Case 3:16-cv-00213-WHO Document 47 Filed 08/10/16 Page 1 of 15
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`TAMARA FIELDS, et al.,
`Plaintiffs,
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`v.
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`TWITTER, INC.,
`Defendant.
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`Case No. 16-cv-00213-WHO
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`ORDER GRANTING MOTION TO
`DISMISS
`Re: Dkt. No. 27
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`INTRODUCTION
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`In November 2015, Lloyd “Carl” Fields, Jr. and James Damon Creach were shot and killed
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`while working as United States government contractors at a law enforcement training center in
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`Amman, Jordan. The shooter was a Jordanian police officer who had been studying at the center.
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`In subsequent statements, the Islamic State of Iraq and Syria (“ISIS”) claimed responsibility for
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`the attack, describing the gunman as a “lone wolf.” Plaintiffs, the wife of Fields and the wife and
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`children of Creach, seek to hold defendant Twitter, Inc. (“Twitter”) liable under 18 U.S.C. §
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`2333(a), part of the Anti-Terrorism Act (“ATA”), on the theory that Twitter provided material
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`support to ISIS by allowing ISIS to sign up for and use Twitter accounts, and that this material
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`support was a proximate cause of the November 2015 shooting.
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`Twitter moves to dismiss on several grounds, including that plaintiffs’ claims are barred by
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`the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c). As horrific as these deaths were,
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`under the CDA Twitter cannot be treated as a publisher or speaker of ISIS’s hateful rhetoric and is
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`not liable under the facts alleged. Twitter’s motion to dismiss is GRANTED with leave to amend.
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`BACKGROUND
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`In 2015, Fields and Creach travelled to Jordan through their work as government
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`contractors. First Amended Complaint ¶¶ 71-72 (“FAC”) (Dkt. No. 21). Both had served as law
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`Case 3:16-cv-00213-WHO Document 47 Filed 08/10/16 Page 2 of 15
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`enforcement officers in the United States, and both were assigned to the International Police
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`Training Center (“IPTC”), a facility in Amman run by the United States Department of State. Id.
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`¶ 73.
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`One of the men studying at the IPTC was Anwar Abu Zaid, a Jordanian police captain. Id.
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`¶ 76. On November 9, 2015, Abu Zaid smuggled an assault rifle and two handguns into the IPTC
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`and shot and killed Fields, Creach, and three other individuals. Id. ¶ 78. ISIS subsequently
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`“claimed responsibility” for the attack, describing Abu Zaid as a “lone wolf” and stating,
`Do not provoke the Muslims more than this, especially recruited and
`supporters of the Islamic State. The more your aggression against
`the Muslims, the more our determination and revenge . . . [T]ime
`will turn thousands of supporters of the caliphate on Twitter and
`others to wolves.
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`Id. ¶ 80.
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`Plaintiffs do not allege that ISIS recruited or communicated with Abu Zaid over Twitter,
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`that ISIS or Abu Zaid used Twitter to plan, carry out, or raise funds for the attack, or that Abu
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`Zaid ever viewed ISIS-related content on Twitter or even had a Twitter account. The only
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`arguable connection between Abu Zaid and Twitter alleged in the FAC is that Abu Zaid’s brother
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`told reporters that Abu Zaid had been very moved by ISIS’s execution of Jordanian pilot Maaz al-
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`Kassasbeh in February 2015. Id. ¶ 84. After capturing al-Kassasbeh, ISIS launched a Twitter
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`campaign “to crowd source ideas for his method of execution.” Id. ISIS subsequently used a
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`Twitter account to distribute a 22-minute video of al-Kassasbeh’s horrific killing. Id. Plaintiffs do
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`not allege that Abu Zaid ever viewed the video, either on Twitter or by any other means.
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` Plaintiffs accuse Twitter of violating 18 U.S.C. § 2333(a), part of the ATA, by knowingly
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`providing material support to ISIS, in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2339B.
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`FAC ¶¶ 87-90 (Count 1, section 2339A), 91-94 (count 2, section 2339B). Section 2333(a)
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`provides:
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`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.
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`18 U.S.C. § 2333(a). Sections 2339A and 2339B prohibit the knowing provision of “material
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`support or resources” for terrorist activities or foreign terrorist organizations. 18 U.S.C. §§
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`2339A(a), 2339B(a)(1). The term “material support or resources” is defined to include “any
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`property, tangible or intangible, or service,” including “communications equipment.” 18 U.S.C.
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`§§ 2339A(b)(1), 2339B(g)(4).
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`Plaintiffs assert that Twitter’s “provision of material support to ISIS was a proximate cause
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`of [their] injur[ies].” FAC ¶¶ 89, 93. They allege that Twitter “has knowingly permitted . . . ISIS
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`to use its social network as a tool for spreading extremist propaganda, raising funds and attracting
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`new recruits,” and that “[t]his material support has been instrumental to the rise of ISIS and has
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`enabled it to carry out numerous terrorist attacks, including the November 9, 2015 shooting attack
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`in Amman, Jordan in which [Fields and Creach] were killed.” Id. ¶ 1.
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`Specifically, plaintiffs contend that ISIS uses Twitter to disseminate its official media
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`publications and other content, thereby “spread[ing] propaganda and incit[ing] fear [through]
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`graphic photos and videos of its terrorist feats.” Id. ¶¶ 35-36. ISIS also uses Twitter “to raise
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`funds for its terrorist activities,” id. ¶ 30, and to “post instructional guidelines and promotional
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`videos,” id. ¶ 23.
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`In addition, ISIS uses Twitter as a recruitment platform, “reach[ing] potential recruits by
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`maintaining accounts on Twitter so that individuals across the globe can reach out to [ISIS]
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`directly.” Id. ¶ 20. “After first contact, potential recruits and ISIS recruiters often communicate
`via Twitter’s Direct Messaging capabilities.”1 Id. Plaintiffs allege that “[t]hrough its use of
`Twitter, ISIS has recruited more than 30,000 foreign recruits over the last year.” Id. ¶ 29.
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`Plaintiffs cite a number of media reports from between 2011 and 2014 concerning ISIS’s
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`use of Twitter and Twitter’s “refusal to take any meaningful action to stop it.” Id. ¶¶ 48-56. They
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`also describe several attempts by members of the public and United States government to persuade
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`Twitter to crack down on ISIS’s use of its services. Id. ¶¶ 57-62. They allege that, while Twitter
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`has now instituted a rule prohibiting threats of violence and the promotion of terrorism, “many
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`1 Twitter’s Direct Messaging capabilities allow Twitter users to communicate privately through
`messages that can be seen only by the people included on them. FAC ¶ 20.
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`ISIS-themed accounts are still easily found on Twitter.” Id. ¶ 70.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain
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`statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in
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`order to “give the defendant fair notice of what the claim is and the grounds upon which it rests,”
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`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and alterations
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`omitted).
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`A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
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`12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
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`2001). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable
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`legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela
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`Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a complaint “need not contain
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`detailed factual allegations” to survive a Rule 12(b)(6) motion, “it must plead enough facts to state
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`a claim to relief that is plausible on its face.” Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th
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`Cir. 2009) (internal quotation marks and citations omitted). A claim is facially plausible when it
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`“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
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`In considering whether a claim satisfies this standard, the court must “accept factual
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`allegations in the complaint as true and construe the pleadings in the light most favorable to the
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`nonmoving party.” Manzarek v. St. Paul Fire & Marines Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
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`2008). However, “conclusory allegations of law and unwarranted inferences are insufficient to
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`avoid a Rule 12(b)(6) dismissal.” Cousins, 568 F.3d at 1067 (internal quotation marks omitted).
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`A court may “reject, as implausible, allegations that are too speculative to warrant further factual
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`development.” Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013).
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`DISCUSSION
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`Twitter moves to dismiss on multiple grounds, but its principal argument is that plaintiffs’
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`claims are barred by section 230(c), the “protection for ‘Good Samaritan’ blocking and screening
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`of offensive material” provision of the CDA. 47 U.S.C. § 230(c). Section 230(c) contains two
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`subsections, only the first of which, section 230(c)(1), is relevant here:
`(1) Treatment of publisher or speaker
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`No provider or user of an interactive computer service shall be
`treated as the publisher or speaker of any information provided by
`another information content provider.
`47 U.S.C. § 230(c)(1).
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`While the Ninth Circuit has described the reach of section 230(c)(1) in broad terms, stating
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`that it “immunizes providers of interactive computer services against liability arising from content
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`created by third parties,” the statute does not “create a lawless no-man’s-land on the internet.”
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`Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162, 1164
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`(9th Cir. 2008); see also Doe v. Internet Brands, Inc., No. 12-56638, 2016 WL 3067995, at *6 (9th
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`Cir. May 31, 2016) (noting that “the CDA does not declare a general immunity from liability
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`deriving from third-party content”) (internal quotation marks omitted). Rather, separated into its
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`elements, section 230(c)(1) protects from liability only (a) a provider or user of an interactive
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`computer service (b) that the plaintiff seeks to treat as a publisher or speaker (c) of information
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`provided by another information content provider. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100-
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`01 (9th Cir. 2009).
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`Plaintiffs do not dispute that Twitter is an interactive computer service provider, or that the
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`offending content highlighted in the FAC was provided by another information content provider.
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`They dispute only the second element of Twitter’s section 230(c)(1) defense, i.e., whether they
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`seek to treat Twitter as a publisher or speaker.
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`The prototypical cause of action seeking to treat an interactive computer service provider
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`as a publisher or speaker is defamation. See, e.g., Internet Brands, Inc., 2016 WL 3067995, at *4;
`Barnes, 570 F.3d at 1101.2 However, “the language of the statute does not limit its application to
`defamation cases.” Barnes, 570 F.3d at 1101. Courts have applied section 230(c)(1) against a
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`2 Congress enacted section 230(c)(1) in part to respond to a New York state court decision,
`Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995),
`finding that an internet service provider could be held liable for defamation based on third-party
`content posted on its message boards. See Internet Brands, 2016 WL 3067995, at *5; Barnes, 570
`F.3d at 1101; Roomates, 521 F.3d at 1163.
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`variety of claims, including negligent undertaking, id. at 1102-03, intentional assault, Klayman v.
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`Zuckerberg, 753 F.3d 1354, 1357-60 (D.C. Cir. 2014), and violation of anti-sex-trafficking laws,
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`Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18-24 (1st Cir. 2016). “[W]hat matters is not
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`the name of the cause of action – defamation versus negligence versus intentional infliction of
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`emotional distress – [but] whether the cause of action inherently requires the court to treat the
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`defendant as the publisher or speaker of content provided by another.” Barnes, 570 F.3d at 1101-
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`02 (internal quotation marks omitted). “[C]ourts must ask whether the duty that the plaintiff
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`alleges the defendant violated derives from the defendant’s status or conduct as a publisher or
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`speaker. If it does, section 230(c)(1) precludes liability.” Id. (internal quotation marks omitted).
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`Twitter contends that plaintiffs seek to hold it liable as the publisher of content created by
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`ISIS. Mot. at 14-16 (Dkt. No. 27). It highlights the opening paragraph of the FAC – i.e., that
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`Twitter “knowingly permitted [ISIS] to use its social network as a tool for spreading extremist
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`propaganda, raising funds and attracting new recruits,” FAC ¶ 1 – and the numerous descriptions
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`in the FAC of content created and disseminated by ISIS through the Twitter platform. According
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`to Twitter, plaintiffs’ claims are based on Twitter’s alleged failure to exclude this third-party
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`content, a quintessential responsibility of a publisher. See Mot. at 14-16; see also Klayman, 753
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`F.3d at 1359 (“the very essence of publishing is making the decision whether to print or retract a
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`given piece of content”); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (“decisions
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`relating to the monitoring, screening, and deletion of content [are] actions quintessentially related
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`to a publisher’s role”) (internal quotation marks omitted); Roommates, 521 F.3d at 1170-71
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`(noting that section 230(c)(1) applies to “any activity that can be boiled down to deciding whether
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`to exclude material that third parties seek to post online,” and that “determin[ing] whether or not
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`to prevent [the] posting” of material by third parties is “precisely the kind of activity” covered by
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`the statute); Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (“the exclusion of ‘publisher’
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`liability necessarily precludes liability for exercising the usual prerogative of publishers to choose
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`among proffered material”).
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`Plaintiffs make two arguments in response. First, they contend that their claims are not
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`based on “the contents of tweets, the issuing of tweets, or the failure to remove tweets,” but rather
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`on Twitter’s “provision of Twitter accounts to ISIS in the first place.” Oppo. at 3 (Dkt. No. 31).
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`In other words, “[b]ecause the creation of a Twitter account necessarily occurs before the issuing
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`of tweets from that account, and separately from the creation of published content, [Twitter’s]
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`violations of the ATA cannot be accurately characterized as publishing activity, but rather as the
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`provision of the means through which ISIS spreads its poison.” Id. at 4. Plaintiffs further explain
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`that
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`[Twitter’s] liability does not arise out of its publishing conduct, but
`rather its separate legal duty under the ATA not to provide terrorists
`with material support . . . Indeed, plaintiffs’ claims do not require
`publishing or speaking as a critical element. In no sense was
`[Twitter] acting as a publisher when it permitted ISIS members to
`sign up for and create these accounts. It was not reviewing, revising,
`or editing content. Nor was it deciding whether content should be
`publicly disseminated or withdrawn from the internet. Plaintiffs’
`claims are not based on a theory that any particular tweets from ISIS
`members should have been altered or restricted in any way.
`Plaintiffs’ claims under the ATA are not based on offending content
`at all. They are based on Twitter’s provision of material support to
`ISIS, which is separate and apart from – and antecedent to – the
`publication of any content. Even if ISIS had never issued a single
`tweet, [Twitter’s] provision of material support to ISIS in the form
`of Twitter accounts would constitute a violation of the ATA.
`Id. at 7-8 (internal quotation marks, citations, and alterations omitted).
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`Second, plaintiffs highlight their allegations regarding Twitter’s Direct Messaging
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`capabilities and assert that “[b]ecause these private messages are not published . . . , a lawsuit
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`based on their content is not barred by the CDA.” Id. at 2. Plaintiffs assert that publishing under
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`the CDA “necessarily involves the dissemination of information to the public” and thus does not
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`encompass the transmission of private messages through Direct Messaging. Id. at 9-11.
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`I.
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`PROVISION OF ACCOUNTS THEORY
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`There are at least three problems with plaintiffs’ provision of accounts theory. The first is
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`that it does not align with the allegations in the FAC. Those allegations describe a theory of
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`liability based on Twitter’s knowing failure to prevent ISIS from disseminating content through
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`the Twitter platform, not its mere provision of accounts to ISIS.
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`To be sure, there are some allegations in the FAC concerning Twitter’s provision of
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`accounts to ISIS. For example, plaintiffs highlight their allegations that: (1) “[s]ince first
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`appearing on Twitter in 2010, ISIS accounts on Twitter have grown at an astonishing rate,” FAC ¶
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`3; (2) as of December 2014, ISIS had approximately 70,000 Twitter accounts and posted at least
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`90 tweets per minute, id. ¶ 6; (3) Al-Furqan, ISIS’s official media wing, “maintained a . . . Twitter
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`page where it posted messages from ISIS leadership as well as videos and images of beheadings
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`and other brutal . . . executions to 19,000 followers,” id. ¶ 3; (4) Al-Hayat Media Center, ISIS’s
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`official public relations group, maintained “at least a half dozen Twitter accounts emphasizing the
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`recruitment of Westerners” and had nearly 20,000 followers as of June 2014, id. ¶ 4; (5) ISIS
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`“reaches potential recruits by maintaining accounts on Twitter so that individuals across the globe
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`may reach out to [it] directly,” id. ¶ 20; (6) “[e]ven when Twitter shuts down an ISIS-linked
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`account, it does nothing to stop it from springing right back up” with a different but nearly
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`identical name, id. ¶ 69; and (7) while Twitter has now instituted a rule prohibiting threats of
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`violence and the promotion of terrorism, “many ISIS-themed accounts are still easily found on
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`Twitter.com,” id. ¶ 70.
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`Plaintiffs characterize these allegations as “focus[ed] on [Twitter’s] provision of . . .
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`accounts to ISIS, not the content of the tweets.” Oppo. at 4. But with the exception of the
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`statement that “ISIS accounts on Twitter have grown at an astonishing rate,” FAC ¶ 3, all of the
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`allegations are accompanied by information regarding the ISIS-related content disseminated from
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`the accounts. Plaintiffs allege not just that ISIS had approximately 70,000 Twitter accounts, but
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`that ISIS used those accounts to post at least 90 tweets per minute, id. ¶ 6; not just that Al-Furqan
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`maintained a Twitter page, but that it maintained one “where it posted messages from ISIS
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`leadership as well as videos and images of beheadings and other brutal . . . executions to 19,000
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`followers,” id. ¶ 3; not just that Twitter failed to stop an ISIS-linked account from “springing right
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`back up,” but that an inflammatory message was tweeted from this account following the shooting
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`attack in San Bernadino, California in December 2015, id. ¶ 69.
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`The rest of the FAC is likewise riddled with detailed descriptions of ISIS-related messages,
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`images, and videos disseminated through Twitter and the harms allegedly caused by the
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`dissemination of that content. The FAC also includes a number of allegations specifically faulting
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`Twitter for failing to detect and prevent the dissemination of ISIS-related content through the
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`Twitter platform. See, e.g., id. ¶¶ 60 (Twitter “failed to respond to pleas to shut down clear
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`incitements to violence”), 66 (Twitter “does not actively monitor and will not censor user
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`content”). Indeed, the opening paragraph of the FAC could not be more clear about the content-
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`based theory underlying plaintiffs’ claims:
`Twitter has knowingly permitted . . . ISIS to use its social network
`as a tool for spreading extremist propaganda, raising funds and
`attracting new recruits. This material support has been instrumental
`to the rise of ISIS and has enabled it to carry out numerous terrorist
`attacks, including the November 9, 2015 shooting attack in Amman,
`Jordan in which [Fields and Creach] were killed.
`Id. ¶ 1 (emphasis added). In the following paragraph, plaintiffs allege that ISIS “has exploited
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`social media, most notoriously Twitter, to send its propaganda and messaging out to the world
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`and to draw in people vulnerable to radicalization,” and that ISIS has been able to use Twitter “to
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`exert an outsized impact on how the world perceives it, by disseminating images of graphic
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`violence (including the beheading of Western journalists and aid workers) . . . while using social
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`media to attract new recruits and inspire lone actor attacks.” Id. ¶ 2 (emphasis added).
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`In short, the theory of liability alleged in the FAC is not that Twitter provides material
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`support to ISIS by providing it with Twitter accounts, but that Twitter does so by “knowingly
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`permitt[ing] [ISIS] to use [those accounts] as a tool for spreading extremist propaganda, raising
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`funds, and attracting new recruits.” Id. ¶ 1. Plaintiffs do not dispute that this theory seeks to treat
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`Twitter as a publisher and is barred by section 230(c)(1). See, e.g., Oppo. at 2.
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`The second problem with plaintiffs’ provision of accounts theory is that, even if it were
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`alleged in the FAC, it would be just as barred by section 230(c)(1) as the theory plaintiffs’ actually
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`have alleged. As noted above, courts have repeatedly described publishing activity under section
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`230(c)(1) as including decisions about what third-party content may be posted online. See, e.g.,
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`Klayman, 753 F.3d at 1359 (“the very essence of publishing is making the decision whether to
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`print or retract a given piece of content”); MySpace, 528 F.3d at 420 (“decisions relating to the
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`monitoring, screening, and deletion of content [are] actions quintessentially related to a publisher’s
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`role”); Roommates.Com, 521 F.3d at 1170-71 (“determin[ing] whether or not to prevent [the]
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`posting” of third-party material online is “precisely the kind of activity” covered by the CDA);
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`Case 3:16-cv-00213-WHO Document 47 Filed 08/10/16 Page 10 of 15
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`Batzel, 333 F.3d at 1031 (“the exclusion of ‘publisher’ liability necessarily precludes liability for
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`exercising the usual prerogative of publishers to choose among proffered material”). Plaintiffs’
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`provision of accounts theory is slightly different, in that it is based on Twitter’s decisions about
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`whether particular third parties may have Twitter accounts, as opposed to what particular third-
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`party content may be posted. But it is not clear to me why this difference matters for the purposes
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`of section 230(c)(1). Under either theory, the alleged wrongdoing is the decision to permit third
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`parties to post content – it is just that under plaintiffs’ provision of accounts theory, Twitter would
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`be liable for granting permission to post (through the provision of Twitter accounts) instead of for
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`allowing postings that have already occurred. Plaintiffs do not explain why this difference means
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`that the provision of accounts theory seeks to treat Twitter as something other than a publisher of
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`third-party content, and I am not convinced that it does. Despite being based on Twitter accounts
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`instead of tweets, the theory is still based on Twitter’s alleged violation of a “duty . . . derive[d]
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`from [its] status or conduct as a publisher.” Barnes, 570 F.3d at 1102.
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`A recent First Circuit case, Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir.
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`2016), adds further support to this conclusion. The plaintiffs, each of whom had been a victim of
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`sex trafficking, sued the defendant website provider under the Trafficking Victims Protection
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`Reauthorization Act, asserting that the defendant had violated the statute through various “choices
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`[it] ha[d] made about the posting standards for advertisements,” including “the lack of controls on
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`the display of phone numbers, the option to anonymize email addresses, [and the] acceptance of
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`anonymous payments.” Id. at 20. The plaintiffs argued that “these choices are distinguishable
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`from publisher functions.” Id. The First Circuit disagreed, holding that section 230(c)(1) “extends
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`to the formulation of precisely the sort of website policies and practices [the plaintiffs] assail.” Id.
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`The court explained that decisions regarding the “structure and operation of [a] website” – such as
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`“permitt[ing] users to register under multiple screen names” and other decisions regarding
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`“features that are part and parcel of the overall design and operation of the website” – “reflect
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`choices about what content can appear on the website and in what form” and thus “fall within the
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`purview of traditional publisher functions.” Id. at 20-21.
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`Case 3:16-cv-00213-WHO Document 47 Filed 08/10/16 Page 11 of 15
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`Likewise, here, Twitter’s decisions to structure and operate itself as a “platform . . .
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`allow[ing] for the freedom of expression [of] hundreds of millions of people around the world,”
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`FAC ¶ 65, and to allow even ISIS to “sign up for accounts on its social network,” Oppo. at 3,
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`“reflect choices about what [third-party] content can appear on [Twitter] and in what form,”
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`Backpage, 817 F.3d at 21. Where such choices form the basis of a plaintiff’s claim, section
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`230(c)(1) applies. Id.
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`Plaintiffs attempt to liken the provision of accounts theory to the promissory estoppel
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`claim raised in Barnes v. Yahoo!, Inc., but the facts of that case are substantially different. The
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`plaintiff in Barnes sued Yahoo on the ground that she had relied on its promise that it would
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`remove explicit photographs her ex-boyfriend had posted online without her consent. 570 F.3d at
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`1098-99. The Ninth Circuit found that this promissory estoppel claim was not precluded by
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`section 230(c)(1) because the plaintiff did not “seek to hold Yahoo liable as a publisher or speaker
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`of third-party content, but rather as the counterparty to a contract, as a promisor who has
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`breached.” Id. at 1107. In other words, the plaintiff’s theory of liability was based not on
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`Yahoo’s “publishing conduct,” but rather on its “manifest intention to be legally obligated to do
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`something.” Id. By contrast, plaintiffs here assert no theory based on contract liability and allege
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`no promise made or breached by Twitter. Barnes does not indicate that the conduct underlying the
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`provision of accounts theory is beyond the scope of publishing conduct.
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`Plaintiffs also rely on Doe v. Internet Brands, Inc., which the Ninth Circuit decided shortly
`before oral argument in this case.3 Again, that case involves a substantially different set of facts
`from this one. The plaintiff there sued the defendant website operator for negligent failure to
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`warn, alleging that the defendant knowingly failed to warn her that two individuals were using the
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`website to identify and lure rape victims. 2016 WL 3067995, at *2-3. Although the plaintiff had
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`posted information on the website, the two individuals had not. Id. In holding that the plaintiff
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`did not seek to hold the defendant liable as a publisher of third-party content, the Ninth Circuit
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`emphasized that her negligent failure to warn claim
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`3 Twitter submitted a Statement of Recent Decision regarding the opinion. Dkt. No. 34.
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`Case 3:16-cv-00213-WHO Document 47 Filed 08/10/16 Page 12 of 15
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`would not require [the defendant] to remove any user content or
`otherwise affect how it publishes or monitors such content . . . Any
`alleged obligation to warn could have been satisfied without changes
`to the content posted by the website’s users and without conducting
`a detailed investigation. [The defendant] could have given a warning
`to . . . users, perhaps by posting a notice on the website or by
`informing users by email what it knew about the activities of [the
`individuals]. Posting or emailing such a warning could be deemed
`an act of publishing information, but section 230(c)(1) bars only
`liability that treats a website as a publisher or speaker of content
`provided by somebody else . . . A post or email warning that [the
`defendant] generated would
`involve only content
`that [the
`defendant] itself produced.
`Id. at *4. Plaintiffs’ provision of accounts theory, on the other hand, has nothing to do with
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`information Twitter itself should have posted online. Moreover, it would significantly affect
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`Twitter’s monitoring and publication of third-party content by effectively requiring Twitter to
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`police and restrict its provision of Twitter accounts. Internet Brands, like Barnes, does not help
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`plaintiffs’ case.
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`The third problem with the provision of accounts theory is that plaintiffs have not
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`adequately alleged causation. Although the parties dispute the exact formulation of the
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`appropriate causal test for civil liability under the ATA, they agree that the statute requires a
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`showing of proximate causation. See Mot. at 20-23; Oppo. at 13-16; see also 18 U.S.C. § 2333(a)
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`(authorizing a suit for damages by “[a]ny national of the United States injured . . . by reason of an
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`act of international terrorism”) (emphasis added); In re Terrorist Attacks on Sept. 11, 2001, 714
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`F.3d 118, 123-25 (2d Cir. 2013) (affirming a Rule 12(b)(6) dismissal of ATA claims for failure to
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`plausibly allege