicit—to applying
16 Section 230.
55
1 V. Whether Applying Section 230(c)(1) to Plaintiffs’ Claims
2 Would Be Impermissibly Extraterritorial
3
4 Plaintiffs also argue that the presumption against the
5 extraterritorial application of federal statutes bars applying Section
6 230(c)(1) to their claims because Hamas posted content and
7 conducted the attacks from overseas, and because Facebook’s
8 employees who failed to take down Hamas’s content were allegedly
9 located outside the United States, in Facebook’s foreign facilities. In
10 response, Facebook contends that Section 230(c)(1) merely limits civil
11 liability in American courts, a purely domestic application.
12 Under the canon of statutory interpretation known as the
13 “presumption against extraterritoriality,” “[a]bsent clearly expressed
14 congressional intent to the contrary, federal laws will be construed to
15 have only domestic application.”
16 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). The
17 Supreme Court has instructed courts to apply “a two‐step framework
18 for analyzing extraterritoriality issues.” Id. at 2101. “At the first step,
56
1 we ask whether the presumption against extraterritoriality has been
2 rebutted—that is, whether the statute gives a clear, affirmative
3 indication that it applies extraterritorially.” Id.
4 If the statute is not extraterritorial on its face, then “at the
5 second step we determine whether the case involves a domestic
6 application of the statute, and we do this by looking to the statute’s
7 ‘focus.’” Id. “The focus of a statute is the object of its solicitude, which
8 can include the conduct it seeks to regulate, as well as the parties and
9 interests it seeks to protect or vindicate.” WesternGeco LLC v. ION
10 Geophysical Corp., 138 S. Ct. 2129, 2137 (2018) (citation, internal
11 quotation marks, and alterations omitted). “If the conduct relevant to
12 the statute’s focus occurred in the United States, then the case
13 involves a permissible domestic application even if other conduct
14 occurred abroad . . . .” RJR Nabisco, 136 S. Ct. at 2101. “[B]ut if the
15 conduct relevant to the focus occurred in a foreign country, then the
57
1 case involves an impermissible extraterritorial application regardless
2 of any other conduct that occurred in U.S. territory.” Id.
3 The two‐step framework arguably does not easily apply to a
4 statutory provision that affords an affirmative defense to civil
5 liability. Indeed, it is unclear how an American court could apply
6 such a provision “extraterritorially.” Even if it could be applied
7 extraterritorially—say, by somehow treating the defendant’s conduct
8 rather than the lawsuit itself as the “focus” of a liability‐limiting
9 provision—the presumption against extraterritoriality primarily
10 “serves to avoid the international discord that can result when U.S.
11 law is applied to conduct in foreign countries.” Id. at 2100. Allowing
12 a plaintiff’s claim to go forward because the cause of action applies
13 extraterritorially, while then applying the presumption to block a
14 different provision setting out defenses to that claim, would seem
15 only to increase the possibility of international friction. Such a regime
16 could also give plaintiffs an advantage when they sue over
58
1 extraterritorial wrongdoing that they would not receive if the
2 defendant’s conduct occurred domestically. It is doubtful that
3 Congress ever intends such a result when it writes provisions limiting
4 civil liability.
5 The Ninth Circuit addressed this issue in Blazevska v. Raytheon
6 Aircraft Co., 522 F.3d 948 (9th Cir. 2008), which was decided prior to
7 the Supreme Court’s adoption of the two‐step extraterritoriality
8 framework. The plaintiffs in Blazevska argued that the General
9 Aviation Revitalization Act’s (“GARA”) statute of repose could not
10 limit the defendant’s liability because, like here, certain events related
11 to plaintiffs’ claims occurred overseas. Id. at 950. The Ninth Circuit
12 disagreed, holding that the presumption against extraterritoriality
13 was inapplicable to a liability‐limiting statute. It found that GARA
14 did not “impermissibly regulate conduct that has occurred abroad,”
15 and instead,
16 merely eliminates the power of any party to bring a suit
17 for damages against a general aviation aircraft
59
1 manufacturer, in a U.S. federal or state court, after the
2 limitation period. The only conduct it could arguably be
3 said to regulate is the ability of a party to initiate an
4 action for damages against a manufacturer in American
5 courts—an entirely domestic endeavor. Congress has no
6 power to tell courts of foreign countries whether they
7 could entertain a suit against an American defendant.
8
9 Id. at 953. “Accordingly,” the Ninth Circuit held, “the presumption
10 against extraterritoriality simply is not implicated by GARA’s
11 application.” Id.
12 The Supreme Court has left open the question of whether
13 certain types of statutes might not be subject to the presumption
14 against extraterritoriality. See WesternGeco, 138 S. Ct. at 2136 (noting,
15 without deciding, the question whether “the presumption against
16 extraterritoriality should never apply to statutes . . . that merely
17 provide a general damages remedy for conduct that Congress has
18 declared unlawful”). However, we need not decide here whether the
19 presumption against extraterritoriality is “simply . . . not
20 implicated,”Blazevska, 522 F.3d at 953, by statutes that merely limit
60
1 civil liability, or whether the two‐step RJR Nabisco framework must
2 be applied, because that framework is workable in this context and
3 compels the same result. At step two, we conclude from the text of
4 Section 230, particularly the words “shall be treated,” that its primary
5 purpose is limiting civil liability in American courts.28 The regulated
6 conduct—the litigation of civil claims in federal courts—occurs
7 entirely domestically in its application here. We thus hold that the
8 presumption against extraterritoriality is no barrier to the application
9 of Section 230(c)(1) in this case.29
10 VI. Foreign Law Claims
11 Turning next to plaintiffs’ foreign tort claims, the parties
12 disagree as to the reach of Section 230 immunity. The district court
28 Although “a finding of extraterritoriality at step one will obviate step two’s
‘focus’ inquiry,” courts may instead “start[] at step two in appropriate cases.” RJR
Nabisco, 136 S. Ct. at 2101 n.5.
29Because we conclude that the affirmative defense of Section 230(c)(1) applies, we
need not reach Facebook’s alternative argument that plaintiffs’ complaint does not
plausibly allege that, absent such immunity, Facebook assisted Hamas under the
federal antiterrorism claims.
61
1 held that Section 230 applies to foreign law claims brought in United
2 States courts, but it did not address the basis for its exercise of subject
3 matter jurisdiction over those claims. Before we can reach the merits
4 of those causes of action, including the applicability of Section 230, we
5 must independently ensure the basis for federal subject matter
6 jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
7 Plaintiffs allege that, under 28 U.S.C. § 1332(a)(2), we have
8 diversity jurisdiction over their foreign law claims purportedly
9 brought between “citizens of a State and citizens or subjects of a
10 foreign state.” It is well established, however, that “United States
11 citizens who are domiciled abroad are neither citizens of any state of
12 the United States nor citizens or subjects of a foreign state, and
13 § 1332(a) does not provide that the courts have jurisdiction over a suit
14 to which such persons are parties.” Cresswell v. Sullivan & Cromwell,
15 922 F.2d 60, 68 (2d Cir. 1990). In other words, “a suit by or against
16 United States citizens domiciled abroad may not be premised on
62
1 diversity.” Id.; see also Newman‐Green, Inc. v. Alfonzo‐Larrain, 490 U.S.
2 826, 829 (1989) (stating that “stateless” United States citizens may not
3 be parties to diversity‐based suits).
4 Here, a substantial majority of the plaintiffs are alleged to be
5 United States citizens domiciled in Israel.30 A suit based on diversity
6 jurisdiction may not proceed with these plaintiffs as parties.
7 In addition, “[i]t is well established that for a case to come
8 within [§ 1332] there must be complete diversity,” Cresswell, 922 F.2d
9 at 68, and the complaint must set forth the citizenship of the parties,
10 Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47
11 (2d Cir. 1996). Plaintiffs’ complaint fails to allege the state citizenship,
12 if any, of U.S.‐citizen plaintiffs Taylor Force, Kristin Ann Force,
13 Yaakov Naftali Fraenkel, Chaya Zissel Braun, Richard Lakin, or the
14 minor‐children plaintiffs S.S.R., M.M.R., R.M.R. and S.Z.R. We thus
15 cannot determine on the present record whether those plaintiffs are
30A representative of a decedent’s estate is “deemed to be a citizen only of the
same State as the decedent.” 28 U.S.C. § 1332(c)(2).
63
1 of diverse citizenship from Facebook. Indeed, only two plaintiffs—
2 Stuart Force and Robbi Force—are alleged to be of diverse citizenship
3 to Facebook.
4 The joinder of Israel‐domiciled U.S.‐citizen plaintiffs requires
5 us either to dismiss the diversity‐based claims altogether, or exercise
6 our discretion to: 1) dismiss those plaintiffs who we determine are
7 “dispensable jurisdictional spoilers;” or 2) vacate in part the judgment
8 of the district court and remand for it to make that indispensability
9 determination and to determine whether dismissal of those
10 individuals would be appropriate. SCS Commcʹns, Inc. v. Herrick Co.,
11 360 F.3d 329, 335 (2d Cir. 2004). As for the plaintiffs for whom no state
12 citizenship is alleged, we have discretionary authority to accept
13 submissions for the purpose of amending the complaint on appeal, or
14 we could remand for amendment. See Leveraged Leasing, 87 F.3d at 47
15 (“Defective allegations of jurisdiction may be amended, upon terms,
16 in the trial or appellate courts.” (quoting 28 U.S.C. § 1653)).
64
1 We decline to exercise our discretion to attempt to remedy
2 these jurisdictional defects. This is not a case in which a small number
3 of nondiverse parties defeats jurisdiction, but rather one in which—
4 after multiple complaints have been submitted—most of the plaintiffs
5 are improperly joined. Moreover, the case remains at the pleading
6 stage, with discovery not yet having begun. Proceeding with the few
7 diverse plaintiffs would be inefficient given the expenditure of
8 judicial and party resources that would be required to address the
9 jurisdictional defects. The most appropriate course is for any diverse
10 plaintiffs to bring a new action and demonstrate subject matter
11 jurisdiction in that action. 31 Accordingly, plaintiffs’ foreign law
31Plaintiffs do not assert supplemental jurisdiction under 28 U.S.C. § 1367. All
claims over which we have original jurisdiction are dismissed at the pleading
stage, see id. § 1367(c)(3), and, by plaintiffs’ own argument, some of the foreign
claims “differ[] markedly from American concepts of . . . liability,” Appellants’ Br.
59; see id. § 1367(c)(1). Therefore, even assuming that plaintiffs’ foreign law claims
form “part of the same case or controversy” as their federal claims, 28 U.S.C.
§ 1367(a), we decline to exercise supplemental jurisdiction here.
65
1 claims are dismissed, without prejudice.32
2 CONCLUSION
3 For the foregoing reasons, we AFFIRM the judgment of the
4 district court as to plaintiffs’ federal claims and DISMISS plaintiffs’
5 foreign law claims.
32Because plaintiffs’ foreign law claims are dismissed on jurisdictional grounds,
we express no opinion as to the district court’s conclusion that Section 230 applies
to foreign law claims brought in United States courts.
66
KATZMANN, Chief Judge, concurring in part and dissenting in part:
I agree with much of the reasoning in the excellent majority opinion, and I
join that opinion except for Parts I and II of the Discussion. But I must respectfully
part company with the majority on its treatment of Facebook’s friend‐ and content‐
suggestion algorithms under the Communications Decency Act (“CDA”).1
1 I agree with the majority that the CDA’s exception for enforcement of criminal
laws, 47 U.S.C. § 230(e)(1), does not apply to plaintiffs’ claims, see ante, at 50‐54. However,
I find the question to be somewhat closer than the majority does, in part because some of
the statutes enumerated in § 230(e)(1) themselves contain civil remedies. Section 230(e)(1)
states that “[n]othing 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.” One of those
enumerated chapters—Chapter 110 of Title 18—includes a civil suit provision for victims
of specific child sex crimes. See 18 U.S.C. § 2255. Meanwhile, 47 U.S.C. § 223—which
prohibits obscene or harassing phone calls—specifies that civil fines may be levied
“pursuant to civil action by,” or “after appropriate administrative proceedings” of, the
Federal Communications Commission (“FCC”), and it authorizes the Attorney General
to bring civil suits to enjoin practices that violate the statute. 47 U.S.C. § 223(b)(5)(B)‐
(b)(6). If § 230(e)(1) covers “enforcement” of the listed chapters in their entirety, it is
difficult to see how it would not cover other provisions that authorize civil suits for
violations of criminal laws, particularly given that the enumerated list is followed by “or
any other criminal law.”
However, as detailed post, § 230 was designed as a private‐sector‐driven
alternative to a Senate plan that would allow the FCC “either civilly or criminally, to
punish people” who put objectionable material on the Internet. 141 Cong. Rec. 22,045
(1995) (statement of Rep. Cox); accord id. at 22,045‐46 (statement of Rep. Wyden); see Reno
v. ACLU, 521 U.S. 844, 859 & n.24 (1997). On the House floor, author Christopher Cox
disparaged the idea of FCC enforcement and then stated: “Certainly, criminal
enforcement of our obscenity laws as an adjunct is a useful way of punishing the truly
1
As to the reasons for my disagreement, consider a hypothetical. Suppose
that you are a published author. One day, an acquaintance calls. “I’ve been reading
over everything you’ve ever published,” he informs you. “I’ve also been looking
at everything you’ve ever said on the Internet. I’ve done the same for this other
author. You two have very similar interests; I think you’d get along.” The
acquaintance then gives you the other author’s contact information and photo,
along with a link to all her published works. He calls back three more times over
the next week with more names of writers you should get to know.
Now, you might say your acquaintance fancies himself a matchmaker. But
would you say he’s acting as the publisher of the other authors’ work?
Facebook and the majority would have us answer this question “yes.” I,
however, cannot do so. For the scenario I have just described is little different from
how Facebook’s algorithms allegedly work. And while those algorithms do end
up showing users profile, group, or event pages written by other users, it strains
guilty.” 141 Cong. Rec. 22,045 (emphasis added). This history, along with the provision’s
title, strongly suggests that § 230(e)(1) was intended as a narrow criminal‐law exception.
It would be odd, then, to read § 230(e)(1) as allowing for civil enforcement by, among
others, the FCC, even if only in aid of criminal law enforcement.
2
the English language to say that in targeting and recommending these writings to
users—and thereby forging connections, developing new social networks—
Facebook is acting as “the publisher of . . . information provided by another
information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added).
It would be one thing if congressional intent compelled us to adopt the
majority’s reading. It does not. Instead, we today extend a provision that was
designed to encourage computer service providers to shield minors from obscene
material so that it now immunizes those same providers for allegedly connecting
terrorists to one another. Neither the impetus for nor the text of § 230(c)(1) requires
such a result. When a plaintiff brings a claim that is based not on the content of the
information shown but rather on the connections Facebook’s algorithms make
between individuals, the CDA does not and should not bar relief.
The Anti‐Terrorism Act (“ATA”) claims in this case fit this bill. According
to plaintiffs’ Proposed Second Amended Complaint (“PSAC”)—which we must
take as true at this early stage—Facebook has developed “sophisticated
algorithm[s]” for bringing its users together. App’x 347 ¶ 622. After collecting
mountains of data about each user’s activity on and off its platform, Facebook
3
unleashes its algorithms to generate friend, group, and event suggestions based
on what it perceives to be the user’s interests. Id. at 345‐46 ¶¶ 608‐14. If a user posts
about a Hamas attack or searches for information about a Hamas leader, Facebook
may “suggest” that that user become friends with Hamas terrorists on Facebook
or join Hamas‐related Facebook groups. By “facilitat[ing] [Hamas’s] ability to
reach and engage an audience it could not otherwise reach as effectively,”
plaintiffs allege that Facebook’s algorithms provide material support and
personnel to terrorists. Id. at 347 ¶ 622; see id. at 352‐58 ¶¶ 646‐77. As applied to the
algorithms, plaintiffs’ claims do not seek to punish Facebook for the content others
post, for deciding whether to publish third parties’ content, or for editing (or
failing to edit) others’ content before publishing it. In short, they do not rely on
treating Facebook as “the publisher” of others’ information. Instead, they would
hold Facebook liable for its affirmative role in bringing terrorists together.
When it comes to Facebook’s algorithms, then, plaintiffs’ causes of action do
not run afoul of the CDA. Because the court below did not pass on the merits of
the ATA claims pressed below, I would send this case back to the district court to
decide the merits in the first instance. The majority, however, cuts off all possibility
4
for relief based on algorithms like Facebook’s, even if these or future plaintiffs
could prove a sufficient nexus between those algorithms and their injuries. In light
of today’s decision and other judicial interpretations of the statute that have
generally immunized social media companies—and especially in light of the new
reality that has evolved since the CDA’s passage—Congress may wish to revisit
the CDA to better calibrate the circumstances where such immunization is
appropriate and inappropriate in light of congressional purposes.
I.
To see how far we have strayed from the path on which Congress set us out,
we must consider where that path began. What is now 47 U.S.C. § 230 was added
as an amendment to the Telecommunications Act of 1996, a statute designed to
deregulate and encourage innovation in the telecommunications industry. Pub. L.
104‐104, § 509, 110 Stat. 56, 56, 137‐39; see Reno, 521 U.S. at 857. Congress devoted
much committee attention to traditional telephone and broadcast media; by
contrast, the Internet was an afterthought, addressed only through floor
amendments or in conference. Reno, 521 U.S. at 857‐58. Of the myriad issues the
emerging Internet implicated, Congress tackled only one: the ease with which the
5
Internet delivers indecent or offensive material, especially to minors. See
Telecommunications Act of 1996, tit. V, subtit. A, 110 Stat. at 133‐39. And § 230
provided one of two alternative ways of handling this problem.
The action began in the Senate. Senator James J. Exon introduced the CDA
on February 1, 1995. See 141 Cong. Rec. 3,203. He presented a revised bill on June
9, 1995, “[t]he heart and the soul” of which was “its protection for families and
children.” Id. at 15,503 (statement of Sen. Exon). The Exon Amendment sought to
reduce the proliferation of pornography and other obscene material online by
subjecting to civil and criminal penalties those who use interactive computer
services to make, solicit, or transmit offensive material. Id. at 15,505.
The House of Representatives had the same goal—to protect children from
inappropriate online material—but a very different sense of how to achieve it.
Congressmen Christopher Cox (R‐California) and Ron Wyden (D‐Oregon)
introduced an amendment to the Telecommunications Act, entitled “Online
Family Empowerment,” about two months after the revised CDA appeared in the
Senate. See id. at 22,044. Making the argument for their amendment during the
House floor debate, Congressman Cox stated:
6
We want to make sure that everyone in America has an open
invitation and feels welcome to participate in the Internet. But as you
know, there is some reason for people to be wary because, as a Time
Magazine cover story recently highlighted, there is in this vast world
of computer information, a literal computer library, some offensive
material, some things in the bookstore, if you will, that our children
ought not to see.
As the parent of two, I want to make sure that my children have access
to this future and that I do not have to worry about what they might
be running into on line. I would like to keep that out of my house and
off my computer.
Id. at 22,044‐45. Likewise, Congressman Wyden said: “We are all against smut and
pornography, and, as the parents of two small computer‐literate children, my wife
and I have seen our kids find their way into these chat rooms that make their
middle‐aged parents cringe.” Id. at 22,045.
As both sponsors noted, the debate between the House and the Senate was
not over the CDA’s primary purpose but rather over the best means to that shared
end. See id. (statement of Rep. Cox) (“How should we do this? . . . Mr. Chairman,
what we want are results. We want to make sure we do something that actually
works.”); id. (statement of Rep. Wyden) (“So let us all stipulate right at the outset
the importance of protecting our kids and going to the issue of the best way to do
it.”). While the Exon Amendment would have the FCC regulate online obscene
7
materials, the sponsors of the House proposal “believe[d] that parents and families
are better suited to guard the portals of cyberspace and protect our children than
our Government bureaucrats.” Id. at 22,045 (statement of Rep. Wyden). They also
feared the effects the Senate’s approach might have on the Internet itself. See id.
(statement of Rep. Cox) (“[The amendment] will establish as the policy of the
United States that we do not wish to have content regulation by the Federal
Government of what is on the Internet, that we do not wish to have a Federal
Computer Commission with an army of bureaucrats regulating the Internet . . . .”).
The Cox‐Wyden Amendment therefore sought to empower interactive computer
service providers to self‐regulate, and to provide tools for parents to regulate,
children’s access to inappropriate material. See S. Rep. No. 104‐230, at 194 (1996)
(Conf. Rep.); 141 Cong. Rec. 22,045 (statement of Rep. Cox).
There was only one problem with this approach, as the House sponsors saw
it. A New York State trial court had recently ruled that the online service Prodigy,
by deciding to remove certain indecent material from its site, had become a
“publisher” and thus was liable for defamation when it failed to remove other
objectionable content. Stratton‐Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710,
8
at *4 (N.Y. Sup. Ct. May 24, 1995) (unpublished). The authors of § 230 saw the
Stratton‐Oakmont decision as indicative of a “legal system [that] provides a massive
disincentive for the people who might best help us control the Internet to do so.”
141 Cong. Rec. 22,045 (statement of Rep. Cox). Cox‐Wyden was designed, in large
part, to remove that disincentive. See S. Rep. No. 104‐230, at 194.
The House having passed the Cox‐Wyden Amendment and the Senate the
Exon Amendment, the conference committee had before it two alternative visions
for countering the spread of indecent online material to minors. The committee
chose not to choose. Congress instead adopted both amendments as part of a final
Communications Decency Act. See Telecommunications Act of 1996, §§ 502, 509,
110 Stat. at 133‐39; Reno, 521 U.S. at 858 n.24.2 The Supreme Court promptly struck
down two major provisions of the Exon Amendment as unconstitutionally
2 It helped that the Cox‐Wyden Amendment exempted from its deregulatory
regime the very provisions that the Exon Amendment strengthened, see
Telecommunications Act of 1996, §§ 502, 507‐508, 509(d)(1), 110 Stat. at 133‐39, and that
Congress stripped from the House bill a provision that would have denied jurisdiction
to the FCC to regulate the Internet, compare id. § 509, 110 Stat. at 138 (eliminating original
§ 509(d)), with 141 Cong. Rec. 22,044 (including original § 509(d)).
9
overbroad under the First Amendment, leaving the new § 230 as the dominant
force for securing decency on the Internet. See Reno, 521 U.S. at 849.
Section 230 overruled Stratton‐Oakmont through two interlocking
provisions, both of which survived the legislative process unscathed. The first,
which is at issue in this case, 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). The
second provision eliminates liability for interactive computer service providers
and users for “any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be . . . objectionable,”
or “any action taken to enable or make available to . . . others the technical means
to restrict access to [objectionable] material.” Id. § 230(c)(2). These two subsections
tackle, in overlapping fashion, the two jurisprudential moves of the Stratton‐
Oakmont court: first, that Prodigy’s decision to screen posts for offensiveness
rendered it “a publisher rather than a distributor,” 1995 WL 323710, at *4; and
second, that by making good‐faith efforts to remove offensive material Prodigy
became liable for any actionable material it did not remove.
10
The legislative history illustrates that in passing § 230 Congress was focused
squarely on protecting minors from offensive online material, and that it sought
to do so by “empowering parents to determine the content of communications
their children receive through interactive computer services.” S. Rep. No. 104‐230,
at 194. The “policy” section of § 230’s text reflects this goal. See 47 U.S.C.
§ 230(b)(3)‐(4).3 It is not surprising, then, that Congress emphasized the narrow
civil liability shield that became § 230(c)(2), rather than the broad rule of
construction laid out in § 230(c)(1). Indeed, the conference committee summarized
§ 230 by stating that it “provides ‘Good Samaritan’ protections from civil liability
for providers or users of an interactive computer service for actions to restrict or
3 The policy section of the statute also expresses Congress’s desire “to preserve the
vibrant and competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C.
§ 230(b)(2). It is therefore true that “Section 230 was enacted, in part, to maintain the
robust nature of Internet communication.” Ricci v. Teamsters Union Local 456, 781 F.3d 25,
28 (emphasis added) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997));
see ante, at 24. As the legislative history laid out in this opinion shows, however, one
cannot fully understand the purpose of § 230 without considering that it was one
chamber’s proposal in a disagreement between the two houses of Congress over how best
to shield children from indecent material, and that in that contest the House was
principally concerned with two things: (1) overruling Stratton‐Oakmont and
(2) preventing “a Federal Computer Commission with an army of bureaucrats regulating
the Internet.” 141 Cong. Rec. 22,045 (statement of Rep. Cox).
11
to enable restriction of access to objectionable online material”—a description that
could just as easily have applied to § 230(c)(2) alone. S. Rep. No. 104‐230, at 194.
Congress also titled the entirety of § 230(c) “Protection for ‘Good Samaritan’
blocking and screening of offensive material,” suggesting that the definitional rule
outlined in § 230(c)(1) may have been envisioned as supporting or working in
tandem with the civil liability shield in § 230(c)(2).
None of this is to say that § 230(c)(1) exempts interactive computer service
providers from publisher treatment only when they remove indecent content.
Statutory text cannot be ignored, and Congress grabbed a bazooka to swat the
Stratton‐Oakmont fly. Whatever prototypical situation its drafters may have had in
mind, § 230(c)(1) does not limit its protection to situations involving “obscene
material” provided by others, instead using the expansive word “information.”4
4 This point—that Congress chose broader language than may have been necessary
to accomplish its primary goal—should not be confused with the Seventh Circuit’s
rationale for § 230(c)(1)’s general application: that “a law’s scope often differs from its
genesis.” See Chi. Lawyers Cmte. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d
666, 671 (7th Cir. 2008). True as this axiom might be, it does not apply here—the language
of § 230(c)(1) remained untouched from introduction to passage. Nor is there any
evidence from the legislative record that interest groups altered the statutory language.
But cf. id. (“Once the legislative process gets rolling, interest groups seek (and often
obtain) other provisions.”). That § 230(c)(1)’s breadth flowed from Congress’s desire to
12
Illuminating Congress’s original intent does, however, underscore the extent of
§ 230(c)(1)’s subsequent mission creep. Given how far both Facebook’s suggestion
algorithms and plaintiffs’ terrorism claims swim from the shore of congressional
purpose, caution is warranted before courts extend the CDA’s reach any further.
II.
With the CDA’s background in mind, I turn to the text. By its plain terms,
§ 230 does not apply whenever a claim would treat the defendant as “a publisher”
in the abstract, immunizing defendants from liability stemming from any activity
in which one thinks publishing companies commonly engage. Contra ante, at 30‐
31, 33‐34, 49. It states, more specifically, 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) (emphases
added). “Here grammar and usage establish that ‘the’ is a function word
indicating that a following noun or noun equivalent is definite . . . .” Nielsen v.
Preap, 139 S. Ct. 954, 965 (2019) (citation and internal quotation marks omitted).
overrule Stratton‐Oakmont, rather than from mere interest group protectionism, matters.
13
The word “publisher” in this statute is thus inextricably linked to the “information
provided by another.” The question is whether a plaintiff’s claim arises from a
third party’s information, and—crucially—whether to establish the claim the court
must necessarily view the defendant, not as a publisher in the abstract, but rather
as the publisher of that third‐party information. See FTC v. LeadClick Media, LLC,
838 F.3d 158, 175 (2d Cir. 2016) (stating inquiry as “whether the cause of action
inherently requires the court to treat the defendant as the ‘publisher or speaker’ of
content provided by another”).
For this reason, § 230(c)(1) does not necessarily immunize defendants from
claims based on promoting content or selling advertising, even if those activities
might be common among publishing companies nowadays. A publisher might
write an email promoting a third‐party event to its readers, for example, but the
publisher would be the author of the underlying content and therefore not
immune from suit based on that promotion. See 47 U.S.C. § 230(c)(1), (f)(3).
Similarly, the fact that publishers may sell advertising based on user data does not
immunize the publisher if someone brings a claim based on the publisher’s selling
of the data, because the claim would not treat the defendant as the publisher of a
14
third party’s content. Cf. Oberdorf v. Amazon.com Inc., No. 18‐1041, 2019 WL
2849153, at *12 (3d Cir. July 3, 2019) (holding that the CDA does not bar claims
against Amazon.com “to the extent that” they “rely on Amazon’s role as an actor
in the sales process,” including both “selling” and “marketing”). Section 230(c)(1)
limits liability based on the function the defendant performs, not its identity.
Accordingly, our precedent does not grant publishers CDA immunity for
the full range of activities in which they might engage. Rather, it “bars lawsuits
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” provided by another for publication. LeadClick, 838 F.3d at 174
(citation and internal quotation marks omitted); accord Oberdorf, 2019 WL 2849153,
at *10; Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016); Jones v.
Dirty World Entm’t Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014); Barnes v.
Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009); Zeran, 129 F.3d at 330; see Klayman
v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014); Ben Ezra, Weinstein, & Co., Inc. v.
Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000). For instance, a claim against a
newspaper based on the content of a classified ad (or the decision to publish or
15
withdraw that ad) would fail under the CDA not because newspapers traditionally
publish classified ads, but rather because such a claim would necessarily treat the
newspaper as the publisher of the ad‐maker’s content. Similarly, the newspaper
does not act as an “information content provider”—and thus maintains its CDA
protection—when it decides to run a classified ad because it neither “creates” nor
“develops” the information in the ad. 47 U.S.C. § 230(f)(3).
This case is different. Looking beyond Facebook’s “broad statements of
immunity” and relying “rather on a careful exegesis of the statutory language,”
Barnes, 570 F.3d at 1100, the CDA does not protect Facebook’s friend‐ and content‐
suggestion algorithms. A combination of two factors, in my view, confirms that
claims based on these algorithms do not inherently treat Facebook as the publisher
of third‐party content.5 First, Facebook uses the algorithms to create and
communicate its own message: that it thinks you, the reader—you, specifically—
will like this content. And second, Facebook’s suggestions contribute to the
5 Many of Facebook’s algorithms mentioned in the PSAC, such as its third‐party
advertising algorithm, its algorithm that places content in a user’s newsfeed, and (based
on the limited description in the PSAC) its video recommendation algorithm, remain
immune under the analysis I set out here.
16
creation of real‐world social networks. The result of at least some suggestions is
not just that the user consumes a third party’s content. Sometimes, Facebook’s
suggestions allegedly lead the user to become part of a unique global community,
the creation and maintenance of which goes far beyond and differs in kind from
traditional editorial functions.
It is true, as the majority notes, see ante, at 47, that Facebook’s algorithms
rely on and display users’ content. However, this is not enough to trigger the
protections of § 230(c)(1). The CDA does not mandate “a ‘but‐for’ test that would
provide immunity . . . solely because a cause of action would not otherwise have
accrued but for the third‐party content.” HomeAway.com, Inc. v. City of Santa
Monica, 918 F.3d 676, 682 (9th Cir. 2019). Rather, to fall within § 230(c)(1)’s radius,
the claim at issue must inherently fault the defendant’s activity as the publisher of
specific third‐party content. Plaintiffs’ claims about Facebook’s suggestion
algorithms do not do this. The complaint alleges that “Facebook collects detailed
information about its users, including, inter alia, the content they post, type of
content they view or engage with, people they communicate with, groups they
belong to and how they interact with such groups, visits to third party websites,
17
apps and Facebook partners.” App’x 345 ¶ 608. Then the algorithms “utilize the
collected data to suggest friends, groups, products, services and local events, and
target ads” based on each user’s input. Id. at 346 ¶ 610.
If a third party got access to Facebook users’ data, analyzed it using a
proprietary algorithm, and sent its own messages to Facebook users suggesting
that people become friends or attend one another’s events, the third party would
not be protected as “the publisher” of the users’ information. Similarly, if Facebook
were to use the algorithms to target its own material to particular users, such that
the resulting posts consisted of “information provided by” Facebook rather than
by “another information content provider,” § 230(c)(1), Facebook clearly would
not be immune for that independent message.
Yet that is ultimately what plaintiffs allege Facebook is doing. The PSAC
alleges that Facebook “actively provides ‘friend suggestions’ between users who
have expressed similar interests,” and that it “actively suggests groups and events
to users.” App’x 346 ¶¶ 612‐13. Facebook’s algorithms thus allegedly provide the
user with a message from Facebook. Facebook is telling users—perhaps implicitly,
but clearly—that they would like these people, groups, or events. In this respect,
18
Facebook “does not merely provide a framework that could be utilized for proper
or improper purposes; rather, [Facebook’s] work in developing” the algorithm and
suggesting connections to users based on their prior activity on Facebook,
including their shared interest in terrorism, “is directly related to the alleged
illegality of the site.” Fair Housing Council of San Fernando Valley v. Roommates.Com,
LLC, 521 F.3d 1157, 1171 (9th Cir. 2008) (en banc). The fact that Facebook also
publishes third‐party content should not cause us to conflate its two separate roles
with respect to its users and their information. Facebook may be immune under
the CDA from plaintiffs’ challenge to its allowance of Hamas accounts, since
Facebook acts solely as the publisher of the Hamas users’ content. That does not
mean, though, that it is also immune when it conducts statistical analyses of that
information and delivers a message based on those analyses.
Moreover, in part through its use of friend, group, and event suggestions,
Facebook is doing more than just publishing content: it is proactively creating
networks of people. Its algorithms forge real‐world (if digital) connections through
friend and group suggestions, and they attempt to create similar connections in
the physical world through event suggestions. The cumulative effect of
19
recommending several friends, or several groups or events, has an impact greater
than the sum of each suggestion. It envelops the user, immersing her in an entire
universe filled with people, ideas, and events she may never have discovered on
her own. According to the allegations in the complaint, Facebook designed its
website for this very purpose. “Facebook has described itself as a provider of
products and services that enable users . . . to find and connect with other users
. . . .” App’x 250 ¶ 129. CEO Mark Zuckerberg has similarly described Facebook as
“build[ing] tools to help people connect with the people they want,” thereby
“extending people’s capacity to build and maintain relationships.” Id. at 251 ¶ 132.
Of course, Facebook is not the only company that tries to bring people together
this way, and perhaps other publishers try to introduce their readers to one
another. Yet the creation of social networks goes far beyond the traditional
editorial functions that the CDA immunizes.
Another way to consider the CDA immunity question is to “look . . . to what
the duty at issue actually requires: specifically, whether the duty would
necessarily require an internet company to monitor[, alter, or remove] third‐party
content.” HomeAway.com, 918 F.3d at 682. Here, too, the claims regarding the
20
algorithms are a poor fit for statutory immunity. The duty not to provide material
support to terrorism, as applied to Facebook’s use of the algorithms, simply
requires that Facebook not actively use that material to determine which of its
users to connect to each other. It could stop using the algorithms altogether, for
instance. Or, short of that, Facebook could modify its algorithms to stop them
introducing terrorists to one another. None of this would change any underlying
content, nor would it necessarily require courts to assess further the difficult
question of whether there is an affirmative obligation to monitor that content.
In reaching this conclusion, I note that ATA torts are atypical. Most of the
common torts that might be pleaded in relation to Facebook’s algorithms “derive
liability from behavior that is identical to publishing or speaking”—for instance,
“publishing defamatory material; publishing material that inflicts emotional
distress; or . . . attempting to de‐publish hurtful material but doing it badly.”
Barnes, 570 F.3d at 1107. The fact that Facebook has figured out how to target
material to people more likely to read it does not matter to a defamation claim, for
instance, because the mere act of publishing in the first place creates liability.
21
The ATA works differently. Plaintiffs’ material support and aiding and
abetting claims premise liability, not on publishing qua publishing, but rather on
Facebook’s provision of services and personnel to Hamas. It happens that the way
in which Facebook provides these benefits includes republishing content, but
Facebook’s duties under the ATA arise separately from the republication of
content. Cf. id. (determining that liability on a promissory estoppel theory for
promising to remove content “would come not from Yahoo’s publishing conduct,
but from Yahoo’s manifest intention to be legally obligated to do something, which
happens to be removal of material from publication”). For instance, the operation
of the algorithms is allegedly provision of “expert advice or assistance,” and the
message implied by Facebook’s prodding is allegedly a “service” or an attempt to
provide “personnel.” 18 U.S.C. § 2339A(b).
For these reasons, § 230(c)(1) does not bar plaintiffs’ claims.
III.
Even if we sent this case back to the district court, as I believe to be the right
course, these plaintiffs might have proven unable to allege that Facebook’s
matchmaking algorithms played a role in the attacks that harmed them. However,
22
assuming arguendo that such might have been the situation here, I do not think we
should foreclose the possibility of relief in future cases if victims can plausibly
allege that a website knowingly brought terrorists together and that an attack
occurred as a direct result of the site’s actions. Though the majority shuts the door
on such claims, today’s decision also illustrates the extensive immunity that the
current formulation of the CDA already extends to social media companies for
activities that were undreamt of in 1996. It therefore may be time for Congress to
reconsider the scope of § 230.
As is so often the case with new technologies, the very qualities that drive
social media’s success—its ease of use, open access, and ability to connect the
world—have also spawned its demons. Plaintiffs’ complaint illustrates how
pervasive and blatant a presence Hamas and its leaders have maintained on
Facebook. Hamas is far from alone—Hezbollah, Boko Haram, the Revolutionary
Armed Forces of Colombia, and many other designated terrorist organizations use
Facebook to recruit and rouse supporters. Vernon Silver & Sarah Frier, Terrorists
Are Still Recruiting on Facebook, Despite Zuckerberg’s Reassurances, Bloomberg
Businessweek (May 10, 2018), http://www.bloomberg.com/news/articles/2018‐05‐
23
10/terrorists‐creep‐onto‐facebook‐as‐fast‐as‐it‐can‐shut‐them‐down. Recent news
reports suggest that many social media sites have been slow to remove the
plethora of terrorist and extremist accounts populating their platforms,6 and that
such efforts, when they occur, are often underinclusive. Twitter, for instance,
banned the Ku Klux Klan in 2018 but allowed David Duke to maintain his account,
see Roose & Conger, supra, while researchers found that Facebook removed fewer
than half the terrorist accounts and posts those researchers identified, see Waters
& Postings, supra, at 8; Desmond Butler & Barbara Ortulay, Facebook Auto‐Generates
Videos Celebrating Extremist Images, Assoc. Press (May 9, 2019),
http://apnews.com/f97c24dab4f34bd0b48b36f2988952a4. Those whose accounts
are removed often pop up again under different names or with slightly different
See, e.g., Gregory Waters & Robert Postings, Spiders of the Caliphate: Mapping the
6
Islamic State’s Global Support Network on Facebook 8, Counter Extremism Project (May
2018), http://www.counterextremism.com/sites/default/files/Spiders%20of%20the%20
Caliphate%20%28May%202018%29.pdf; Yaacov Benmeleh & Felice Maranz, Israel Warns
Twitter of Legal Action Over Requests to Remove Content, Bloomberg (Mar. 20, 2018),
http://www.bloomberg.com/news/articles/2018‐03‐20/israel‐warns‐twitter‐of‐legal‐
steps‐over‐incitement‐to‐terrorism; Mike Isaac, Twitter Steps Up Efforts to Thwart
Terrorists’ Tweets, N.Y. Times (Feb. 5, 2016), http://www.nytimes.com/2016/02/06/
technology/twitter‐account‐suspensions‐terrorism.html; Kevin Roose & Kate Conger,
YouTube to Remove Thousands of Videos Pushing Extreme Views, N.Y. Times (June 5, 2019),
http://www.nytimes.com/2019/06/05/business/youtube‐remove‐extremist‐videos.html.
24
language in their profiles, playing a perverse and deadly game of Whack‐a‐Mole
with Silicon Valley. See Isaac, supra; Silver & Frier, supra.
Of course, the failure to remove terrorist content, while an important policy
concern, is immunized under § 230 as currently written. Until today, the same
could not have been said for social media’s unsolicited, algorithmic spreading of
terrorism. Shielding internet companies that bring terrorists together using
algorithms could leave dangerous activity unchecked.
Take Facebook. As plaintiffs allege, its friend‐suggestion algorithm appears
to connect terrorist sympathizers with pinpoint precision. For instance, while two
researchers were studying Islamic State (“IS”) activity on Facebook, one “received
dozens of pro‐IS accounts as recommended friends after friending just one pro‐IS
account.” Waters & Postings, supra, at 78. More disturbingly, the other “received
an influx of Philippines‐based IS supporters and fighters as recommended friends
after liking several non‐extremist news pages about Marawi and the Philippines
during IS’s capture of the city.” Id. News reports indicate that the friend‐
suggestion feature has introduced thousands of IS sympathizers to one another.
See Martin Evans, Facebook Accused of Introducing Extremists to One Another Through
25
‘Suggested Friends’ Feature, The Telegraph (May 5, 2018),
http://www.telegraph.co.uk/news/2018/05/05/facebook‐accused‐introducing‐
extremists‐one‐another‐suggested.
And this is far from the only Facebook algorithm that may steer people
toward terrorism. Another turns users’ declared interests into audience categories
to enable microtargeted advertising. In 2017, acting on a tip, ProPublica sought to
direct an ad at the algorithmically‐created category “Jew hater”—which turned
out to be real, as were “German Schutzstaffel,” “Nazi Party,” and “Hitler did
nothing wrong.” Julia Angwin et al., Facebook Enabled Advertises to Reach ‘Jew
Haters,’ ProPublica (Sept. 14, 2017), https://www.propublica.org/article/facebook‐
enabled‐advertisers‐to‐reach‐jew‐haters. As the “Jew hater” category was too
small for Facebook to run an ad campaign, “Facebook’s automated system
suggested ‘Second Amendment’ as an additional category . . . presumably because
its system had correlated gun enthusiasts with anti‐Semites.” Id.
That’s not all. Another Facebook algorithm auto‐generates business pages
by scraping employment information from users’ profiles; other users can then
“like” these pages, follow their posts, and see who else has liked them. Butler &
26
Ortutay, supra. ProPublica reports that extremist organizations including al‐Qaida,
al‐Shabab, and IS have such auto‐created pages, allowing them to recruit the
pages’ followers. Id. The page for al‐Qaida in the Arabian Peninsula included the
group’s Wikipedia entry and a propaganda photo of the damaged USS Cole,
which the group had bombed in 2000. Id. Meanwhile, a fourth algorithm integrates
users’ photos and other media to generate videos commemorating their previous
year. Id. Militants get a ready‐made propaganda clip, complete with a thank‐you
message from Facebook. Id.
This case, and our CDA analysis, has centered on the use of algorithms to
foment terrorism. Yet the consequences of a CDA‐driven, hands‐off approach to
social media extend much further. Social media can be used by foreign
governments to interfere in American elections. For example, Justice Department
prosecutors recently concluded that Russian intelligence agents created false
Facebook groups and accounts in the years leading up to the 2016 election
campaign, bootstrapping Facebook’s algorithm to spew propaganda that reached
between 29 million and 126 million Americans. See 1 Robert S. Mueller III, Special
Counsel, Report on the Investigation Into Russian Interference in the 2016 Presidential
27
Election 24‐26, U.S. Dep’t of Justice (March 2019), http://www.justice.gov/storage/
report.pdf. Russia also purchased over 3,500 advertisements on Facebook to
publicize their fake Facebook groups, several of which grew to have hundreds of
thousands of followers. Id. at 25‐26. On Twitter, Russia developed false accounts
that impersonated American people or groups and issued content designed to
influence the election; it then created thousands of automated “bot” accounts to
amplify the sham Americans’ messages. Id. at 26‐28. One fake account received
over six million retweets, the vast majority of which appear to have come from
real Twitter users. See Gillian Cleary, Twitterbots: Anatomy of a Propaganda
Campaign, Symantec (June 5, 2019), http://www.symantec.com/blogs/threat‐
intelligence/twitterbots‐propaganda‐disinformation. Russian intelligence also
harnessed the reach that social media gave its false identities to organize “dozens
of U.S. rallies,” some of which “drew hundreds” of real‐world Americans.
Mueller, Report, supra, at 29. Russia could do all this only because social media is
designed to target messages like Russia’s to the users most susceptible to them.
While Russia’s interference in the 2016 election is the best‐documented
example of foreign meddling through social media, it is not the only one. Federal
28
intelligence agencies expressed concern in the weeks before the 2018 midterm
election “about ongoing campaigns by Russia, China and other foreign actors,
including Iran,” to “influence public sentiment” through means “including using
social media to amplify divisive issues.” Press Release, Office of Dir. of Nat’l
Intelligence, Joint Statement from the ODNI, DOJ, FBI, and DHS: Combatting
Foreign Influence in U.S. Elections, (Oct. 19, 2018), https://www.dni.gov/index.
php/newsroom/press‐releases/item/1915‐joint‐statement‐from‐the‐odni‐doj‐fbi‐
and‐dhs‐combating‐foreign‐influence‐in‐u‐s‐elections. News reports also suggest
that China targets state‐sponsored propaganda to Americans on Facebook and
purchases Facebook ads to amplify its communications. See Paul Mozur, China
Spreads Propaganda to U.S. on Facebook, a Platform It Bans at Home, N.Y. Times (Nov.
8, 2017), https://www.nytimes.com/2017/11/08/technology/china‐facebook.html.
Widening the aperture further, malefactors at home and abroad can
manipulate social media to promote extremism. “Behind every Facebook ad,
Twitter feed, and YouTube recommendation is an algorithm that’s designed to
keep users using: It tracks preferences through clicks and hovers, then spits out a
steady stream of content that’s in line with your tastes.” Katherine J. Wu, Radical
29
Ideas Spread Through Social Media. Are the Algorithms to Blame?, PBS (Mar. 28, 2019),
https://www.pbs.org/wgbh/nova/article/radical‐ideas‐social‐media‐algorithms.
All too often, however, the code itself turns those tastes sour. For example, one
study suggests that manipulation of Facebook’s news feed influences the mood of
its users: place more positive posts on the feed and users get happier; focus on
negative information instead and users get angrier. Adam D. I. Kramer et al.,
Experimental Evidence of Massive‐Scale Emotional Contagion Through Social Networks,
111 PNAS 8788, 8789 (2014). This can become a problem, as Facebook’s algorithm
“tends to promote the most provocative content” on the site. Max Fisher, Inside
Facebook’s Secret Rulebook for Global Political Speech, N.Y. Times (Dec. 27, 2018),
http://www.nytimes.com/2018/12/27/world/facebook‐moderators.html. Indeed,
“[t]he Facebook News Feed environment brings together, in one place, many of
the influences that have been shown to drive psychological aspects of
polarization.” Jaime E. Settle, Frenemies: How Social Media Polarizes America (2018).
Likewise, YouTube’s video recommendation algorithm—which leads to more
than 70 percent of time people spend on the platform—has been criticized for
shunting visitors toward ever more extreme and divisive videos. Roose & Conger,
30
supra; see Jack Nicas, How YouTube Drives People to the Internet’s Darkest Corners,
Wall St. J. (Feb. 7, 2018), https://www.wsj.com/articles/how‐youtube‐drives‐
viewers‐to‐the‐internets‐darkest‐corners‐1518020478. YouTube has fine‐tuned its
algorithm to recommend videos that recalibrate users’ existing areas of interest
and steadily steer them toward new ones—a modus operandi that has reportedly
proven a real boon for far‐right extremist content. See Kevin Roose, The Making of
a YouTube Radical, N.Y. Times (June 8, 2019), http://www.nytimes.com/interactive/
2019/06/08/technology/youtube‐radical.html.
There is also growing attention to whether social media has played a
significant role in increasing nationwide political polarization. See Andrew
Soergel, Is Social Media to Blame for Political Polarization in America?, U.S. News &
World Rep. (Mar. 20, 2017), https://www.usnews.com/news/articles/2017‐03‐20/is‐
social‐media‐to‐blame‐for‐political‐polarization‐in‐america. The concern is that
“web surfers are being nudged in the direction of political or unscientific
propaganda, abusive content, and conspiracy theories.” Wu, Radical Ideas, supra.
By surfacing ideas that were previously deemed too radical to take seriously,
social media mainstreams them, which studies show makes people “much more
31
open” to those concepts. Max Fisher & Amanda Taub, How Everyday Social Media
Users Become Real‐World Extremists, N.Y. Times (Apr. 25, 2018),
http://www.nytimes.com/2018/04/25/world/asia/facebook‐extremism.html. At its
worst, there is evidence that social media may even be used to push people toward
violence.7 The sites are not entirely to blame, of course—they would not have such
success without humans willing to generate and to view extreme content.
Providers are also tweaking the algorithms to reduce their pull toward hate speech
and other inflammatory material. See Isaac, supra; Roose & Conger, supra. Yet the
dangers of social media, in its current form, are palpable.
While the majority and I disagree about whether § 230 immunizes
interactive computer services from liability for all these activities or only some, it
See, e.g., Sarah Marsh, Social Media Related to Violence by Young People, Say Experts,
7
The Guardian (Apr. 2, 2018), https://www.theguardian.com/media/2018/apr/02/social‐
media‐violence‐young‐people‐gangs‐say‐experts; Kevin Roose, A Mass Murder of, and for,
the Internet, N.Y. Times (Mar. 15, 2019), https://www.nytimes.com/2019/03/15/
technology/facebook‐youtube‐christchurch‐shooting.html; Craig Timberg et al., The New
Zealand Shooting Shows How TouTube and Facebook Spread Hate and Violent Images—Yet
Again, Wash. Post (Mar. 15, 2019), https://www.washingtonpost.com/technology/
2019/03/15/facebook‐youtube‐twitter‐amplified‐video‐christchurch‐mosque‐shooting;
Julie Turkewitz & Kevin Roose, Who Is Robert Bowers, the Suspect in the Pittsburgh
Synagogue Shooting?, N.Y. Times (Oct. 27, 2018), https://www.nytimes.com/2018/
10/27/us/robert‐bowers‐pittsburgh‐synagogue‐shooter.html.
32
is pellucid that Congress did not have any of them in mind when it enacted the
CDA. The text and legislative history of the statute shout to the rafters Congress’s
focus on reducing children’s access to adult material. Congress could not have
anticipated the pernicious spread of hate and violence that the rise of social media
likely has since fomented. Nor could Congress have divined the role that social
media providers themselves would play in this tale. Mounting evidence suggests
that providers designed their algorithms to drive users toward content and people
the users agreed with—and that they have done it too well, nudging susceptible
souls ever further down dark paths. By contrast, when the CDA became law, the
closest extant ancestor to Facebook (and it was still several branches lower on the
evolutionary tree) was the chatroom or message forum, which acted as a digital
bulletin board and did nothing proactive to forge off‐site connections.8
8 See Caitlin Dewey, A Complete History of the Rise and Fall—and Reincarnation!—of
the Beloved ‘90s Chatroom, Wash. Post (Oct. 30, 2014), http://www.washingtonpost.com/
news/the‐intersect/wp/2014/10/30/a‐complete‐history‐of‐the‐rise‐and‐fall‐and‐
reincarnation‐of‐the‐beloved‐90s‐chatroom; see also Then and Now: A History of Social
Networking Sites, CBS News, http://www.cbsnews.com/pictures/then‐and‐now‐a‐history‐
of‐social‐networking‐sites (last accessed July 9, 2019) (detailing the evolution of social
media sites from Classmates, launched only “as a list of school affiliations” in December
1995; to “the very first social networking site” Six Degrees, which launched in May 1997
but whose networks were limited “due to the lack of people connected to the Internet”;
33
Whether, and to what extent, Congress should allow liability for tech
companies that encourage terrorism, propaganda, and extremism is a question for
legislators, not judges. Over the past two decades “the Internet has outgrown its
swaddling clothes,” Roommates.Com, 521 F.3d at 1175 n.39, and it is fair to ask
whether the rules that governed its infancy should still oversee its adulthood. It is
undeniable that the Internet and social media have had many positive effects
worth preserving and promoting, such as facilitating open communication,
dialogue, and education. At the same time, as outlined above, social media can be
manipulated by evildoers who pose real threats to our democratic society. A
healthy debate has begun both in the legal academy9 and in the policy
to Friendster, launched in March 2002 and “credited as giving birth to the modern social
media movement”; to Facebook, which was “rolled out to the public in September 2006”).
9 See, e.g., Danielle Keats Citron & Benjamin Wittes, The Problem Isnʹt Just Backpage:
Revising Section 230 Immunity, 2 Geo. L. Tech. Rev. 453, 454‐55 (2018); Jeff Kosseff,
Defending Section 230: The Value of Intermediary Immunity, 15 J. Tech. L. & Polʹy 123, 124
(2010); Daniela C. Manzi, Managing the Misinformation Marketplace: The First Amendment
and the Fight Against Fake News, 87 Fordham L. Rev. 2623, 2642‐43 (2019). Much of the
enterprising legal scholarship debating the intersection of social media, terrorism, and
the CDA comes from student Notes. See, e.g., Jaime E. Freilich, Note, Section 230’s Liability
Shield in the Age of Online Terrorist Recruitment, 83 Brook. L. Rev. 675, 690‐91 (2018); Anna
Elisabeth Jayne Goodman, Note and Comment, When You Give a Terrorist a Twitter:
Holding Social Media Companies Liable for their Support of Terrorism, 46 Pepp. L. Rev. 147,
182‐86 (2018); Nicole Phe, Note, Social Media Terror: Reevaluating Intermediary Liability
34
community10 about changing the scope of § 230. Perhaps Congress will clarify
what I believe the text of the provision already states: that the creation of social
networks reaches beyond the publishing functions that § 230 protects. Perhaps
Congress will engage in a broader rethinking of the scope of CDA immunity. Or
perhaps Congress will decide that the current regime best balances the interests
involved. In the meantime, however, I cannot join my colleagues’ decision to
immunize Facebook’s friend‐ and content‐suggestion algorithms from judicial
scrutiny. I therefore must in part respectfully dissent, as I concur in part.
Under the Communications Decency Act, 51 Suffolk U. L. Rev. 99, 126‐30 (2018).
10 See, e.g., Tarleton Gillespie, How Social Netowrks Set the Limits of What We Can Say
Online, Wired (June 26, 2018), http://www.wired.com/story/how‐social‐networks‐set‐the‐
limits‐of‐what‐we‐can‐say‐online; Christiano Lima, How a Widening Political Rift Over
Online Liability Is Splitting Washington, Politico (July 9, 2019), http://www.politico.com/
story/2019/07/09/online‐industry‐immunity‐section‐230‐1552241; Mark Sullivan, The
1996 Law That Made the Web Is in the Crosshairs, Fast Co. (Nov. 29, 2018),
http://www.fastcompany.com/90273352/maybe‐its‐time‐to‐take‐away‐the‐outdated‐
loophole‐that‐big‐tech‐exploits; cf. Darrell M. West & John R. Allen, How Artificial
Intelligence Is Transforming the World, Brookings (Apr. 24, 2018),
http://www.brookings.edu/research/how‐artificial‐intelligence‐is‐transforming‐the‐
world (“The malevolent use of AI exposes individuals and organizations to unnecessary
risks and undermines the virtues of the emerging technology.”).
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