Twitter is not responsible for ISIS attack, 9th Circuit rules

The 9th U.S. Circuit Court of Appeals on Wednesday upheld the dismissal of a lawsuit brought against Twitter Inc. by relatives of American men killed by ISIS terrorists.

The plaintiffs alleged the social media giant provided material support to ISIS by giving the terrorist organization access to Twitter accounts and messaging services.

"Plaintiffs-appellants have failed to adequately plead proximate causation," wrote 9th Circuit Judge Milan D. Smith Jr., who authored the panel's unanimous opinion. Fields v. Twitter, 2018 DJDAR 1057 (9th Cir. Jan. 31, 2018).

The lawsuit stems from the deaths of two American contractors killed in a terrorist attack at a police academy in Jordan in 2015.

The plaintiff family members alleged that by providing ISIS -- the purported perpetrator of the attack -- with Twitter accounts, the company allowed the organization to spread its message and fund its violent efforts, which violated the Anti-Terrorism Act.

The 9th Circuit was not convinced.

U.S. District Judge William Horsley Orrick, of the Northern District, dismissed the case in 2016, ruling that Section 230 of the Communications Decency Act prohibited holding Twitter liable as a publisher of ISIS' rhetoric. He also ruled that the plaintiffs had not adequately alleged the company was responsible for the deaths under the Anti-Terrorism Act's causation requirement.

Seth P. Waxman, the former U.S. solicitor general turned Washington, D.C. partner at Wilmer Cutler Pickering Hale and Dorr LLP, represented Twitter. He told the court at oral arguments in December that not providing his client protection under Section 230 would result in "death by 10,000 duck bites," borrowing a phrase used by former Circuit Judge Alex Kozinski in a 2008 opinion that warned of the dangers of holding websites liable for the illegal actions of third party users.

Waxman, who declined to comment on the decision, was stressing the possibility that many in the technology industry have feared: Opening tech giants like Google, Facebook and other social media outlets to lawsuits seeking damages for terrorist attacks could bankrupt the industry, a point noted by Smith at the argument.

On Wednesday, the 9th Circuit declined to weigh in on the Section 230 debate, ruling instead that the plaintiffs' failure to adequately address the act's "by reason of" standard was fatal to their lawsuit.

Under the law, Americans injured "by reason of" any act of international terrorism may seek damages in federal court against parties who aided terrorists. Twitter and the widows sparred over the burden required by the law since the filing of the suit in January 2016.

The 9th Circuit agreed with Twitter that a higher standard of connection was required.

"[T]o satisfy the ATA's 'by reason of' requirement, a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant's acts," Smith wrote, going further to compare the statute's language with similar words used in the Sherman, Clayton, and Racketeer Influenced and Corrupt Organizations acts.

Joshua D. Arisohn, a New York-based partner at Bursor & Fisher P.A. who represented the plaintiffs, said in an email that he was "extremely disappointed" by the court's decision, adding that he and his clients were "considering all options going forward."

Arisohn suggested that the decision conflicted with an earlier opinion from the U.S. Supreme Court, which he described as recognizing "that any provision of material support to terrorist groups facilitates terrorist attacks."

The decision, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), which split the high court 6-3, upheld provisions of the USA PATRIOT Act that barred Americans from providing support to foreign terrorist organizations abroad.

"Twitter knowingly provided social media accounts to ISIS and ISIS used those accounts to recruit thousands of new members, to fund-raise millions of dollars and to spread its vile propaganda around the world," Arisohn added, repeating the central theme of the lawsuit, which was that Twitter allowed ISIS to amass resources used to carry out terrorist attacks, including the one that killed his clients' husbands.

"Requiring a more direct connection between the provision of material support to terrorists and the attacks that they carry out contravenes the central purpose of the Anti-Terrorism Act: holding enablers of terrorists accountable," he continued.

The case is the first of its kind to reach a federal appellate court, according to Eric Goldman, who directs Santa Clara University School of Law's High Tech Law Institute and watches similar litigation closely.

He and other lawyers who operate in the technology business sphere have eagerly awaited such an appellate review.

"Many of us were hoping that the case would be decided on Section 230 grounds, which would categorically wipe out this type of litigation," he said in an interview. "The 9th Circuit didn't, but the court's decision about causation was extremely sweeping, so I think it might have the effect of stopping other similar lawsuits."

Numerous lawsuits alleging fault on the part of social media companies for deadly terrorist attacks have been filed across the country in recent years. Many of the cases concern the ISIS-inspired mass killings in San Bernardino, Orlando and Paris. But most of these legal attempts have been unsuccessful.

In October, U.S. Magistrate Judge Donna M. Ryu of the Northern District dismissed a suit seeking to find Google partially responsible for the death of an American who died during the 2015 ISIS attack in Paris. The plaintiffs said that the company allowed the organization to spread its message on YouTube.

In May, U.S. District Judge Nicholas G. Garaufis, of the Eastern District of New York, dismissed a similar case on jurisdictional issues in a claim brought by Israeli citizens against Facebook.

Goldman said that the 9th Circuit's decision could be the death knell to this type of case, but was quick to note that given the breadth of the issues in play, he wouldn't be surprised if the plaintiffs file for rehearing en banc or petition for Supreme Court review.

"The judges wrote a very powerful and precedential opinion," he said.

Circuit Judge Sandra S. Ikuta and U.S. District Judge Steven J. McAuliffe, visiting from New Hampshire, also sat on the panel considering the case.