`No. 21-1496
`In the
`Supreme Court of the United States
`________________________
`TWITTER, INC.,
`Petitioner,
`
`v.
`MEHIER TAAMNEH, et al.,
`Respondents.
`________________________
`On Writ of Certiorari to the United States Court of
`Appeals for the Ninth Circuit
`________________
`BRIEF FOR RESPONDENTS
`FACEBOOK, INC. AND GOOGLE LLC
`SUPPORTING PETITIONER
`_______________________
`PAUL D. CLEMENT
` Counsel of Record
`ERIN E. MURPHY
`JAMES Y. XI*
`CLEMENT & MURPHY, PLLC
`706 Duke Street
`Alexandria, VA 22314
`(202) 742-8900
`paul.clement@clementmurphy.com
`THEODORE J. BOUTROUS JR.
`HELGI C. WALKER
`KRISTIN A. LINSLEY
`JONATHAN C. BOND
`JACOB T. SPENCER
`JESSICA L. WAGNER
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Ave., NW
`Washington, DC 20036
`(Additional Counsel Listed on Inside Cover)
`
`November 29, 2022
`
`LISA S. BLATT
`SARAH M. HARRIS
`AARON Z. ROPER
`WILLIAMS &
` CONNOLLY LLP
`680 Maine Ave., SW
`Washington, DC 20024
`(202) 434-5000
`lblatt@wc.com
`BRIAN M. WILLEN
`STEFFEN N. JOHNSON
`LAUREN GALLO WHITE
`WILSON SONSINI
` GOODRICH &
` ROSATI, PC
`1700 K Street, NW
`Washington, DC 20006
`
`
`
`
`
`
`JENNIFER NEWSTEAD
`SCOTT TUCKER
`SANDEEP SOLANKI
`NATALIE NAUGLE
`NIKKI STITT SOKOL
`META PLATFORMS, INC.
`1 Hacker Way
`Menlo Park, CA 94025
`Counsel for Facebook, Inc.
`*Supervised by principals of the firm
`who are members of the Virginia bar
`
`
`
`
`
`KENT WALKER
`HALIMAH DELAINE PRADO
`CASSANDRA KNIGHT
`RENNY HWANG
`NORA PUCKETT
`GOOGLE LLC
`1600 Amphitheatre Pkwy.
`Mountain View, CA 94043
`Counsel for Google LLC
`
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`Under §2333 of the Anti-Terrorism Act, as
`amended by the Justice Against Sponsors of Terrorism
`Act, U.S. nationals injured by “an act of international
`terrorism” that is “committed, planned, or authorized
`by” a designated foreign terrorist organization may
`sue any person who “aids and abets, by knowingly
`providing substantial assistance, or who conspires
`with the person who committed such an act of
`international terrorism,” and recover treble damages.
`18 U.S.C. §2333(a), (d)(2).
`The questions presented are:
`1. Whether a defendant that provides generic,
`widely available services to all its numerous users and
`“regularly” works to detect and prevent terrorists from
`using those services “knowingly” provided substantial
`assistance under §2333 merely because it allegedly
`could have taken more “meaningful” or “aggressive”
`action to prevent such use.
`2. Whether a defendant whose generic, widely
`available services were not used in connection with
`the specific “act of international terrorism” that
`injured the plaintiff may be liable for aiding and
`abetting under §2333.
`
`
`
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`Petitioner Twitter, Inc. was a defendant in the
`district court and an appellee before the court of
`appeals.
`Respondents Facebook, Inc. (now known as Meta
`Platforms, Inc.) and Google LLC also were defendants
`in the district court and appellees before the court of
`appeals.
`Respondents Mehier Taamneh, Lawrence
`Taamneh, Sara Taamneh, and Dimana Taamneh were
`plaintiffs in the district court and appellants before
`the court of appeals.
`
`
`
`
`
`
`
`
`iii
`
`CORPORATE DISCLOSURE STATEMENT
`Meta Platforms, Inc.
`is a publicly traded
`corporation; it has no parent corporation and no
`publicly traded corporation owns 10% or more of its
`stock.
`Google LLC is a subsidiary of XXVI Holdings, Inc.,
`which is a subsidiary of Alphabet, Inc. Alphabet, Inc.
`is a publicly traded company and no publicly traded
`corporation owns 10% or more of its stock.
`
`
`
`
`
`iv
`
`TABLE OF CONTENTS
`QUESTIONS PRESENTED........................................ i
`PARTIES TO THE PROCEEDING ........................... ii
`CORPORATE DISCLOSURE STATEMENT ........... iii
`TABLE OF AUTHORITIES ...................................... vi
`INTRODUCTION ....................................................... 1
`OPINIONS BELOW ................................................... 4
`JURISDICTION ......................................................... 4
`STATUTORY PROVISIONS INVOLVED ................. 4
`STATEMENT OF THE CASE ................................... 4
`A. Statutory Background .................................. 4
`B. Proceedings Below ........................................ 7
`SUMMARY OF ARGUMENT .................................. 16
`ARGUMENT ............................................................. 20
`I. Plaintiffs Failed To Allege That Facebook Or
`YouTube Aided And Abetted The Act Of
`International Terrorism That Caused Their
`Injuries ............................................................... 20
`A. Section 2333(d)(2) Imposes Aiding-and-
`Abetting Liability Only If a Defendant
`Knowingly and Substantially Assisted
`the Act of International Terrorism That
`Injured the Plaintiff ................................... 20
`B. The Complaint Fails to Allege That
`Facebook or YouTube Knowingly and
`Substantially Assisted the Reina Attack .. 29
`C. The Ninth Circuit Improperly Conflated
`the Act of International Terrorism and
`the Organization That Perpetrated It ....... 32
`
`
`
`v
`
`II. The Ninth Circuit’s Lax Conception Of
`“Knowingly
`Providing
`Substantial
`Assistance” Cannot Be Reconciled With The
`Statutory Text Or The Common-Law
`Principles It Incorporates ................................. 36
`III. The Ninth Circuit’s Stark Departures From
`Traditional Aiding-And Abetting Principles
`Produce Untenable Consequences .................... 44
`IV. Faithful Interpretation And Application Of
`The ATA Suffices To Resolve Both This Case
`And Google v. Gonzalez ..................................... 50
`CONCLUSION ......................................................... 51
`STATUTORY APPENDIX
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`
`Cases
`Benz v. Compania Naviera Hidalgo S.A.,
`353 U.S. 138 (1957) ................................................ 49
`Boim v. Holy Land Found. for Relief & Dev.,
`549 F.3d 685 (7th Cir. 2008) .................................... 5
`Borden v. United States,
`141 S.Ct. 1817 (2021) ............................................. 37
`Cain v. Twitter Inc.,
`2018 WL 4657275
`(N.D. Cal. Sept. 24, 2018) ...................................... 39
`Cent. Bank of Denver, N.A.
`v. First Interstate Bank of Denver, N.A.,
`511 U.S. 164 (1994) .......................................... 27, 28
`Copeland v. Twitter, Inc.,
`352 F.Supp.3d 965 (N.D. Cal. 2018)...................... 43
`F. Hoffmann-La Roche Ltd.
`v. Empagran S.A.,
`542 U.S. 155 (2004) .......................................... 48, 49
`Halberstam v. Welch,
`705 F.2d 472 (1983) ....................................... passim
`Holder v. Humanitarian Law Project,
`561 U.S. 1 (2010) .................................................... 25
`Libr. of Cong. v. Shaw,
`478 U.S. 310 (1986) ................................................ 48
`McCulloch v. Sociedad Nacional de
`Marineros de Honduras,
`372 U.S. 10 (1963) .................................................. 49
`Monsen v. Consol. Dressed Beef Co.,
`579 F.2d 793 (3d Cir. 1978) ................................... 28
`
`
`
`vii
`
`Morrison v. Nat’l Australia Bank Ltd.,
`561 U.S. 247 (2010) ................................................ 49
`Niz-Chavez v. Garland,
`141 S.Ct. 1474 (2021) ............................................. 22
`Owens v. BNP Paribas, S.A.,
`897 F.3d 266 (D.C. Cir. 2018) .................................. 5
`Rosemond v. United States,
`572 U.S. 65 (2014) .................................................. 28
`Rothstein v. UBS AG,
`708 F.3d 82 (2d Cir. 2013) ....................................... 5
`Safeco Ins. Co. of Am. v. Burr,
`551 U.S. 47 (2007) ............................................ 37, 39
`SEC v. Coffey,
`493 F.2d 1304 (6th Cir. 1974) ................................ 28
`Siegel v. HSBC N. Am. Holdings, Inc.,
`933 F.3d 217 (2d Cir. 2019) ................................... 43
`Sosa v. Alvarez-Machain,
`542 U.S. 692 (2004) ................................................ 26
`World Wide Minerals, Ltd.
`v. Republic of Kazakhstan,
`296 F.3d 1154 (D.C. Cir. 2002) .............................. 48
`ZF Auto. US, Inc. v. Luxshare, Ltd.,
`142 S.Ct. 2078 (2022) ............................................. 49
`Statutes
`7 U.S.C. §25(a) .......................................................... 27
`8 U.S.C. §1182(a) ...................................................... 27
`8 U.S.C. §1189(a) ...................................................... 35
`15 U.S.C. §78t(e) ....................................................... 37
`18 U.S.C. §2 .............................................................. 26
`
`
`
`viii
`
`18 U.S.C. §2331(a) ...................................................... 5
`18 U.S.C. §2333(a) ............................................ passim
`18 U.S.C. §2333(d) ............................................ passim
`18 U.S.C. §2339B .................................................. 5, 33
`18 U.S.C. §2339B(a) ........................................... 12, 25
`28 U.S.C. §1605B(b) ................................................. 47
`28 U.S.C. §1605B(c) .................................................. 47
`47 U.S.C. §230 .......................................................... 11
`Pub. L. No. 101-519, 104 Stat. 2240 (1990) ............... 5
`Pub. L. No. 102-572, 106 Stat. 4506 (1992) ............... 5
`Pub. L. No. 104-132, 110 Stat. 1214 (1996) ............... 5
`Pub. L. No. 114-222, 130 Stat. 852 (2016) ....... passim
`Other Authorities
`American Heritage Dictionary of the
`English Language (5th ed. 2018) .................... 23, 38
`Black’s Law Dictionary (10th ed. 2014) ................... 23
`Dan B. Dobbs et al., The Law of Torts
`(2d ed. 2022) ........................................................... 29
`Facebook Community Standards
`(Apr. 23, 2015), https://bit.ly/3Urkh1f .................. 10
`Facebook Transparency Center
`(last visited Nov. 27, 2022),
`https://bit.ly/3Ve7kbH ........................................... 10
`Google Transparency Report
`(last visited Nov. 27, 2022),
`https://bit.ly/2IguufL .............................................. 10
`W. Page Keeton et al., Prosser and Keeton on
`the Law of Torts (5th ed. 1984) ............................. 28
`
`
`
`ix
`
`Merriam-Webster’s Collegiate Dictionary
`(11th ed. 2014) ....................................................... 23
`Oxford English Dictionary (2d ed. 1989) ................. 23
`Restatement (Second) of Foreign
`Relations Law (1965) ............................................. 48
`U.S. Dep’t of Justice, Criminal Resource
`Manual (1998) ........................................................ 27
`Webster’s New International Dictionary of the
`English Language (2d ed. 1949) ............................ 23
`Webster’s Third New International
`Dictionary of the English Language (2002) .......... 23
`The White House, Veto Message from
`the President—S.2040 (Sept. 23, 2016),
`https://bit.ly/3Nwy3x3 ....................................... 7, 48
`Ahmet S. Yayla, The Reina Nightclub Attack
`and the Islamic State Threat to Turkey,
`CTCSentinel (Mar. 2017),
`https://bit.ly/3fzWRYy ........................................... 31
`YouTube Help (Apr. 30, 2016),
`http://bit.ly/3UuS5Ld ............................................. 10
`
`
`
`INTRODUCTION
`The Anti-Terrorism Act (ATA) authorizes a United
`States national who is injured by an “act of
`international terrorism” to recover treble damages
`from the perpetrator(s) of the act. 18 U.S.C. §2333(a).
`In 2016, Congress expanded the ATA to allow victims
`to recover from “any person who aids and abets” or
`“conspires with the person who committed such an act
`of
`international
`terrorism.”
`
`Id. §2333(d)(2).
`Cognizant of the harsh penalties and stigma
`associated with being deemed an aider and abettor of
`terrorism, Congress carefully cabined aiding-and-
`abetting liability to those who “knowingly provid[e]
`substantial assistance” to the specific “act of
`international terrorism” that injured the plaintiff. Id.
`While Congress had previously enacted a criminal law
`that gives the government discretion to prosecute
`providing material support to a terrorist organization,
`when it came to the ATA and its private treble-
`damages regime, Congress adopted a different
`approach, requiring more than simply supporting a
`terrorist organization. Instead, Congress made clear
`in its enacted findings that it was embracing a
`common-law standard that imposes liability only on
`those who knowingly provide substantial assistance to
`a specific wrongful act. Retaining that high bar was
`critical because the same amendments not only
`authorized treble damages for private plaintiffs but
`took the exceptional step of abrogating the immunity
`of foreign sovereigns from ATA claims arising out of
`certain attacks,
`including the new aiding-and-
`abetting claims.
`
`
`
`2
`
`This case arises out of an ATA lawsuit against
`Facebook, YouTube, and Twitter brought by family
`members of a victim of the 2017 Reina nightclub
`shooting in Istanbul, Turkey. The plaintiffs do not
`(and cannot plausibly) claim that any of the
`defendants knowingly aided that horrific act of
`terrorism.
` Nor do plaintiffs claim that the
`perpetrators used any of the defendants’ online
`services to aid in the commission of the attack, much
`less did so with any defendant’s knowledge. In fact,
`plaintiffs do not allege that the perpetrators of the
`attack ever used any of the defendants’ services at all.
`Plaintiffs instead sued the companies on the theory
`that they “aided and abetted” the Reina attack by
`failing to adequately enforce their policies prohibiting
`terrorism-related content when it came to removing
`content that was generally helpful to ISIS. As the
`district court correctly recognized, those allegations
`are nowhere near sufficient to sustain a claim that any
`defendant
`“knowingly
`provid[ed]
`substantial
`assistance” to the Reina attack.
`The Ninth Circuit nevertheless revived plaintiffs’
`aiding-and-abetting claim—but did so only by
`embracing a reading of the statute that defies text,
`context, common-law principles, and common sense.
`Rather than require plaintiffs to plead (and ultimately
`prove) that defendants aided and abetted the “act of
`international terrorism” from which their “injury
`aris[es],” 18 U.S.C. §2333(d)(2)—i.e., the Reina
`attack—the court found it sufficient that plaintiffs
`alleged that the companies assisted ISIS generally by
`failing to do more to keep ISIS supporters from
`exploiting the companies’ services. And rather than
`require plaintiffs to plead (and ultimately prove) that
`
`
`
`3
`
`substantial
`provid[ed]
`“knowingly
`defendants
`assistance” to the Reina attack, the Ninth Circuit
`found it sufficient that plaintiffs alleged that the
`companies were generally aware that terrorists were
`exploiting their services—in contravention of their
`terms of use and despite extensive efforts to prevent
`that activity—and did not undertake even more
`aggressive prevention efforts.
`The combined effect of the Ninth Circuit’s errors
`creates a statute of impossible breadth. Any provider
`of widely available services that can be exploited by
`terrorists risks treble damages for unrelated terrorist
`attacks if a jury later determines that it should have
`done more to root out such exploitation. A bank that
`learns that its policies prohibiting terrorists from
`exploiting its services have not proven foolproof could
`be held liable for unwittingly providing services to an
`ISIS member. A rental-car company could be held
`liable for renting cars to ISIS adherents, an online
`marketplace could be liable for selling them ordinary
`goods, and so on. Efforts to screen out suspicious
`customers would be treated as awareness of the
`problem and, under the Ninth Circuit’s logic, treble-
`damages liability would extend to anyone ever injured
`in a terrorist attack conducted by ISIS. Making
`matters worse, foreign sovereigns could be haled into
`U.S. courts on equally extravagant theories of
`liability. None of that is remotely consistent with
`Congress’s expressly stated intent to provide a
`damages remedy consistent with well-established and
`suitably restrained principles of aiding-and-abetting
`liability. This Court should restore ATA liability to
`the
`limits
`imposed by the statutory text and
`traditional principles of secondary liability.
`
`
`
`4
`
`OPINIONS BELOW
`appeals
`of
`opinion
`of
`the
`court
`The
`(Pet.App.1a-150a1) is reported at 2 F.4th 871. The
`opinion of the district court (Pet.App.151a-180a) is
`reported at 343 F.Supp.3d 904.
`JURISDICTION
`The judgment of the court of appeals was entered
`on June 22, 2021. A petition for rehearing was denied
`on December 27, 2021 (Pet.App.181a). On March 14,
`2022, Justice Kagan extended the time within which
`to file a petition for a writ of certiorari to May 26, 2022,
`and the petition was filed on that date. The
`jurisdiction of this Court rests on 28 U.S.C. §1254(1).
`STATUTORY PROVISIONS INVOLVED
`Relevant statutory provisions are reproduced in
`the appendix to this brief. Stat.App.1a-3a.
`STATEMENT OF THE CASE
`A. Statutory Background
`1. The ATA creates a civil cause of action for
`victims of international terrorist acts to obtain redress
`from perpetrators. The Act permits a United States
`national
`“injured … by
`reason of an act of
`international terrorism” to sue in our courts and seek
`treble damages. 18 U.S.C. §2333(a). The statute
`defines “international terrorism” as certain “violent
`acts or acts dangerous to human life” that would be
`criminal if committed domestically, but that either
`occur primarily abroad or
`transcend national
`boundaries, and appear
`to be
`“intended”
`to
`
`1 In this brief, “Pet.App.” refers to the appendix to the
`conditional petition for a writ of certiorari in No. 21-1496.
`
`
`
`5
`
`“intimidate” civilian populations or to “influence” or
`“affect” government action through fear or acts of
`violence. 18 U.S.C. §2331(a)(1). Separately from the
`civil remedies provided in the ATA, in 1996, Congress
`enacted a criminal prohibition on providing “material
`support or
`resources
`to a
`foreign
`terrorist
`organization.” Pub. L. No. 104-132, §303(a), 110 Stat.
`1214, 1250 (1996) (codified at 18 U.S.C. §2339B).
`As originally enacted, the ATA did not expressly
`address secondary liability against those who aid and
`abet acts of international terrorism. See Pub. L. No.
`101-519, §132(a), 104 Stat. 2240, 2250-51 (1990)
`(codified at 18 U.S.C. §2333 (1990)); Pub. L. No. 102-
`572, §1003, 106 Stat. 4506, 4521-24 (1992) (reenacting
`§2333 with minor modifications). Accordingly, most
`appellate courts to confront the issue held that §2333
`as originally enacted did not authorize aiding-and-
`abetting liability. Owens v. BNP Paribas, S.A., 897
`F.3d 266, 278 (D.C. Cir. 2018); Rothstein v. UBS AG,
`708 F.3d 82, 97-98 (2d Cir. 2013). In contrast, the
`Seventh Circuit, extrapolating from the separate
`criminal prohibition on providing material support, 18
`U.S.C. §2339B, held that a form of “secondary
`liability” was available under §2333. See Boim v. Holy
`Land Found. for Relief & Dev., 549 F.3d 685, 691-92
`(7th Cir. 2008) (en banc).
`2. In 2016, Congress amended the ATA to
`authorize certain forms of secondary liability. Justice
`Against Sponsors of Terrorism Act (“JASTA”), Pub. L.
`No. 114-222, §4, 130 Stat. 852, 852 (2016). Rather
`than follow the lead of the Seventh Circuit in Boim,
`however, and build on the material-support approach
`taken in §2339B, Congress added a new provision to
`
`
`
`6
`
`§2333 incorporating only aiding-and-abetting and
`conspiracy liability. In particular, subsection (d) now
`provides that, “[i]n an action under subsection (a) for
`an injury arising from an act of international
`terrorism committed, planned, or authorized by” a
`designated terrorist organization, “liability may be
`asserted as to any person who aids and abets, by
`knowingly providing substantial assistance, or who
`conspires with the person who committed such an act
`of international terrorism.” Id. §4, 130 Stat. at 854
`(codified at 18 U.S.C. §2333(d)(2)).
`In §2(a)(5) of JASTA, Congress stated that the
`D.C. Circuit’s opinion in Halberstam v. Welch, 705
`F.2d 472
`(1983),
`“provides
`the proper
`legal
`framework” for aiding-and-abetting liability under the
`ATA. 130 Stat. at 852 (codified at 18 U.S.C. §2333
`note). That opinion, authored by Judge Wald and
`joined by Judge Bork and then-Judge Scalia, included
`a section entitled “Legal Framework,” see 705 F.2d at
`476-78, that canvassed the case law and distilled civil
`aiding-abetting liability to “the following elements”:
`(1) the party whom the defendant aids must
`perform a wrongful act that causes an injury;
`(2) the defendant must be generally aware of his
`role as part of an overall illegal or tortious activity
`at the time that he provides the assistance; (3) the
`defendant must knowingly and substantially
`assist the principal violation.
`Id. at 477. The Halberstam opinion then articulated
`six factors designed to determine whether the third
`prong of that test is satisfied: (1) the nature of the act
`encouraged, (2) the amount of assistance given by
`defendant, (3) the defendant’s presence or absence at
`
`
`
`7
`
`the time of the tort, (4) the defendant’s relation to the
`principal, (5) the defendant’s state of mind, and (6) the
`period of defendant’s assistance. See id. at 483-84.
`In addition to creating aiding-and-abetting and
`conspiracy liability, JASTA carved out an exception to
`foreign sovereign immunity for suits caused by “an act
`of international terrorism in the United States” and “a
`tortious act or acts of the foreign state” or of its
`“official[s], employee[s], or agent[s]. §3(a), 130 Stat. at
`853 (codified at 28 U.S.C. §1605B). Where those
`conditions are satisfied, United States nationals may
`bring ATA claims against
`foreign sovereigns,
`including under an aiding-and-abetting or conspiracy
`theory. 28 U.S.C. §1605B(c).
`Concerned that JASTA’s abrogation of sovereign
`immunity could undermine international comity,
`impair the ability of the United States to respond
`effectively to state sponsors of terror, damage
`relationships with close partners, and possibly lead to
`reciprocal actions by foreign nations against the
`United States, President Obama vetoed JASTA. The
`White House, Veto Message from the President—
`S.2040
`(Sept. 23, 2016), https://bit.ly/3Nwy3x3.
`Congress overrode the veto and passed JASTA into
`law. 130 Stat. at 855-56.
`B. Proceedings Below
`This case arises from a heinous terrorist attack
`committed at the Reina nightclub in Istanbul, Turkey,
`by Abdulkadir Masharipov. On January 1, 2017,
`Masharipov murdered 39 people at the club. Nawras
`Alassaf, a relative of plaintiffs, was among the victims.
`JA54. Plaintiffs allege that Masharipov committed
`the attack at the direction of ISIS and under the
`
`
`
`8
`
`guidance of Abu Shuhada, the head of ISIS operations
`in Turkey. JA118.
`that
`allege
`vaguely
`Although
`plaintiffs
`Masharipov was “radicalized by ISIS’s use of social
`media,” JA157, they do not allege that any of the
`defendants had any connection whatsoever to
`Masharipov, Shuhada, or this specific terrorist
`attack—or even that the terrorists involved in the
`Reina attack ever used these services, let alone used
`them in conjunction with the attack. And plaintiffs do
`not dispute that each defendant prohibits use of its
`services by terrorists or terrorist organizations or to
`further terrorist attacks or activities.
`1. Plaintiffs sued Facebook and Google (which
`owns YouTube), along with Twitter, in the Northern
`District of California, asserting claims under the ATA
`and state tort law. JA158-67. The operative
`complaint alleges that the Reina attack was the result
`of a year-long effort by ISIS to plan a major terrorist
`attack in Turkey. JA118. As part of that plan,
`Masharipov was directed to establish himself, along
`with his wife and family, in Turkey and await further
`orders, and then was provided with detailed
`instructions from Shuhada and ISIS on how to execute
`the attack. JA119.
`The complaint does not allege that Facebook or
`YouTube helped to commit the Reina attack, that their
`services were used in any way in furtherance of the
`attack, or that they had any connection to Masharipov
`or Shuhada. Indeed, plaintiffs do not even allege that
`Masharipov or Shuhada ever had an account on
`Facebook or YouTube, viewed or posted any content
`through these services, or used those services at all.
`
`
`
`9
`
`Pet.App.168a. Instead, plaintiffs allege that other
`ISIS members and sympathizers posted content on
`Facebook and YouTube services—not in connection
`with the Reina attack, but for the general purposes of
`spreading propaganda, soliciting
`funding, and
`recruiting
`followers.
` JA117-18.
` According to
`plaintiffs, that content helped ISIS grow. JA49.
`Plaintiffs further allege, albeit generically and
`with few specifics, that defendants “recommend[]
`ISIS” material through algorithms that “match
`content, videos, and accounts with similarities.”
`JA143, 147. According to plaintiffs, users who viewed
`particular Facebook accounts or YouTube videos were
`shown similar accounts and videos. JA147. But
`plaintiffs do not allege that defendants knew of any
`specific ISIS content that any of their algorithms ever
`displayed, let alone that their algorithms were
`designed or implemented for that purpose. And in any
`event, plaintiffs do not claim that Masharipov,
`Shuhada, or any ISIS adherent saw any ISIS accounts
`or videos based on these features, let alone any content
`related to the Reina attack.
`As the Ninth Circuit noted, plaintiffs acknowledge
`that defendants maintain “policies [that] prohibit
`posting content that promotes terrorist activity or
`other forms of violence.” Pet.App.64a-65a. Facebook,
`for example, has long prohibited “threats of harm to
`public and personal safety”; any organization involved
`in terrorist activity; and any content that “expresses
`support
`for” those groups, their “leaders,” or
`“celebrate[s]” their violence. See Facebook Community
`
`
`
`10
`
`Standards (Apr. 23, 2015), https://bit.ly/3Urkh1f.2
`YouTube likewise has long “strictly prohibit[ed]”
`“content
`intended
`to
`recruit
`for
`terrorist
`organizations,
`incite violence, celebrate terrorist
`attacks or otherwise promote acts of terrorism,” as
`well as “violent or gory content” that is “primarily
`intended to be shocking, sensational or disrespectful.”
`YouTube Help (Apr. 30, 2016), http://bit.ly/3UuS5Ld.
`Plaintiffs further concede that the companies
`enforced those policies by “regularly remov[ing] ISIS
`content and ISIS-affiliated accounts.” Pet.App.64a.
`For example, the complaint alleges that: Facebook
`“continuously” removed pages created by one
`unnamed
`“ISIS
`supporter[],” JA93; YouTube
`“removed” ISIS recruitment videos from its site and
`hired “Arabic speakers to serve as ‘moderators’ to
`review videos posted to YouTube,” JA78, 135-36; and
`all defendants “suspended or blocked selected ISIS-
`related accounts … prior to the Istanbul attack,”
`JA135, and invested in “tools” to “identify, flag,
`review, and remove ISIS accounts.” JA148; see also,
`e.g., JA149-50, 155. Nevertheless, plaintiffs maintain
`that defendants “knowingly and recklessly” allowed
`ISIS to engage in “illegal activity” because they did not
`take sufficiently “meaningful action to stop” users
`
`2 The effort to police their websites and enforce their user
`agreements is hardly static. Although this case involves the
`specific allegations and time period set forth in the operative
`complaint, the companies’ efforts are constantly evolving and
`improving. Both Facebook and YouTube regularly remove
`content that violates their terrorism policies. See Facebook
`Transparency Center
`(last
`visited Nov.
`27,
`2022),
`https://bit.ly/3Ve7kbH; Google Transparency Report (last visited
`Nov. 27, 2022), https://bit.ly/2IguufL.
`
`
`
`11
`
`from posting ISIS-related content in violation of
`defendants’ policies. JA135.
`In particular, plaintiffs maintain that the
`companies did not adequately “monitor content”;
`“actively guard against terrorists’ use of” the
`platforms; prevent “ISIS-linked account[s]” that they
`“shut down … from springing right back up”; or
`develop “algorithm[s]” to block “newly created
`account[s] similarly named to one previously taken
`down” that “sen[d] out large numbers of requests in a
`very short period of time.” JA136, 148-49, 154-56.
`And the complaint alleges that, despite media and
`government organizations calling attention to ISIS’s
`general use of their platforms, defendants removed
`only ISIS content that violated their policies. JA93,
`95, 134, 136-38. According to plaintiffs, these alleged
`failures to take sufficiently “aggressive” measures to
`prevent the posting of terrorist content in violation of
`their explicit and regularly enforced anti-terrorism
`policies renders defendants liable for aiding and
`abetting the Reina terrorist attack. JA90-91.
`2. Defendants moved to dismiss, arguing that the
`complaint fails to state a claim under the ATA and
`that plaintiffs’ claims are also barred by §230 of the
`Communications Decency Act, 47 U.S.C. §230. The
`district court granted the motion on the first ground
`without reaching defendants’ §230 arguments.
`Pet.App.151a-180a.
`The district court held (as relevant here) that
`plaintiffs had not stated a claim for aiding-and-
`abetting liability. As the court explained, under §2333
`“the injury at issue must have arisen from ‘an act of
`international terrorism,’” so to be liable for aiding and
`
`
`
`12
`
`abetting, the defendant must have “assisted the
`principal tortfeasor in committing ‘such an act of
`international terrorism.’” Pet.App.174a. The court
`contrasted §2333 with the material-support statute,
`which makes it unlawful to knowingly provide
`“material support or resources to a foreign terrorist
`organization” that has been designated as such,
`regardless whether the support or resources are used
`in connection with any particular terrorist act, 18
`U.S.C. §2339B(a)(1). The court observed that, unlike
`the material-support statute, §2333 “does not refer to
`assisting a foreign terrorist organization generally or
`such an organization’s general course of conduct.”
`Pet.App.174a. Yet the complaint here tied its
`“aiding/abetting … claim[] to ISIS” generally, “not Mr.
`Masharipov” or the Reina attack. Pet.App.172a.
`The district court further held that, even if §2333
`authorized aiding-and-abetting liability based on
`general
`“assistance
`of
`a
`foreign
`terrorist
`organization,” the complaint still would “fail to
`establish liability.” Pet.App.175a. As the court
`explained, the complaint contains “no allegation, for
`example, that Defendants knew that ISIS members
`had previously used Defendants’ platforms
`to
`communicate specific plans to carry out terrorist
`attacks,” and it contains “insufficient allegations that
`Defendants played a role in any particular terrorist
`activities.” Pet.App.177a. The complaint alleged “a
`market relationship at best” between ISIS supporters
`and the companies, with “Defendants provid[ing]
`routine services generally available to members of the
`public.” Pet.App.178a. And there is “no allegation
`that Defendants ha[d] any intent to further ISIS’s
`terrorism.” Pet.App.179a.
`
`
`
`13
`
`Because the district court concluded that plaintiffs
`failed to state a viable ATA claim, it did not reach or
`address whether §230 would independently bar their
`claims.
`3. In a consolidated opinion, the Ninth Circuit
`reversed the dismissal in Taamneh, but affirmed the
`dismissal of materially identical claims in Gonzalez v.
`Google LLC, which is before this Court in No. 21-1333.
`Pet.App.71a.
`a. The Taamneh plaintiffs pursued a single theory
`of aiding-and-abetting liability on appeal: that
`defendants aided and abetted the Reina attack by
`failing to take sufficiently meaningful steps to prevent
`ISIS members or supporters from exploiting their
`services to aid ISIS’s general aims. Taamneh CA.Br.
`at 5, 18-20. The Ninth Circuit did not consider
`whether §230 would bar those allegations, despite
`siding with Google on the §230 issue on functionally
`identical facts in Gonzalez. Pet.App.60a. Instead, the
`Ninth Circuit held that the Taamneh plaintiffs stated
`a claim for aiding-and-abetting liability under §23
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