SAN FRANCISCO (CN) --- A Ninth Circuit panel on Tuesday largely answered the question of whether social media networks can be held liable for terror attacks around the world: they can't. Unless the families of victims can show --- as they may have in one case --- that the tech giants knowingly allow terrorist groups to create and maintain public accounts and turning a deaf ear to complaints.
But the panel also said it's time for either the executive or legislative branches to do something about unregulated social media networks and the broad immunity provided them under the Communications Decency Act of 1996.
Multiple courts have shot down lawsuits seeking to hold social media giants liable for violent acts of terror. In 2018, the Ninth Circuit found Twitter cannot be liable for an Islamic State group attack that killed two U.S. contractors in Aman, Jordan, in 2015, citing the lack of a direct link between the use of Twitter’s service and the act of violence.
In March 2020, a three-judge Ninth Circuit panel heard arguments in three similar cases that had also been axed by federal judges. In one, the family of a 23-year-old woman killed in the 2015 terror attacks in Paris that left 130 others dead said Google played a role in her death. The panel also heard arguments in two other cases seeking to hold Google, Facebook and Twitter liable for the Reina night club attack in Istanbul that killed 38 people on Jan. 1, 2017, and a terror attack in San Bernardino, California, that left 14 people dead in December 2015.
The social media giants say section 230 of the Communications Decency Act shields them from liability for content posted to their platforms by third parties. But the plaintiffs advanced a novel theory: Each social network’s algorithms recommend videos to watch and users to follow, and those suggestions are content created by the social media companies for which they can be held liable.
But in a 79-page ruling issued Tuesday, the panel largely rejected the plaintiffs arguments and upheld dismissals of two of the cases. Writing for the panel, U.S. Circuit Judge Morgan Christen agreed section 230 bars the claims brought against YouTube parent Google in the death of the woman in the Paris attack.
"The Gonzalez complaint is devoid of any allegations that Google specifically targeted ISIS content, or designed its
website to encourage videos that further the terrorist group’s mission. Instead, the Gonzalez plaintiffs’ allegations suggest that Google provided a neutral platform that did not specify or prompt the type of content to be submitted, nor determine particular types of content its algorithms would promote. The Gonzalez plaintiffs concede Google’s policies expressly prohibited the content at issue," the Barack Obama appointee wrote.
Citing the Ninth Circuit's ruling in the 2019 appeal Dyroff v. Ultimate Software Group Inc. --- in which the owner of an online message board ducked liability for a user's overdose death after the man used the board to buy heroin --- Christen added, "Accordingly, the type of algorithm challenged here, without more, is indistinguishable from the one in Dyroff and it does not deprive Google of § 230 immunity."
The panel also affirmed dismissal of the case brought by the survivors of three victims of the San Bernardino mass shooting, noting that while the Islamic State group may have applauded the attack afterward the plaintiffs failed to show it had committed, planned or authorized the attack. As a result, the plaintiffs did not show the social media giants should be held liable under the Anti-Terrorism Act for aiding and abetting an act of international terrorism.
But the panel revived the case brought by the relatives of a man killed in the New Year's Day 2017 attack on the Reina nightclub in Istanbul, Turkey. According to the plaintiffs in that case, Twitter, Facebook and YouTube have allowed the Islamic State group to grow into the terrorism giant it is by giving its members effective communications platforms free of charge.
The federal judge in that case did not reach the question of section 230 immunity, finding instead the plaintiffs had not plausibly alleged violations of the Anti-Terrorism Act. And the plaintiffs only appealed the dismissal of their aiding-and-abetting claims, which the panel found they adequately shown --- at least to survive dismissal at this stage in the case.
"The Taamneh plaintiffs adequately allege that defendants knowingly assisted ISIS," Christen wrote for the panel. "Specifically, the first amended complaint alleges that ISIS depends on Twitter, Facebook, and YouTube to recruit individuals to join ISIS, to promote its terrorist agenda, to solicit donations, to threaten and intimidate civilian
populations, and to inspire violence and other terrorist activities. The Taamneh plaintiffs’ complaint alleges that
each defendant has been aware of ISIS’s use of their respective social media platforms for many years — through
media reports, statements from U.S. government officials, and threatened lawsuits — but have refused to take meaningful steps to prevent that use.
"The first amended complaint further alleges that Google shared revenue with ISIS by reviewing and approving
ISIS’s YouTube videos for monetization through the AdSense program. Taken as true, these allegations
sufficiently allege that defendants’ assistance to ISIS was knowing," Christen continued.
U.S. Circuit Judge Ronald Gould agreed the nightclub shooting case should be revived, but disagreed the dismissals of the other two cases should be affirmed. The Bill Clinton appointee said the lower courts had erred by dismissing plausible allegations without the benefit of discovery, and the Ninth Circuit should have played its role by reviving them.
And all three judges agreed with U.S. Circuit Judge Marsha Berzon's assessment of section 230 immunity: Something needs to be done about it.
"Although we are bound by Ninth Circuit precedent compelling the outcome in this case, I join the growing chorus of voices calling for a more limited reading of the scope of section 230 immunity," Berzon, also a Clinton appointee, wrote in concurrence.
"If not bound by circuit precedent I would hold that the term “publisher” under section 230 reaches only traditional activities of publication and distribution — such as deciding whether to publish, withdraw, or alter content — and does not include activities that promote or recommend content or connect content users to each other," she continued. "I urge this court to reconsider our precedent en banc to the extent that it holds that section 230 extends to the use of machine-learning algorithms to recommend content and connections to users."
And Gould advised that --- in the absence of self-regulation by social media companies --- the political branches of government should "seriously grapple with the issue of unregulated social media power being used to amplify or to distort views asserted by users, and sometimes even by hostile nations using social media to wage asymmetric warfare or to impair democracy."
He added: "But if Congress continues to sleep at the switch of social media regulation in the face of courts broadening what appears to have been its initial and literal language and expressed intention under section 230, then it must fall to the federal courts to consider rectifying those errors itself by providing remedies to those who are injured by dangerous and unreasonable conduct."
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