Gonzalez v. Google, Inc.

Decision Date23 October 2017
Docket NumberCase No. 16–cv–03282–DMR
Citation282 F.Supp.3d 1150
Parties Reynaldo GONZALEZ, et al., Plaintiffs, v. GOOGLE, INC., et al., Defendants.
CourtU.S. District Court — Northern District of California

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, Diane Young Park, Marshall Neil Solarz, Weinstock Manion, A Law Corporation, Los Angeles, CA, for Plaintiffs.

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

ORDER ON DEFENDANT'S MOTION TO DISMISS

This case arises from the tragic death of Nohemi Gonzalez, who 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. Plaintiffs contend that Google has knowingly provided material support to ISIS in the form of its YouTube platform, and that ISIS has used YouTube as a tool to commit terrorism. According to Plaintiffs, Google's material support was a proximate cause of Gonzalez's death.

Google moves to dismiss the second amended complaint ("SAC"), primarily arguing that all of Plaintiffs' claims are 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. The court held a hearing on July 27, 2017. For the following reasons, Google's motion is granted. The SAC is dismissed with leave to amend.

I. BACKGROUND

Plaintiffs make the following allegations in the SAC, all of which are taken as true for purposes of this motion.1 In the fall of 2015, Nohemi Gonzalez was a 26–year old California State University student studying abroad in Paris, France. [Docket No. 95 (SAC) ¶ 408.] 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 ¶¶ 412–414. 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 ¶¶ 342–370. 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 ¶¶ 131, 138, 373–378, 382–390. Plaintiffs allege that twelve individual ISIS terrorists were directly involved in the Paris attacks, including the three La Belle Équipe shooters. Id. at ¶ 247.

The SAC 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 ¶¶ 60–127. 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 ¶ 139. 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 ¶¶ 140–146. 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 ¶ 148. Plaintiffs 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 ¶¶ 104–105, 120, 172, 175, 188, 190–92, 205–226, 274–279, 296–298, 306–309. 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 ¶ 193.

The SAC details the planning and execution of the Paris attacks. Id. at ¶¶ 240–372. 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 ¶¶ 242–244. 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 ¶¶ 241, 244. 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 ¶¶ 247, 296, 302. 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 ¶¶ 296–298, 302.

The SAC 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 ¶ 134. 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 ¶ 464. 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 ¶¶ 470–471. "[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 ¶ 470.

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 ¶¶ 448–449. 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 ¶ 452. 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. 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 ¶¶ 456–457. The SAC includes a screen shot of an example of Google-placed targeted ads alongside what Plaintiffs describe as "an ISIS video" on YouTube. Id. at ¶ 458.

Plaintiffs 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 ¶ 461. In that way, "Google is not simply passing along content created by third parties"; instead, "Google incorporates ISIS posted videos along with advertisements matched to the viewer to create new content for which Google earns revenue." Id. at ¶ 462.

Plaintiffs allege that Google has the ability to deny its YouTube-related services to ISIS, but refuses to do so. Although Google has suspended or blocked certain ISIS-related accounts at various times, prior to the Paris attacks, Google did not make "substantial or sustained efforts to ensure that ISIS would not re-establish the accounts using new identifiers." Id . at ¶ 429. Even though Google has tools to identify, flag, review, and remove ISIS YouTube accounts, it allows the accounts of "those who run afoul of its policies ... to be quickly regenerated." Id. at ¶ 475.

Based on these allegations, Plaintiffs contend that Google violated federal prohibitions by providing material support or resources for acts of international terrorism. They bring four claims for relief under the ATA's civil remedy provisions, 18 U.S.C. § 2333(a) and (d). Section 2333(a) provides for a private right of action for damages sustained in an act of international terrorism:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

18 U.S.C. § 2333(a). Section 2333(d) provides that liability attaches to those who aid or abet an act of international terrorism by knowingly providing substantial assistance:

In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist
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