Taamneh v. Twitter, Inc.

• Decision Date: 29 October 2018
• Docket Number: Case No. 17-cv-04107-EMC
• Citation: 343 F.Supp.3d 904
• Court: U.S. District Court — Northern District of California
• Parties: Mehier TAAMNEH, et al., Plaintiffs, v. TWITTER, INC., et al., Defendants.

343 F.Supp.3d 904

Mehier TAAMNEH, et al., Plaintiffs,

v.TWITTER, INC., et al., Defendants.

Case No. 17-cv-04107-EMC

United States District Court, N.D. California.

Signed October 29, 2018

Keith L. Altman, Excolo Law, PLLC, Southfield, MI, for Plaintiffs.

Mark D. Flanagan, WilmerHale, David H. Kramer, Lauren Gallo White, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, Seth P. Waxman, Ari Holtzblatt, Patrick J. Carome, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Kristin A. Linsley, Esq., Joseph Abraham Gorman, Gibson, Dunn & Crutcher LLP, Ryan Paul McGinley-Stempel, Renne Public Law Group, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Docket No. 62

EDWARD M. CHEN, United States District Judge

Plaintiffs are relatives of Nawras Alassaf, a citizen of Jordan who was killed on January 7, 2017, when Abdulkadir Masharipov, an individual affiliated with ISIS, attacked the Reina nightclub in Istanbul, Turkey. Plaintiffs have sued three social media companies, namely, Twitter, Inc.; Google, Inc. (for its YouTube product); and Facebook, Inc. According to Plaintiffs, Defendants have, e.g. , provided material support to a terrorist or terrorist organization in violation of the Antiterrorism Act ("ATA"), see 18 U.S.C. §§ 2333(a), 2339A, 2339B, 2339C, and aided and abetted and/or conspired with a person who committed an act of international terrorism in violation of the Justice Against Sponsors of Terrorism Act ("JASTA"), which amended the ATA. See id. § 2333(d) ; see also 130 Stat. 852 (2016). Currently pending before the Court is Defendants' motion to dismiss Plaintiffs' first amended complaint ("FAC").

Having considered the parties' briefs and the oral argument of counsel, the Court hereby GRANTS Defendants' motion to dismiss.

I. FACTUAL & PROCEDURAL BACKGROUND

A. Allegations in FAC

In their FAC, Plaintiffs allege as follows.

ISIS uses Defendants' social media platforms "to promote and carry out its terrorist activities." FAC ¶ 11. For example, ISIS uses Defendants' platforms to do the following. See FAC ¶ 12.

• Recruit. See FAC ¶¶ 142-43 (alleging that "[o]ne of ISIS's primary uses of Defendants' sites is a recruitment platform, particularly to draw fighters from Western countries" and that ISIS recruiters and potential recruits "often communicate via Defendants' Direct Messaging capabilities"); FAC ¶ 144 (alleging that "ISIS members use Defendants to pose instructional guidelines and promotional videos referred to as ‘mujatweets’ ").

• Raise funds. See FAC ¶¶ 153, 155 (alleging that ISIS "uses Defendants to raise funds for its terrorist activities" – e.g. , calls for donations are made and donors are asked to contact ISIS).

• Spread propaganda. See FAC ¶ 168 (alleging that "Defendants' platforms enable ISIS to communicate its message directly to intended audiences without having to go through the filter of commercial media").

• Plan terror attacks and give instructions for terror attacks. See FAC ¶ 169; see also FAC ¶ 490 (alleging that "[o]ne of the stated goals of ISIS is to use social media including Defendants['] platforms to radicalize individuals to conduct attacks throughout the world, including the United States").

According to Plaintiffs, prior to the Reina attack, "Defendants refused to actively monitor [their] online social media networks" and "generally only reviewed ISIS's use of [their] services in response to third party complaints." FAC ¶ 402; see also FAC ¶¶ 410, 414. In some instances, even after being alerted, Defendants found that ISIS did not violate their policies and allowed the ISIS-affiliated accounts to remain active. See FAC ¶ 403. In other instances, after Defendants blocked or suspended ISIS-affiliated accounts, they "did not make substantial or sustained efforts to ensure that ISIS would not reestablish the accounts using new identifiers." FAC ¶ 404; see also FAC ¶ 469 (providing an example of a reestablished account).

Plaintiffs maintain that "Defendants have tools by which [they] can [easily] identify, flag, review, and remove ISIS accounts." FAC ¶ 463. See, e.g. , FAC ¶ 479 (alleging that "a content-neutral algorithm could be easily developed that would prohibit" reestablished accounts where the account holder's name was only minimally changed).

On January 1, 2017, ISIS engaged in a terrorist attack at the Reina nightclub in Istanbul, Turkey. Dozens of people were injured or killed. Plaintiffs' family member, Mr. Alassaf, was one of the persons who was killed. See FAC ¶ 325.

ISIS's use of Defendants' social media platforms to, e.g. , recruit, raise funds, spread propaganda, and plan and execute terror attacks, "has enabled [ISIS] to carry out or cause to be carried out, numerous terrorist attacks," including that on the Reina nightclub. FAC ¶ 12; see also FAC ¶ 331 (alleging that "[t]he stated goal of ISIS to use social media, including Defendants' platforms, services, computers, and communications equipment, to assist in carrying out their terrorist attacks throughout the world"); FAC ¶ 333 (alleging that "Defendants' services allow ISIS to carry out its terrorist activities, including recruiting, radicalizing, and instructing terrorists, raising funds, and creating fear").¹

The Reina attack was carried out by Abdulkadir Masharipov. See FAC ¶ 334. Mr. Masharipov was radicalized in the years leading up to the attack. See FAC ¶ 341. He was "radicalized by ISIS's use of social media." FAC ¶ 493.

Prior to the attack, there was a year-long coordination and communication between Mr. Masharipov and "Islamic State emir Abu Shuhada." FAC ¶ 334; see also FAC ¶ 339 (alleging that, during his interrogation, Mr. Masharipov stated that he was given orders by an Islamic State emir "to travel to Turkey to establish himself, along with his wife and two children, and await further orders"). Approximately a week before the attack, Mr. Shuhada directed Mr. Masharipov to launch the attack. See FAC ¶ 343. At some point, ISIS gave Mr. Masharipov footage from inside the Reina nightclub which he "viewed ‘over and over’ to memorize the floor plan ... and plan his attack." FAC ¶ 371.

There is no indication, however, that ISIS used a social media platform to give Mr. Masharipov that footage. Nor do Plaintiffs allege that Mr. Masharipov used any of Defendants' platforms to communicate with ISIS.

B. Plaintiffs' Theories of Liability

Plaintiffs assert that Defendants provide material support to ISIS, or aid and abet ISIS, in the following ways.

• "Plaintiffs' claims are based not upon the content of ISIS's social media postings, but upon Defendants['] provision of the infrastructure which provides material support to ISIS." FAC ¶ 30 (emphasis added). For example, "[t]hrough Defendants' services, Defendants make potential ISIS recruits, members, and leaders[ ] available to other ISIS operatives, thus providing personnel to ISIS itself." FAC ¶ 401.

• In addition, Plaintiffs assert that Defendants create "unique content by combining the ISIS postings with advertisements selected by Defendants based upon ISIS's postings and the viewer looking at the postings and the advertisements." FAC ¶ 32; see also FAC ¶ 443 (making general allegations about targeted advertising); FAC ¶ 424 (making allegations about Google); FAC ¶ 438 (making allegations about Twitter); FAC ¶ 439 (making allegations about Facebook). Defendants profit from the targeted advertising. See FAC ¶¶ 391-92 (alleging that "each Defendant places ads on ISIS postings and derives revenue from the ad placement" and that the ads are not placed randomly; rather, "they are targeted to the viewer using [a Defendant's] knowledge about the viewer as well as information about the content being viewed").

• Google has gone one step further and shared revenue earned from advertising with ISIS. See FAC ¶¶ 31, 158, 427, 432 (alleging, inter alia , that "YouTube approves of ISIS videos allowing for ads to be placed with ISIS videos" and "YouTube earns revenues from these advertisements and shares a portion of the proceeds with ISIS").

• In addition, Google "recommends content to users based upon the content and what is known about the viewer. Google has [thus] recommended ISIS videos to users." FAC ¶ 445 (emphasis added; also alleging on information and belief that "this is a common occurrence"). Twitter and Facebook make similar suggestions to a user or viewer. See FAC ¶ 459. "Effectively, Defendants serve as a broker or matchmaker between like-minded people, introducing users to other users and videos that they will be interested in based on the video and account information and characteristics." FAC ¶ 460.

• Finally, each Defendant enables an account holder to distribute information through his or her social network (e.g. , followers, friends, or subscribers or timeline or news feeds) on the social media platform maintained by each Defendant. See FAC ¶¶ 453-54.

C. Causes of Action

Based on, inter alia , the above allegations, Plaintiffs assert the following causes of action:

(1) Liability for aiding and abetting acts of international terrorism pursuant to 18 U.S.C. § 2333(a) and (d).

(2) Liability for conspiring in furtherance of acts of international terrorism pursuant to 18 U.S.C. § 2333(a) and (d).

(3) Provision of material support to terrorists in violation of 18 U.S.C. § 2339A and § 2333(a).

(4) Provision of material support and resources to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1) and § 2333(a).

(5) Negligent infliction of emotional distress.

(6) Wrongful death.

(7) Concealment of material support and resources to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339C(c) and § 2333(a).

(8) Provision of funds, goods, or services to or for the benefit of specially designated global terrorists in violation of Executive Order No. 13224, 31 C.F.R. Part 594, and 50 U.S.C. § 1705.

II. DISCUSSION

A. Legal Standard

To survive a [12(b)(6) ] motion to dismiss for failure to state a claim after the

...