Fields v. Twitter, Inc.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation881 F.3d 739
Docket NumberNo. 16-17165,16-17165
Parties Tamara FIELDS, on behalf of herself, as a representative of the Estate of Lloyd Fields, Jr.; Heather Creach, on behalf of herself and as a representative of the Estate of James Damon Creach; J.C. (1), a minor; J.C. (2), a minor, Plaintiffs–Appellants v. TWITTER, INC., Defendant–Appellee
Decision Date31 January 2018

881 F.3d 739

Tamara FIELDS, on behalf of herself, as a representative of the Estate of Lloyd Fields, Jr.; Heather Creach, on behalf of herself and as a representative of the Estate of James Damon Creach; J.C. (1), a minor; J.C. (2), a minor, Plaintiffs–Appellants
v.
TWITTER, INC., Defendant–Appellee

No. 16-17165

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2017, San Francisco, California
Filed January 31, 2018


Joshua D. Arisohn (argued), L. Timothy Fisher, and Scott A. Bursor, Bursor & Fisher P.A., Walnut Creek, California, New York, New York, for Plaintiffs–Appellants.

Seth P. Waxman (argued), Patrick J. Carome, and Ari Holtzblatt, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Mark D. Flanagan, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California; for Defendant–Appellee.

Aaron Mackey, Jamie Williams, and Sophia Cope, Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation and Center for Democracy & Technology.

Sonali D. Maitra, Durie Tangri LLP, San Francisco, California, for Amicus Curiae Internet Association.

Catherine R. Gellis, Sausalito, California, for Amicus Curiae Floor 64 Inc. DBA The Copia Institute.

Before: MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges, and STEVEN J. MCAULIFFE,* District Judge.

M. SMITH, Circuit Judge:

881 F.3d 741

After Lloyd "Carl" Fields, Jr., and James Damon Creach were killed while working as government contractors in Jordan in an attack for which ISIS claimed credit, Plaintiffs–Appellants sued Defendant–Appellee Twitter, Inc. (Twitter) pursuant to 18 U.S.C. § 2333(a), the civil remedies provision of the Anti–Terrorism Act (ATA), alleging that they were injured "by reason of" Twitter's knowing provision of material support to ISIS. Twitter moved to dismiss the case, and its motion was granted. The district court held that Plaintiffs–Appellants had failed to plead that they were injured "by reason of" Twitter's conduct. The district court also ruled that Twitter's liability was precluded by § 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230(b), because Plaintiffs–Appellants' claims sought to treat Twitter as the publisher of ISIS's content. Plaintiffs–Appellants have appealed both holdings. We affirm on the ground that Plaintiffs–Appellants have failed to adequately plead proximate causation.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Deaths of Lloyd "Carl" Fields, Jr., and James Damon Creach

Plaintiffs–Appellants Tamara Fields and Heather Creach brought this lawsuit on behalf of themselves and as representatives of the estates of their husbands, Lloyd "Carl" Fields, Jr. (Fields), and James Damon Creach (Creach), respectively. They are joined as Plaintiffs–Appellants by J.C. (1) and J.C. (2), Creach's two minor sons, who are represented by their common legal guardian, Heather Creach. All Plaintiffs–Appellants are American nationals.

This case arises from the tragic deaths of Fields and Creach in Jordan, on November 9, 2015. Fields had "travelled to Jordan on June 12, 2015 as a government contractor through DynCorp International." "Creach [had] arrived in Jordan on October 15, 2015[,] where he was working through the government contractor DECO, Inc." While in Jordan, both men were assigned to work at the International Police Training Center (the IPTC) in southeast Amman, where they "both used their years of experience as police officers to train law enforcement personnel from Jordan, Iraq and the Palestinian Territories in basic police and security skills." Fields "had previously served as a Deputy Sheriff in Calcasieu Parish, Louisiana, and as a police advisor in both Iraq and Afghanistan." Creach "was a graduate of the Virginia Beach Polic[e] Academy, a former police officer in the Virginia Police Department and had trained police officers in Afghanistan, Kenya and other locations."

One of the students at the IPTC was Anwar Abu Zaid (Abu Zaid), a "28–year old Jordanian police captain." "On November 9, 2015, Abu Zaid arrived at [the] IPTC[,] smuggling [in] a Kalashnikov assault rifle with 120 bullets and two handguns in his car." Because he was an officer, he was not searched upon entry. "After the noontime prayer, Abu Zaid shot a truck that was moving through the facility, killing [Creach]. Abu Zaid then entered the facility's cafeteria where he killed an additional four people eating lunch, including

881 F.3d 742
Fields]." Israeli military intelligence ultimately determined that "Abu Zaid was a graduate of al-Mutah University in al-Karak, Jordan where he was part of a clandestine ... terror cell" associated with the Islamic State of Iraq and Syria (al-Sham) (ISIS).1

"ISIS claimed responsibility for the attack in a statement issued through [its] al-Battar Media Foundation: ‘Yes ... we kill the Americans in Amman,’ the terror group said." ISIS reiterated the claim in its Dabiq Magazine, Issue 12:

"And on 9 November 2015, Anwar Abu Zeid—after repenting from his former occupation—attacked the American crusaders and their apostate allies, killing two American crusaders, two Jordanian apostates, and one South African crusader. These are the deeds of those upon the methodology of the revived Khilafah. They will not let its enemies enjoy rest until enemy blood is spilled in revenge for the religion and the Ummah."

II. Twitter's Conduct

Plaintiffs–Appellants have sued Twitter pursuant to 18 U.S.C. § 2333(a), the ATA's civil remedies provision. Plaintiffs–Appellants accuse Twitter of violating § 2333(a) by knowingly providing material support to ISIS, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2339B.2 Specifically, Plaintiffs–Appellants allege that Twitter (1) provided material support to ISIS, a Foreign Terrorist Organization (FTO), in the form of Twitter accounts and direct-messaging services, (2) did so knowingly and recklessly, and (3) thereby proximately caused Plaintiffs–Appellants' injuries.

These allegations are segregated into three sections of Plaintiffs–Appellants' Second Amended Complaint (SAC). First, in support of their material-support allegation, Plaintiffs–Appellants claim that Twitter has provided ISIS with Twitter accounts. Plaintiffs–Appellants identify three examples of ISIS-affiliated Twitter accounts with large numbers of followers, which constitute a fraction of the "estimated 70,000 Twitter accounts, at least 79 of which were ‘official,’ " that ISIS had as of December 2014. Plaintiffs–Appellants contend that "[s]ince 2010, Twitter has provided ISIS with dozens of accounts on its social network," and until recently did nothing while "the number of ISIS accounts on Twitter grew at an astonishing rate."

Second, in support of their scienter allegation, Plaintiffs–Appellants assert that ISIS is a well-known FTO that openly uses Twitter. Plaintiffs–Appellants claim that "[t]he United Nations and international NGOs have condemned ISIS for war crimes and ethnic cleansing," and that the United States designated ISIS an FTO on December 17, 2004. Plaintiffs–Appellants also provide numerous examples of media reports documenting ISIS's Twitter usage, which reports have prompted many government officials and technology experts to urge Twitter to be more aggressive in combating terrorism. Only recently has Twitter responded by changing its rules to prohibit threats of violence or terrorism and terrorism promotion, and by suspending terrorism-promoting accounts.

Third, in support of their causation allegation, Plaintiffs–Appellants allege ways in which ISIS uses Twitter. Plaintiffs–Appellants

[881 F.3d 743

indicate that ISIS uses Twitter's Direct Messaging feature to communicate with potential recruits and "for fundraising and operational purposes." They assert that ISIS also uses Twitter to recruit more publicly, by posting "instructional guidelines and promotional videos, referred to as ‘mujatweets.’ " Plaintiffs–Appellants also claim that within the year preceding August 2016 alone, Twitter allowed ISIS to attract "more than 30,000 foreign recruits," and that ISIS uses Twitter to fundraise and to "spread propaganda and incite fear by posting graphic photos and videos of its terrorist feats."

III. Prior Proceedings

Plaintiffs–Appellants filed their complaint on January 13, 2016. After Twitter filed its first motion to dismiss on March 10, 2016, Plaintiffs–Appellants filed an Amended Complaint on March 24, 2016. Twitter again moved to dismiss on April 6, 2016, and its motion was granted with leave to amend on August 10, 2016. Plaintiffs–Appellants filed the SAC on August 30, 2016, and Twitter filed a motion to dismiss it on September 13, 2016. The motion was granted with prejudice on November 18, 2016, and a final judgment was entered. This appeal timely followed.

STANDARD OF REVIEW

"We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the complaint as true and construing them in the light most favorable to the nonmoving party." Campidoglio LLC v. Wells Fargo & Co. , 870 F.3d 963, 970 (9th Cir. 2017) (quoting Skilstaf, Inc. v. CVS Caremark Corp. , 669 F.3d 1005, 1014 (9th...

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