Force v. Facebook, Inc., 18-397

• Citation: 934 F.3d 53
• Decision Date: 31 July 2019
• Docket Number: August Term, 2018,No. 18-397,18-397
• Parties: Stuart FORCE, individually and as Administrator on behalf of the Estate of Taylor Force, Robbi Force, Kristin Ann Force, Abraham Ron Fraenkel, individually and as Administrator on behalf of the Estate of Yaakov Naftali Fraenkel, and as the natural and legal guardian of minor plaintiffs A.H.H.F., A.L.F., 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., Rachel Devora Sprecher Fraenkel, individually and as Administrator on behalf of the Estate of Yaakov Naftali Fraenkel and as the natural and legal guardian of minor plaintiffs A.H.H.F., A.L.F., N.E.F, N.S.F., and S.R.F., TZVI Amitay Fraenkel, Shmuel Elimelech Braun, individually and as Administrator on behalf of the Estate of Chaya Zissel Braun, Chana Braun, individually and as Administrator on behalf of the Estate of Chaya Zissel Braun, Shimshon Sam Halperin, Sara Halperin, Murray Braun, Esther Braun, Micah Lakin Avni, individually and as Joint Administrator on behalf of the Estate of Richard Lakin, Maya Lakin, individually and as Joint Administrator on behalf of the Estate of Richard Lakin, Menachem Mendel Rivkin, individually and as the natural and legal guardian of minor plaintiffs S.S.R., M.M.R., R.M.R., S.Z.R., Bracha Rivkin, individually and as the natural and legal guardian of minor plaintiffs S.S.R., M.M.R., R.M.R., and S.Z.R., S.S.R., M.M.R., R.M.R., S.Z.R., Plaintiffs-Appellants, v. FACEBOOK, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

934 F.3d 53

Stuart FORCE, individually and as Administrator on behalf of the Estate of Taylor Force, Robbi Force, Kristin Ann Force, Abraham Ron Fraenkel, individually and as Administrator on behalf of the Estate of Yaakov Naftali Fraenkel, and as the natural and legal guardian of minor plaintiffs A.H.H.F., A.L.F., 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., Rachel Devora Sprecher Fraenkel, individually and as Administrator on behalf of the Estate of Yaakov Naftali Fraenkel and as the natural and legal guardian of minor plaintiffs A.H.H.F., A.L.F., N.E.F, N.S.F., and S.R.F., TZVI Amitay Fraenkel, Shmuel Elimelech Braun, individually and as Administrator on behalf of the Estate of Chaya Zissel Braun, Chana Braun, individually and as Administrator on behalf of the Estate of Chaya Zissel Braun, Shimshon Sam Halperin, Sara Halperin, Murray Braun, Esther Braun, Micah Lakin Avni, individually and as Joint Administrator on behalf of the Estate of Richard Lakin, Maya Lakin, individually and as Joint Administrator on behalf of the Estate of Richard Lakin, Menachem Mendel Rivkin, individually and as the natural and legal guardian of minor plaintiffs S.S.R., M.M.R., R.M.R., S.Z.R., Bracha Rivkin, individually and as the natural and legal guardian of minor plaintiffs S.S.R., M.M.R., R.M.R., and S.Z.R., S.S.R., M.M.R., R.M.R., S.Z.R., Plaintiffs-Appellants,

v.FACEBOOK, INC., Defendant-Appellee.¹

No. 18-397

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: February 25, 2019

Decided: July 31, 2019

Meir Katz (Robert J. Tolchin, on the brief), The Berkman Law Office, LLC, Brooklyn, New York, for Plaintiffs-Appellants.

Craig S. Primis (K. Winn Allen, Matthew S. Brooker, on the brief), Kirkland & Ellis, LLP, Washington, DC, for Defendant-Appellee.

Sophia Cope, David Greene, Electronic Frontier Foundation, San Francisco, CA, amicus curiae.

Before: Katzmann, Chief Judge, Droney, and Sullivan, Circuit Judges.

Droney, Circuit Judge:

The principal question presented in this appeal is whether 47 U.S.C. § 230(c)(1), a provision enacted by the Communications Decency Act of 1996, shields Defendant-Appellee Facebook, Inc., from civil liability as to Plaintiffs-Appellants' federal anti-terrorism claims. Plaintiffs include the U.S. citizen victims, and relatives and representatives of the estates of those victims, of certain terrorist attacks committed by Hamas in Israel. They contend that Facebook unlawfully provided Hamas, a U.S.-designated foreign terrorist organization, with a communications platform that enabled those attacks.

The district court granted Facebook's motion to dismiss plaintiffs' First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) on the basis of Section 230(c)(1) immunity, an affirmative defense. After entering judgment without prejudice to moving to file an amended complaint, the district court denied with prejudice plaintiffs' motion to file a second amended complaint on the basis that the proposed complaint did not cure the deficiencies in the First Amended Complaint.

On appeal, plaintiffs argue that the district court improperly dismissed their claims because Section 230(c)(1) does not provide immunity to Facebook under the circumstances of their allegations.

We conclude that the district court properly applied Section 230(c)(1) to plaintiffs' federal claims. Also, upon our review of plaintiffs' assertion of diversity jurisdiction over their foreign law claims, 28 U.S.C. § 1332(a), we conclude that such jurisdiction is lacking. Accordingly, we affirm the judgment of the district court as to the federal claims. We also dismiss the foreign law claims, but without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

I. Allegations in Plaintiffs' Complaint²

Because this case comes to us on a motion to dismiss, we recount the facts as plaintiffs provide them to us, treating as true the allegations in their complaint. See Galper v. JP Morgan Chase Bank, N.A. , 802 F.3d 437, 442 (2d Cir. 2015).

A. The Attacks

Hamas is a Palestinian Islamist organization centered in Gaza. It has been designated a foreign terrorist organization by the United States and Israel. Since it was formed in 1987, Hamas has conducted thousands of terrorist attacks against civilians in Israel.

Plaintiffs' complaint describes terrorist attacks by Hamas against five Americans in Israel between 2014 and 2016. Yaakov Naftali Fraenkel, a teenager, was kidnapped by a Hamas operative in 2014 while walking home from school in Gush Etzion, near Jerusalem, and then was shot to death. Chaya Zissel Braun, a 3-month-old baby, was killed at a train station in Jerusalem in 2014 when a Hamas operative drove a car into a crowd. Richard Lakin died after Hamas members shot and stabbed him in an attack on a bus in Jerusalem in 2015. Graduate student Taylor Force was stabbed to death by a Hamas attacker while walking on the Jaffa boardwalk in Tel Aviv in 2016. Menachem Mendel Rivkin was stabbed in the neck in 2016 by a Hamas operative while walking to a restaurant in a town near Jerusalem. He suffered serious injuries but survived. Except for Rivkin, plaintiffs are the representatives of the estates of those who died in these attacks and family members of the victims.

B. Facebook's Alleged Role in the Attacks

1. How Facebook Works

Facebook operates an "online social network platform and communications service[ ]." App'x 230. Facebook users populate their own "Facebook ‘pages’ " with "content," including personal identifying information and indications of their particular "interests." App'x 250–51, 345. Organizations and other entities may also have Facebook pages. Users can post content on others' Facebook pages, reshare each other's content, and send messages to one another. The content can be text-based messages and statements, photos, web links, or other information.

Facebook users must first register for a Facebook account, providing their names, telephone numbers, and email addresses. When registering, users do not specify the nature of the content they intend to publish on the platform, nor does Facebook screen new users based on its expectation of what content they will share with other Facebook users. There is no charge to prospective users for joining Facebook.³

Facebook does not preview or edit the content that its users post. Facebook's terms of service specify that a user "own[s] all of the content and information [the user] post[s] on Facebook, and [the user] can control how it is shared through [the user's] privacy and application settings." App'x 252 (alterations in original).

While Facebook users may view each other's shared content simply by visiting other Facebook pages and profiles, Facebook also provides a personalized "newsfeed" page for each user. Facebook uses algorithms—"a precisely defined set of mathematical or logical operations for the performance of a particular task," Algorithm , Oxford English Dictionary (3d ed. 2012)—to determine the content to display to users on the newsfeed webpage. Newsfeed content is displayed within banners or modules and changes frequently. The newsfeed algorithms—developed by programmers employed by Facebook—automatically analyze Facebook users' prior behavior on the Facebook website to predict and display the content that is most likely to interest and engage those particular users. Other algorithms similarly use Facebook users' behavioral and demographic data to show those users third-party groups, products, services, and local events likely to be of interest to them.

Facebook's algorithms also provide "friend suggestions," which, if accepted by the user, result in those users seeing each other's shared content. App'x 346–47. The friend-suggestion algorithms are based on such factors as the users' common membership in Facebook's online "groups," geographic location, attendance at events, spoken language, and mutual friend connections on Facebook. App'x 346.

Facebook's advertising algorithms and "remarketing" technology also allow advertisers on Facebook to target specific ads to its users who are likely to be most interested in them and thus to be most beneficial to those advertisers. App'x 347. Those advertisements are displayed on the users' pages and other Facebook webpages. A substantial portion of Facebook's revenues is from such advertisers.

2. Hamas's Use of Facebook⁴

Plaintiffs allege that Hamas used Facebook to post content that encouraged terrorist attacks in Israel during the time period of the attacks in this case. The attackers allegedly viewed that content on Facebook. The encouraging content ranged in specificity; for example, Fraenkel, although not a soldier, was kidnapped and murdered after Hamas members posted messages on Facebook that advocated the kidnapping of Israeli soldiers. The attack that killed the Braun baby at the light rail station in Jerusalem came after Hamas posts encouraged car-ramming attacks at light rail stations. By contrast, the killer of Force is alleged to have been a Facebook user, but plaintiffs do not set forth what specific content encouraged his attack, other than that "Hamas ... use[d] Facebook to promote terrorist stabbings." App'x 335.

Hamas also used Facebook to celebrate these attacks and others, to transmit political messages, and to generally support further violence against Israel. The perpetrators were able to view this content because, although Facebook's terms and policies bar such use by Hamas and other designated foreign terrorist organizations, Facebook has allegedly failed to remove the "openly maintained" pages and associated content of certain Hamas leaders, spokesmen, and other members. App'x 229. It is also alleged that Facebook's algorithms directed such content to the personalized newsfeeds of the individuals who harmed the plaintiffs. Thus, plaintiffs claim, Facebook enables Hamas "to disseminate its messages directly to its intended audiences," App'x 255, and to "carry out the essential communication...