`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`ALI AL-AHMED,
`
`Plaintiff,
`
`v.
`
`TWITTER, INC., et al.,
`
`Case No. 21-cv-08017-EMC
`
`
`ORDER GRANTING DEFENDANT’S
`MOTION TO DISMISS
`
`Docket No. 30
`
`
`
`
`
`Defendants.
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`Plaintiff Al-Ahmed is a critic of the Kingdom of Saudi Arabia (“KSA”) and has been
`
`granted asylum in the United States. Between 2013–2015, two of Twitter’s (now former)
`
`employees, Defendants Ahmad Abouammo and Ali Hamad A. Alzabarah, accessed user
`
`information on Al-Ahmed without authorization and provided it to KSA government officials. Al-
`
`Ahmed filed this lawsuit against Abouammo, Alzabarah, and Twitter for violating the Electronics
`
`Communications Privacy Act (“EPCA”), violating the Computer Fraud and Abuse Act (“CFAA”),
`
`violating the Stored Communications Act (“SCA”), violating California’s Unfair Competition
`
`Law (“UCL”), breach of contract, intrusion upon seclusion, unjust enrichment, promissory
`
`estoppel, negligence, negligent hiring, supervision, and retention, civil conspiracy, and replevin.
`
`Al-Ahmed alleges that his Twitter account was hacked, which led to the KSA targeting him and
`
`those around him. Furthermore, he alleges that Twitter’s suspension of his account in 2018
`
`punishes him—the victim—and ratifies its former employees’ conduct. Pending in this Court is
`
`Twitter’s motion to dismiss Al-Ahmed’s Complaint. The Court GRANTS Twitter’s motion for
`
`the reasons stated below.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 2 of 32
`
`
`
`II.
`
`BACKGROUND
`
`Al-Ahmed alleges as follows in the Complaint:
`
`Al-Ahmed is one of the leading critics of the KSA who resides and has been granted
`
`asylum in the United States. Docket No. 1 (“Complaint”) at 2. Between August 2013 and
`
`December 2015, Twitter user information was accessed without authorization and provided to
`
`KSA government officials, which Twitter failed to detect for a period of time spanning over a
`
`year. Id. at 4, 7. Al-Ahmed’s Arabic Twitter account, which has over 36,000 followers
`
`worldwide, was one of the accounts breached during this time. Id. at 6. Al-Ahmed contends that
`
`his private information, including his personal phone number and email address, which he never
`
`made publicly available, was compromised due to Twitter’s conduct. Id. at 16. His account also
`
`had confidential information provided by his followers and journalistic sources. Id. at 3. Al-
`
`Ahmed alleges his private information was used by the KSA to silence him by stripping him of his
`
`Saudi nationality, keeping him under surveillance, and attempting to kidnap and kill him on
`
`multiple occasions. Id. at 6–7. His followers on Twitter, or those who otherwise contacted him
`
`using Twitter, have disappeared, been arrested, or have been executed. Id. at 8. According to him,
`
`“the KSA managed to fully silence [him] when they . . . suspend[ed his] Arabic Twitter account,
`
`without explanation, warning, or justification.” Id. at 8.
`
`On November 19, 2019, Abouammo and Alzabarah were indicted for acting as agents for
`
`the government of Saudi Arabia while employed at Twitter. Id. at 4. Abouammo was the Media
`
`Partnerships Manager responsible for the Middle East and North Africa region at Twitter. Id. at 3.
`
`Alzabarah was a Site Reliability Engineer whose responsibility was maintaining Twitter’s
`
`hardware and software to ensure uninterrupted service. Id.
`
`A.
`
`Twitter’s Notice
`
`On or about December 11, 2015, Twitter sent the following notice to a small group of its
`
`users:
`
`
`Dear @{{screen_name}}, As a precaution, we are alerting you that
`your Twitter account is one of a small group of accounts that
`may have been targeted by state-sponsored actors. We believe
`that these actors (possibly associated with a government) may
`have been trying to obtain information such as email addresses,
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 3 of 32
`
`
`
`IP addresses, and/or phone numbers.
`
`At this time, we have no evidence they obtained your account
`information, but we’re actively investigating this matter. We wish
`we had more we could share, but we don’t have any additional
`information we can provide at this time.
`
`It’s possible your account may not have been an intended target of
`the suspected activity, but we wanted to alert you as soon as
`possible. We recognize that this may be of particular concern if you
`choose to Tweet using a pseudonym. For tips on protecting your
`identity online, you may want to visit the Tor Project or EFF’s
`Protecting Yourself on Social Networks.
`
`
`Id. at 14. Al-Ahmed alleges that this notice was insufficient because it failed to indicate that these
`
`state-sponsored actors committed these data breaches while they were located on Twitter’s
`
`premises, employed by Twitter, using Twitter’s resources, at the direction of Twitter. Id. at 15.
`
`B.
`
`Twitter’s Actions in Aid of the KSA
`
`Al-Ahmed alleges that Twitter provided the two employees with access to Twitter’s
`
`resources with the full knowledge that they were improperly accessing user data, helped them
`
`provide the information to the KSA, and helped them cover up their tracks by purging its internal
`
`database of incriminating evidence. Id. at 7. Al-Ahmed also alleges that Twitter’s Privacy Policy
`
`suggests that Tweets may be protected by opting to allow only Twitter followers to see them
`
`through account settings, which created an illusion of security and safety. Id. at 10. Al-Ahmed
`
`lastly alleges that Twitter failed to safeguard user data, evidenced by its disclosure to the
`
`Securities and Exchange Commission in 2020. The disclosure stated that Twitter received a draft
`
`complaint from the Federal Trade Commission alleging “violations…[r]elate[d] to the Company’s
`
`use of phone number and/or email address data provided for safety and security purposes
`
`[ostensibly for targeted advertising] during periods between 2013 and 2019.” Id. at 12. Thus,
`
`Twitter negligently failed to implement policies, practices, and safeguards that would have
`
`prevented the acts of its former employees. Id. at 37.
`
`C.
`
`Twitter’s Relationship with the KSA
`
`In 2011, Saudi Prince Alwaleed Bin Talal purchased $300 million worth of stock in
`
`Twitter. Id. In 2015, Bin Talal made an additional investment, owning 5.2% of the company,
`
`more than Twitter’s founder and CEO. Id. at 2. Bin Talal later signed over many of his assets to
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 4 of 32
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Crown Prince Bin Salman. Id. Thus, Al-Ahmed alleges that Twitter’s acts were designed to
`
`appease Bin Salman, a significant investor. Id. According to Al-Ahmed, Bader al-Asaker is the
`
`head of Bin Salman’s affairs and the “Saudi mastermind” behind the Twitter spy scandal. Id. at
`
`13. He claims that Asaker is “Foreign Official-1” in the United States Attorneys Offices’
`
`indictment against Abouammo and Alzabarah. Id. Al-Ahmed alleges that Asaker provided
`
`Abouammo and Alzabarah with “gifts, cash payments, and promises of future employment in
`
`exchange for nonpublic information about Twitter uses, which constituted valuable property…”
`
`Id. Furthermore, Twitter CEO Jack Dorsey met with both Asaker and Bin Salman at Twitter’s
`
`headquarters on June 25, 2016, and at least one additional time in Riyadh thereafter. Id. at 13.
`
`Dorsey and Asaker follow each other on Twitter. Id.
`
`D.
`
`Twitter’s Suspension of Al-Ahmed’s Account
`
`In 2018, Al-Ahmed’s Twitter account was suspended, preventing access to his followers.
`
`Id. at 8. Al-Ahmed alleges that, as a result, he lost significant revenue and earning potential
`
`related to his work as a journalist, as much of his work was contingent on his online presence. Id.
`
`at 16. Al-Ahmed further alleges that his appeal of the suspension failed despite Alzabarah and
`
`Abouammo’s indictment. Id. at 8. According to Al-Ahmed, preventing access to his account and
`
`the list of his followers, punishes the victim and “ratifie[s] the actions of its supposedly errant
`
`employees and show[s] [Twitter’s] continuing allegiance to the KSA.” Id.
`
`III.
`
`LEGAL STANDARD
`
`A. Motion to Dismiss
`
`Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain
`
`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
`
`complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R.
`
`Civ. P. 12(b)(6). To overcome a Fed. R. Civ. P. 12(b)(6) motion to dismiss after the Supreme
`
`Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v.
`
`Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . .
`
`suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d
`
`1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and
`
`4
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 5 of 32
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.
`
`Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a
`
`complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient
`
`allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
`
`effectively.” Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap
`
`Co., 751 F.3d 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads
`
`factual content that allows the court to draw the reasonable inference that the Defendant is liable
`
`for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
`
`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
`
`unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
`
`B.
`
`Judicial Notice
`
`Under Federal Rule of Evidence 201, “[a] judicially noticed fact must be one not subject to
`
`reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the
`
`trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy
`
`cannot reasonably be questioned.” Fed. R. Evid. 201. Courts may take judicial notice of
`
`“undisputed matters of public record,” but generally may not take judicial notice of “disputed facts
`
`stated in public records.” Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). Facts
`
`subject to judicial notice may be considered on a motion to dismiss. Mullis v. U.S. Bankr. Ct., 828
`
`F.2d 1385, 1388 (9th Cir. 1987). “Proper subjects of judicial notice when ruling on a motion to
`
`dismiss include . . . publically accessible websites[.]” Perkins v. LinkedIn Corp., 53 F. Supp. 3d
`
`1190, 1204 (N.D. Cal. 2014) (citing Caldwell v. Caldwell, No. 05–4166, 2006 WL 618511, at *4
`
`(N.D. Cal. Mar. 13, 2006); Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965–66 (C.D.
`
`Cal.2005).
`
`The doctrine of incorporation by reference is distinct from judicial notice. The doctrine
`
`“permits a district court to consider documents ‘whose contents are alleged in a complaint and
`
`whose authenticity no party questions, but which are not physically attached to the . . .
`
`pleadings.’” In re Silicon Graphics Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (quoting Branch
`
`v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994)). The court may incorporate such a document “if the
`
`5
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 6 of 32
`
`
`
`plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s
`
`claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The Ninth Circuit in Knievel
`
`extended this doctrine to apply in some circumstances where the plaintiff does not explicitly allege
`
`the contents of the document in the complaint, but the defendant was allowed to attach the
`
`document in its motion to dismiss. In order for this extension to apply, the plaintiff’s claim must
`
`depend on the contents of the document and the parties must not dispute the authenticity of the
`
`document. Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) (allowing the introduction of a
`
`website’s contents that were seen alongside the disputed contents in a defamation suit that were
`
`not disputed for authenticity).
`
`Therefore, the requirements for the documents that are relied on by the complaint to be
`
`incorporated is that: “(1) the complaint refers to the document; (2) the document is central to the
`
`plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6)
`
`motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (internal citations omitted). Such
`
`documents may be considered as “part of the complaint,” without converting the Rule 12(b)(6)
`
`motion into one for summary judgment. Ritchie, 342 F.3d at 908. The contents of such
`
`documents may be assumed to be true for purposes of deciding a Rule 12(b)(6) motion. Id.
`
`A.
`
`Twitter’s Request for Incorporation by Reference/Judicial Notice
`
`IV.
`
`DISCUSSION
`
`Twitter requests the Court to incorporate by reference or judicially notice the following
`
`documents:
`
`a. Twitter’s December 11, 2015 email and in-app notices. Docket No. 29-5
`
`(“Srinivasan Declaration”), Ex. A (“Twitter Employee Declaration”), Ex. 1–2.
`
`b. Twitter’s records reflecting that the December 11, 2015 email notice and in-app
`
`notice were sent to Al-Ahmed. Twitter Employee Declaration, Ex. 3–4.
`
`c. A Twitter message sent by Al-Ahmed through his Twitter account, and a certified
`
`English translation of that message. Twitter Employee Declaration, Ex. 5.
`
`d. A screenshot of Al-Ahmed’s active Twitter account. Srinivasan Declaration, Ex.
`
`B.
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 7 of 32
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`e. A publicly available Twitter post made by Ali Al-Ahmed that lists his phone
`
`number. Srinivasan Declaration, Ex. C.
`
`f. A publicly available press release listing Al-Ahmed’s phone number and email
`
`address. Srinivasan Declaration, Ex. D.
`
`g. Twitter’s current and prior terms of service. Srinivasan Declaration, Ex. E; Twitter
`
`Employee Declaration, Ex. 6A–6N.
`
`Al-Ahmed does not directly respond to Twitter’s request for incorporation by reference
`
`and judicial notice.
`
`1.
`
`Incorporation by Reference
`
`Twitter seeks to incorporate by reference five exhibits. See Docket No. 31. Exhibits 1 and
`
`2 are notifications Twitter sent to potentially affected Twitter users regarding the unauthorized
`
`access of Twitter accounts. Id. at 4. Exhibits 1 and 2 may be incorporated by reference because
`
`they are referenced extensively in the Complaint and are integral to Al-Ahmed’s claims. Ritchie,
`
`342 F.3d at 908 (“Even if a document is not attached to a complaint, it may be incorporated by
`
`reference into a complaint if the plaintiff refers extensively to the document or the document
`
`forms the basis of the plaintiff’s claim.”). The Complaint directly quotes the contents of these
`
`notifications and argues their sufficiency. Docket No. 31 at 5. See, e.g., Complaint at 14, 15;
`
`Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (“Plaintiff directly quoted
`
`the material . . . thereby incorporating [the material] into the Complaint.”).
`
`Exhibits 3 and 4 are files maintained in Twitter’s records that identify the user accounts
`
`that received the notifications. Docket No. 31 at 5. The Complaint does not discuss Al-Ahmed’s
`
`dispute that he received notice in the Complaint. However, the issue is somewhat hinted at, as Al-
`
`Ahmed alleges that “Twitter purportedly sent a notice[.]” Complaint at 14. Al-Ahmed does not
`
`dispute that Twitter sent these notices to some people, but disputes that he received notice from
`
`Twitter in his Opposition. Opp’n at 4–5, Ex. A at 2. Twitter argues that “where a plaintiff claims
`
`he or she never received a notification, and the defendant provides evidence that the defendant did
`
`in fact notify the plaintiff, defendant’s evidence may be incorporated by reference to prevent the
`
`plaintiff from deliberately omitting or contradicting by bald allegation the records reflecting this
`
`7
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 8 of 32
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`information.” See Docket No. 38 (“Reply”) at 4–5. These notification lists may be incorporated
`
`by reference because “the notifications submitted by [Twitter] are crucial to [Al-Ahmed’s] claims
`
`that [he] never received notifications . . . [Al-Ahmed], again, do not raise in [his] Opposition any
`
`dispute as to the authenticity of these notifications.” Starks v. Geico Indem. Co., No. CV-15-
`
`5771-MWF (PJW), 2015 WL 12942282, at *2 (C.D. Cal. Nov. 10, 2015) (incorporating by
`
`reference the notifications allegedly not received by the plaintiff). Accordingly, these exhibits
`
`may be treated as part of the Complaint under the incorporation by reference doctrine.
`
`Exhibit 5 consists of an Arabic message transmitted by Al-Ahmed from his Twitter
`
`account as well as an English translation of the message. Id. at 16. Twitter claims that this
`
`message contained hateful and abusive language. Id. at 6–7. Twitter argues that this message led
`
`to the suspension of Al-Ahmed’s Twitter account and is thus integral to his Complaint. Id.
`
`However, the Complaint makes no reference to this message and Al-Ahmed’s claims are not
`
`dependent on the existence of this message. Although Twitter cites two cases for the proposition
`
`that Al-Ahmed is not allowed to plead around the very message he wrote that led to his
`
`suspension, these cases are distinguishable.
`
`Twitter first cites Chyba v. Green Tree Servicing, LLC., in which the plaintiff alleged that a
`
`loan service provider failed to provide her with written notices related to her loan. No. 12-CV-
`
`2530-H (WMC), 2012 WL 12874929, at *1–*2 (S.D. Cal. Dec. 12, 2012). The defendant
`
`submitted written correspondences regarding the validation and collection of the debt. Id. The
`
`court incorporated the letter because “[a]lthough not specifically referenced in her complaint,
`
`Plaintiff’s claims depend on this written correspondence.” Id. at *2–*3. Here, Al-Ahmed’s
`
`claims do not depend on Exhibit 5. This allegedly hateful message is integral not to Al-Ahmed’s
`
`allegations but to Twitter’s defense of them. See Jones v. Raymer Metals, Inc., No. CV-17-00546-
`
`BROMRWX, 2017 WL 10560488, at *4 (C.D. Cal. May 31, 2017) (distinguishing Chyba because
`
`while “[w]ritten correspondence between parties” may be considered under the incorporation by
`
`reference doctrine . . . Plaintiff does not appear to rely on Defendant’s letter as a basis for her
`
`claims.”).
`
`Next, Al-Ahmed cites Knievel to argue that exhibits that provide context may be
`
`8
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 9 of 32
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`incorporated by reference. Id. (citing Knievel, 393 F.3d at 1076). In Knievel, the plaintiffs alleged
`
`that a photograph and associated caption published on the defendant’s website were defamatory.
`
`Knievel, 393 F.3d at 1070. The plaintiff attached a photograph of the webpage to the complaint
`
`but omitted surrounding web pages that gave context to the photograph. Id. at 1076. The Ninth
`
`Circuit incorporated by reference the surrounding pages because “a viewer accessing the Knievel
`
`photograph must also access the surrounding pages” and a court must also take into account “all
`
`parts of the communication that are ordinarily heard or read with [a statement].” Id. Here, there is
`
`no issue with the completeness of an otherwise admissible document. It is a new document
`
`altogether.
`
`In addition, Exhibit 5’s authenticity seems to be disputed by Al-Ahmed. Al-Ahmed states
`
`in his declaration that he does not recognize this statement in Exhibit 5 and that it is not his
`
`statement. Docket No. 32 (“Opp’n”), Exhibit A, at 3. Al-Ahmed also states that its translation is
`
`“entirely inaccurate.” Id. Documents under dispute cannot be incorporated by reference. See
`
`Knievel, 393 F.3d at 1068. Accordingly, Exhibit 5 may not be incorporated by reference.
`
`For the foregoing reasons, the Court GRANTS Twitter’s motion to incorporate by
`
`reference Exhibit 1 and 2 but DENIES the motion for Exhibits 3–5.
`
`2.
`
`Judicial Notice of Public Documents
`
`Twitter also asks the Court to judicially notice publicly available documents. Exhibits B,
`
`C, and D to the Srinivasan Declaration are copies of the landing page of Al-Ahmed’s Twitter
`
`account, a public post on the account, and a press release page, which are all available publicly.
`
`“Because the exhibits Plaintiff seeks to have judicially noticed are publicly accessible webpages
`
`and Defendant does not oppose authentication of the websites[,]” these exhibits are properly
`
`subject to judicial notice. Lindora, LLC v. Limitless Longevity LLC, No. 15-CV-2847-JAH
`
`(KSC), 2016 WL 6804443, at *3 (S.D. Cal. Sept. 29, 2016); Perkins v. LinkedIn Corp., 53 F.
`
`Supp. 3d 1190, 1204 (N.D. Cal. 2014) (noting that publicly accessible websites are subject to
`
`judicial notice).
`
`Similarly, Exhibit E to the Srinivasan Declaration and Exhibits 6A–6N to the Twitter
`
`Employee Declaration are Twitter’s terms of service (“TOS”) in effect from September 2009 to
`
`9
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 10 of 32
`
`
`
`the present, and also publicly available on Twitter’s webpage. Accordingly, they also are properly
`
`subject to judicial notice. See Opperman v. Path, Inc., 205 F. Supp. 3d 1064, 1068-1069 n.3 (N.D.
`
`Cal. 2016) (taking judicial notice of Yelp’s privacy policies); Datel Holdings Ltd. v. Microsoft
`
`Corp., 712 F. Supp. 2d 974, 983–84 (N.D. Cal. 2010) (taking judicial notice of Xbox software
`
`license and terms of service). Accordingly, the Court GRANTS Twitter’s motion to judicially
`
`notice Exhibits B, C, D, and 6A–6N.1
`
`B.
`
`The Abdulaziz Case
`
`Throughout the motion, Twitter cites a case with substantially similar facts and allegations
`
`that was filed in this district and dismissed three times. See generally Abdulaziz v. Twitter, Inc.,
`
`2020 WL 6947929 (Aug. 12, 2020) (“Abdulaziz I”); Abdulaziz v. Twitter, Inc., No. 19-CV-06694-
`
`LB, 2021 WL 633812, at *7 (N.D. Cal. Feb. 18, 2021) (“Abdulaziz II”); Abdulaziz v. Twitter, Inc.,
`
`No. 19-CV-06694-LB, 2021 WL 2986400, at *1 (N.D. Cal. July 15, 2021) (“Abdulaziz III”). This
`
`case was brought by another Saudi dissenter and pertains to the same 2013–2015 hacking of the
`
`Twitter accounts by the same employees. The plaintiff had alleged that after his Twitter data was
`
`hacked, Saudi agents used malware to hack his phone and then targeted his family. Id. The
`
`plaintiff similarly alleged violations of the SCA, California’s UCL, invasion of privacy,
`
`misrepresentation, negligence, and negligent hiring, supervision, or retention of employees. See
`
`Abdulaziz I, 2020 WL 6947929, *1. Abdulaziz I found that the plaintiff lacked Article III standing
`
`because he failed to show how the compromise of the Twitter data caused the harm to his family
`
`and friends, especially when he was already an outspoken dissident who suffered persecution prior
`
`to the hacking of his Twitter account. Id. at *6. The court also found that Twitter’s December
`
`2015 notice barred the plaintiff’s claims due to the statute of limitations and defeated any claim
`
`that Twitter ratified its employee’s conduct. Id. at *7.
`
`In Abdulaziz II, the plaintiff alleged negligent supervision and retention of its employees
`
`and negligence. The court again held that the plaintiff lacked standing due to lack of causation
`
`
`1 Al-Ahmed refers to Exhibit C as a private message in relation to his Privacy Act claim in the
`Complaint. Nevertheless, this is irrelevant to the judicial notice question because the purported
`“private message” is publicly available.
`
`10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 11 of 32
`
`
`
`and that the December 2015 notice was sufficient notice to trigger the statute of limitations under
`
`California’s discovery rule. 2021 WL 633812, at *7. In Abdulaziz III, the court dismissed the
`
`case with prejudice for lack of causation required for Article III standing. 2021 WL 2986400, at
`
`*3. Twitter largely relies on this case to argue that Al-Ahmed lacks standing and that the statute
`
`of limitations period has passed.
`
`C.
`
`Article III Standing
`
`Under Rule 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction.
`
`“[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction under
`
`[Rule] 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). The “irreducible
`
`constitutional minimum” of standing requires that a “plaintiff must have (1) suffered an injury in
`
`fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
`
`be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
`
`(2016). These three elements are referred to as, respectively, injury in fact, causation, and
`
`redressability. Planned Parenthood of Greater Was. & N. Idaho v. U.S. Dep’t of Health & Human
`
`Servs., 946 F.3d 1100, 1108 (9th Cir. 2020). The alleged injury in fact must be “concrete,
`
`particularized, and actual or imminent.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203, 210
`
`L. Ed. 2d 568 (2021). “For an injury to be ‘particularized,’ it must affect the plaintiff in a personal
`
`and individual way” and “[o]nly those plaintiffs who have been concretely harmed by a
`
`defendant’s statutory violation may sue that private defendant over that violation in federal court.”
`
`Spokeo, 136 S. Ct. at 1548 (internal quotation marks omitted); Ramirez, 141 S. Ct. at 2205. “The
`
`plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these
`
`elements[.]” Spokeo, 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
`
`Here, Al-Ahmed’s claims arise from two separate events: (1) the former Twitter
`
`employees’ unauthorized access into Twitter accounts at the behest of the KSA between 2013–
`
`2015, and (2) the May 2018 suspension of Al-Ahmed’s Arabic Twitter account. Docket No. 30
`
`(“Mot.”) at 8. Twitter argues that Al-Ahmed lacks Article III standing relating to the KSA’s 2013
`
`to 2015 espionage, and therefore all claims against Twitter except Replevin must be dismissed.
`
`Id.
`
`11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 12 of 32
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Twitter argues that Al-Ahmed’s claims do not have Article III standing for the same reason
`
`articulated by the Abdulaziz courts—he fails to establish a causal nexus between Twitter’s actions
`
`and the injury, and any such injury is not particularized to Al-Ahmed. Id. at 10. Al-Ahmed
`
`argues that: (1) an injury exists solely by virtue of statutes creating legal rights; (2) Twitter’s
`
`invasion of his privacy is a harm in itself; and (3) that he has nevertheless alleged a concrete and
`
`particularized injury apart from the invasion to his privacy. Opp’n at 3 (citing Havens Realty
`
`Corp. v. Coleman, 455 U.S. 363, 373 (1982) (internal quotations omitted)). Al-Ahmed’s first and
`
`third arguments fail. However, invasion of privacy is a particularized injury sufficient to establish
`
`Article III standing.
`
`The first argument fails because this argument was explicitly rejected by the Supreme
`
`Court in 2016. Spokeo, 136 S. Ct. at 1543 (“Article III standing requires a concrete injury even in
`
`the context of a statutory violation.”). The third argument also fails because Al-Ahmed fails to
`
`identify a concrete and personal injury separate from the invasion of privacy itself. Although Al-
`
`Ahmed’s affidavit to his Opposition states: “as a freelance journalist and author this has cost me
`
`hundreds of thousands of dollars in lost revenue from writing articles and books and through
`
`podcasts[,]” this injury is not alleged in his Complaint. Opp’n, Ex. A; Remington v. Mathson, 42
`
`F. Supp. 3d 1256, 1278 n.3 (N.D. Cal. 2012), aff’d, 575 F. App’x 808 (9th Cir. 2014) (“A
`
`Complaint cannot be amended through allegations made in an opposition to a motion to
`
`dismiss.”); Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In
`
`determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint
`
`to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to
`
`dismiss.”). Even if this statement is taken into consideration, it fails to establish standing because
`
`it lacks any causal connection to the alleged KSA-sponsored espionage claims. The preceding
`
`paragraph to this sentence makes clear that it was Twitter’s suspension of his account in 2018 that
`
`prevented him “from accessing the tens or thousands of KSA and other Arab-language followers
`
`and sources [that] curtailed [his] ability to report credibly and in real time on events unfolding in
`
`the KSA [and cost him his revenue.]” Docket No. 32-1, Ex. A at 5–6. The hacking of his account
`
`is distinct from the termination of his account.
`
`12
`
`Northern District of California
`
`United States District Court
`
`
`
`Case 3:21-cv-08017-EMC Document 49 Filed 05/20/22 Page 13 of 32
`
`
`
`Nevertheless, invasion of privacy by itself is sufficiently concrete and particularized to
`
`confer Article III standing. Last year, the Supreme Court further clarified the scope of Article III
`
`standing that: “Various intangible harms can also be concrete. Chief among them are injuries with
`
`a close relationship to harms traditionally recognized as providing a basis for lawsuits in American
`
`courts. Those include, for example, reputational harms, disclosure of private information, and
`
`intrusion upon seclusion.” Ramirez, 141 S. Ct. at 2204.
`
`In the years between Spokeo and Ramirez, the Ninth Circuit found Article III standing in
`
`multipl