Gonzalez v. Google, Inc.

• Decision Date: 15 August 2018
• Docket Number: Case No. 16-cv-03282-DMR
• Citation: 335 F.Supp.3d 1156
• Parties: Reynaldo GONZALEZ, et al., Plaintiffs, v. GOOGLE, INC., Defendant.
• Court: U.S. District Court — Northern District of California

335 F.Supp.3d 1156

Reynaldo GONZALEZ, et al., Plaintiffs,

v.GOOGLE, INC., Defendant.

Case No. 16-cv-03282-DMR

United States District Court, N.D. California.

Signed August 15, 2018

Ari Kresch, Solomon M. Radner, Excolo Law, PLLC, Southfield, MI, Keith L. Altman, The Law Office of Keith Altman, Temecula, CA, Robert Joseph Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, Marshall Neil Solarz, Weinstock Manion et al, Los Angeles, CA, for Plaintiffs.

Brian M. Willen, Wilson Sonsini, New York, NY, David H. Kramer, Lauren Gallo White, Wilson Sonsini Goodrich and Rosati, PC, Palo Alto, CA, for Defendant.

ORDER ON MOTION TO DISMISS THIRD AMENDED COMPLAINT

Re: Dkt. No. 116

Donna M. Ryu, United States Magistrate JudgeNohemi Gonzalez was murdered during the November 2015 attacks in Paris committed by terrorists associated with the Islamic State of Iraq and Syria ("ISIS"). Plaintiffs are Gonzalez's surviving family members, including her mother, father, stepfather, and brothers. They seek to hold Defendant Google, Inc. ("Google") liable for her death under the Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2333, based on Google's ownership and operation of YouTube. In their third amended complaint, Plaintiffs contend that Google has knowingly provided material support to ISIS in the form of its YouTube platform, that ISIS has used YouTube as a tool to commit terrorism, and that Google has concealed its provision of material support to ISIS. According to Plaintiffs, Google's material support was a proximate cause of Gonzalez's death.

The court previously dismissed Plaintiffs' second amended complaint on the ground that their claims were barred by the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1), which protects online service providers from liability for material posted on a provider's website by others. Gonzalez v. Google, Inc. , 282 F.Supp.3d 1150 (N.D. Cal. 2017). Plaintiffs filed a third amended complaint in which they re-allege the same four claims that the court previously found were barred by the CDA, and add two new claims for relief. Google again moves to dismiss. [Docket No. 116.]

The court vacated the hearing at the parties' request. [Docket Nos. 122, 124.] The court subsequently ordered Plaintiffs to file a supplemental brief addressing the impact of Fields v. Twitter , 881 F.3d 739 (9th Cir. 2018), which the Ninth Circuit issued after Plaintiffs filed their opposition brief. [Docket No. 124.] Plaintiffs timely filed the supplemental brief. [Docket No. 126.] The court finds this matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, Google's motion is granted.

I. BACKGROUND

Plaintiffs make the following allegations in the third amended complaint ("TAC"), all of which are taken as true for purposes of this motion.¹ [Docket No. 111.] In the fall of 2015, Nohemi Gonzalez was a 26-year old California State University student studying abroad in Paris, France. [Docket No. 111 (TAC) ¶ 471.] On November 13, 2015, Gonzalez was dining with a group of friends at La Belle Équipe, a Paris bistro. A few minutes into their meal, three ISIS terrorists, Abdelhamid Abaaoud, Brahim Abdeslam, and Chakib Akrouh, approached the restaurant and began spraying the patrons with bullets, killing Gonzalez and 18 others. Id. at ¶¶ 475-477. Two other groups of ISIS terrorists mounted coordinated attacks that night at other locations in Paris, including the Stade de France and the Bataclan Theatre concert hall. They eventually killed 130 individuals and wounded

nearly 400. Id. at ¶¶ 299, 305, 405-435. ISIS issued statements claiming responsibility for the attacks, including audio and video messages posted on YouTube, a free online video platform owned and operated by Google. Id. at ¶¶ 154, 179, 436-470. Plaintiffs allege that twelve individual ISIS terrorists were directly involved in the Paris attacks, including the three La Belle Équipe shooters. Id. at ¶ 306.

The TAC describes in detail the origins of ISIS, which is a designated foreign terrorist organization ("FTO") under the Immigration and Nationality Act, 8 U.S.C. § 1189. Id. at ¶¶ 82-153. It adds allegations about terrorist attacks in the 1980s, 1990s, and the September 11, 2001 attacks in the United States, and the evolution of anti-terrorism legislation that followed these attacks. Id. at ¶¶ 34-81. Plaintiffs allege that YouTube "has played an essential role in the rise of ISIS to become the most feared terrorist organization in the world." Id. at ¶ 185. YouTube provides ISIS with a "unique and powerful tool of communication" that enables it to achieve its program of terrorism and motivate others to carry out more terrorist attacks. Id. at ¶ 192; see also id. at ¶¶ 186-91, 193. Plaintiffs contend that ISIS uses YouTube as a means to accomplish many of its goals:

ISIS not only uses YouTube for recruiting, planning, inciting, and giving instructions for terror attacks, ISIS also uses YouTube to issue terroristic threats, attract attention to its terror attacks and atrocities, instill and intensify fear from terror attacks, intimidate and coerce civilian populations, take credit for terror attacks, communicate its desired messages about the terror attacks, reach its desired audiences, demand and attempt to obtain results from the terror attacks, and influence and affect government policies and conduct.

Id. at ¶ 194; see also id. at ¶¶ 195-96, 225. Plaintiffs identify and describe a number of videos that allegedly were posted on YouTube at the direction of individuals affiliated with ISIS, including gruesome depictions of executions of ISIS prisoners. See id. at ¶¶ 126-128, 143-45, 227, 230, 243, 245-47, 259-81. According to Plaintiffs, ISIS has recruited more than 30,000 foreign volunteers since 2014 through its use of YouTube and other social media platforms. Id. at ¶ 248.

The TAC details the planning and execution of the Paris attacks. Id. at ¶¶ 299-435. Plaintiffs allege that "a major component of the Paris Attack was the messaging disseminated by ISIS prior to, during, and after the events," and that the planning for the attacks "involved the use of YouTube, before and after the attack, to intensify the fear and intimidation that ISIS intended to inflict by this mass casualty attack." Id. at ¶¶ 301-303. According to Plaintiffs, ISIS used YouTube's platform and services to "facilitate and accomplish" the goals of the attacks—intimidation, coercion, and influence. Id. at ¶¶ 300-304. Of the twelve ISIS terrorists who carried out the attacks, Plaintiffs allege that two, Abaaoud and Najim Laachraoui, used online social media platforms to post alleged terrorist recruiting videos. Id. at ¶¶ 355-58, 362. Specifically, Plaintiffs allege that in March 2014, Abaaoud "posted a link on his Facebook account to an ISIS recruiting video on YouTube," and that Laachraoui "actively followed ISIS social media accounts and posted links to jihadi YouTube videos on his own accounts as well." Id. at ¶¶ 356-58, 362.

The TAC also contains allegations about the operation of the YouTube platform. Registered users may establish a YouTube "channel," post videos on the platform, and post comments on the pages of YouTube channels and videos. Id. at ¶ 163. When a YouTube user posts a video, "Google's computer servers receive the information and distribute it to the YouTube user's network of YouTube channel ‘subscribers.’ " Id. at ¶ 543. The TAC adds allegations that YouTube "assists ISIS in spreading its message" by recommending ISIS videos to users "based upon the content and what is known about the viewer." Id. at ¶ 535. Google employs algorithms to help users locate other videos and accounts with similarities, "introducing users to other users and videos that they will be interested in based on the video and account information and characteristics." Id. at ¶¶ 549-50. "[I]n this way, users are able to locate other videos and accounts related to ISIS even if they do not know the correct identifier or if the original YouTube account has been replaced by a new identifier." Id. at ¶ 549. Plaintiffs further allege that YouTube is "useful[ ] in facilitating social networking among jihadists," since it provides the "ability to exchange comments about videos and to send private messages to other users," enabling jihadists to rapidly identify each other. Id. at ¶ 553.

Plaintiffs further allege that Google derives revenue from ads on YouTube. According to Plaintiffs, Google targets ads to the viewer "based upon algorithms that analyze and use data about the ads, the user, and the video posted. Id. at ¶ 520. Google "agrees to share[ ] a percentage of the revenue it generates from ads placed before YouTube videos with the user who posts the video." Id. at ¶ 532. Plaintiffs allege upon information and belief that "Google has reviewed and approved ISIS videos, including videos posted by ISIS-affiliated users, for ‘monetization’ through" its placement of ads with these videos," and that by approving such videos, "Google has agreed to share with ISIS and ISIS-affiliated users a percentage of revenues generated by these ads." Id. at ¶¶ 521-22. The TAC includes a screen shot of an example of Google-placed targeted ads alongside what Plaintiffs describe as "an ISIS video" on YouTube. Id. at ¶ 533. Plaintiffs allege that "[t]he video was created by ISIS and was posted by ISIS using a known ISIS account."Id. They further allege upon information and belief that "the poster complied with YouTube's terms and conditions, as did YouTube. Thus, YouTube shared revenue with ISIS, the creator and poster of the video[.]" Id.

Plaintiffs also allege that Google is a "content creator." While admitting that Google does not make the videos that are posted on YouTube, Plaintiffs allege that Google creates "new unique content" for viewers "by choosing which advertisement to combine with the posted video with knowledge about the viewer." Id. at ¶ 540. In that way, "Google is not simply passing along content...