Court: District Court, E.D. New York; May 18, 2017; Federal District Court
Plaintiffs in two related legal actions assert claims against Facebook, Inc., alleging the platform has facilitated terrorist organizations by allowing their use of the site to advance their agendas. The first group, the Cohen Plaintiffs, consists of approximately 20,000 Israeli citizens who report being targeted by Palestinian terrorist organizations, claiming imminent threats from attacks coordinated via Facebook, which they label the "Facebook Intifada." They detail 54 separate attacks since October 1, 2015. The second group, the Force Plaintiffs, includes estates and family members of victims of past terrorist attacks by Hamas, primarily involving U.S. citizens residing in Israel at the time of their deaths. They provide a timeline of the attacks and specify Hamas’s role in these incidents.
Facebook filed motions to dismiss the complaints in both actions under Federal Rules of Civil Procedure, which the court has consolidated due to the similarity in facts and legal issues. Ultimately, the court granted Facebook's motions to dismiss the operative complaints for both the Cohen Action and the Force Action. The memorandum also outlines Facebook's social media functionalities, emphasizing user interaction, group creation, and data collection practices, which are central to the plaintiffs' claims regarding the platform's role in terrorist activities.
Allegations against Facebook in two related lawsuits assert that the social media platform is utilized by Palestinian terrorist organizations to incite violence against Jews, including directing individuals to commit acts of murder. Plaintiffs allege that Facebook's algorithms facilitate the spread of violent content, targeting users most likely to act on such incitements. They contend that Facebook is aware of these activities yet has inadequately responded, often only deleting specific posts or banning users inconsistently.
The Cohen Plaintiffs filed their case in the Supreme Court of New York, which was removed to federal court by Facebook, asserting claims under Israeli law for negligence, breach of statutory duty, and vicarious liability, along with New York law claims for various torts. They seek declaratory and injunctive relief and assert that their claims are not barred by Section 230 of the Communications Decency Act.
The Force Plaintiffs initiated their action in the Southern District of New York, which was later transferred to the same court as the Cohen case. Their claims include those under Israeli law and federal statutes related to international terrorism, seeking $1 billion in compensatory damages and additional punitive and treble damages.
Facebook has filed motions to dismiss both complaints, citing lack of jurisdiction and failure to state a viable claim.
A court must prioritize addressing jurisdictional challenges before evaluating the sufficiency of claims. In this case, the Cohen Plaintiffs were dismissed for lack of subject matter jurisdiction due to a failure to establish standing, as they did not present a cognizable injury-in-fact. The court found personal jurisdiction over Facebook but dismissed the claims based on Facebook's affirmative defense under Section 230(c)(1) of the Communications Decency Act.
To have standing, a plaintiff must demonstrate (1) an injury in fact that is concrete, particularized, and actual or imminent, (2) a connection between the injury and the defendant's actions, and (3) that the injury can be redressed by the court. The burden is on the plaintiff to provide evidence supporting these claims. The court emphasized that past injuries are insufficient for claims seeking prospective relief, and speculative future harms do not meet the injury-in-fact requirement. Courts tend to reject standing theories that rely on speculation about third-party actions.
Plaintiffs cannot establish standing by claiming present harms stemming from a fear of hypothetical future harm that is not imminent, as this would allow them to reframe conjectural injuries to create standing. The essential question for standing is whether the threat that generates fear is sufficiently imminent, focusing on the reality of the threat rather than the plaintiffs' subjective fears. Courts have consistently rejected claims based on speculative risks, such as the potential for future terrorist attacks, as these do not provide a sufficient basis for standing. The Cohen Plaintiffs, while detailing previous attacks, do not seek to address past harms but rather seek injunctive relief based on allegations that Facebook's actions heighten their risk of future attacks. This claim is grounded in conjecture, primarily assuming that the Cohen Plaintiffs will be victims of future terrorist acts by independent actors not involved in the case. The complaint fails to provide factual assertions that would indicate a specific and imminent risk to the Cohen Plaintiffs, only suggesting a general risk to residents of Israel, which is insufficient to establish a targeted threat. Furthermore, subjective fears alone do not satisfy the requirement for present objective harm or a credible threat of future harm. Consequently, the court dismisses the Cohen Complaint without prejudice.
On the issue of personal jurisdiction, Facebook contends that being subject to jurisdiction in New York regarding the Force claims violates state law and due process. However, the court finds personal jurisdiction appropriate based on the claims related to the Anti-Terrorism Act (ATA), which allow jurisdiction over defendants with minimum contacts in the U.S. The court explains that personal jurisdiction requires: (1) proper service of process, (2) a statutory basis for jurisdiction, and (3) compliance with constitutional due process. Facebook does not contest the propriety of service, so the court focuses on the statutory and due process aspects of exercising personal jurisdiction.
Statutory bases for personal jurisdiction are outlined in Federal Rule of Civil Procedure 4(k), which allows for jurisdiction when a summons is served or a waiver of service is filed, particularly when authorized by federal statutes. The Force Plaintiffs assert that the service provision of the Antiterrorism Act (ATA) applies, allowing personal jurisdiction over Facebook due to its nationwide service of process. The relevant statute permits service in any district where the defendant resides, is found, or has an agent. Courts have interpreted this provision to authorize nationwide service, and Facebook does not contest the service's validity but argues against the cited case precedents.
Due process considerations require that the exercise of personal jurisdiction aligns with fair play and substantial justice. For federal statutes with nationwide service, the focus is on a party’s contacts with the United States as a whole rather than individual states. Facebook, incorporated in Delaware and based in California, has sufficient contacts with the U.S. to satisfy due process requirements. As such, the court concludes that exercising jurisdiction over Facebook concerning ATA claims is constitutionally sound.
Regarding pendent personal jurisdiction, plaintiffs must demonstrate jurisdiction for each claim. Under this doctrine, if a federal statute provides for nationwide service and both federal and non-federal claims share a common nucleus of operative fact, the court may assert personal jurisdiction over related claims even without independent grounds for jurisdiction. A common nucleus exists when the facts for both claims substantially overlap. District courts have discretion to exercise pendent personal jurisdiction based on considerations of judicial economy, convenience, and fairness.
Pendent jurisdiction over Facebook is favored concerning the non-ATA-based claims in the Force Complaint, as these claims share underlying allegations with ATA claims, specifically that Facebook's services aided Hamas in attacks and that it failed to prevent misuse of its platform. There is no inconvenience to Facebook in litigating these claims in the same court, and splitting them would not conserve judicial resources. The court asserts personal jurisdiction over Facebook regarding the Force Plaintiffs' claims, denying Facebook's motion to dismiss for lack of personal jurisdiction.
Regarding the Communications Decency Act (CDA), there are two main disputes: whether the claims fall under Section 230(c)(1) and whether Facebook's application of this section is extraterritorial. The court finds that the alleged activities fall within the immunity of Section 230(c)(1) and is not extraterritorial.
The legal standard for a motion to dismiss under Rule 12(b)(6) tests the sufficiency of claims for relief, requiring the court to accept the plaintiff's factual allegations as true. A claim survives if it presents sufficient factual matter to be plausible; however, a defendant may dismiss a claim based on an affirmative defense apparent in the complaint.
Section 230(c)(1) protects internet service providers from liability for third-party content, stipulating that they cannot be treated as the publisher or speaker of information provided by others. The Second Circuit outlines three criteria for immunity under this section: the defendant must be a provider of an interactive computer service, the claim must be based on information from another provider, and the claim must treat the defendant as the publisher or speaker of that information. The Force Plaintiffs do not dispute the first two criteria but contest that their claims treat Facebook as the publisher of third-party content, which would invoke Section 230(c)(1) immunity.
A defendant is shielded under Section 230(c)(1) when the cause of action necessitates treating them as a publisher or speaker of third-party content. Courts must evaluate whether the plaintiff's alleged duty violation stems from the defendant's role as a publisher. This interpretation indicates that Section 230(c)(1) applies not only to claims explicitly referencing third-party content but also to those that, even if indirectly, rely on that content to establish liability. Judicial decisions underscore that choices regarding the removal of content from a website are part of a publisher's editorial discretion.
In the case of the Force Plaintiffs against Facebook, their claims, despite being framed as content-neutral, fall under Section 230(c)(1)’s immunity. They argue that Facebook should be liable for providing services to Hamas by allowing account access and failing to shut down Hamas accounts. However, such claims cannot be separated from Facebook’s role as a publisher, as its decisions about user access are integrally linked to content expression. Section 230(c)(1) prohibits imposing liability on platforms for third-party content, including offensive or harmful material. The essence of the Force Plaintiffs’ complaint highlights that the harm resulted from Hamas’s use of Facebook for activities like recruiting and planning attacks, asserting that Facebook’s facilitation of these actions through its platform contributed to the plaintiffs' injuries.
Facebook's involvement in publishing content is a critical factor in the claims presented in the Force Complaint. Imposing liability on Facebook as a publisher of content from Hamas would contradict the principles established in case law, such as LeadClick Media and Fields II. The plaintiffs have restructured their complaint to emphasize Facebook's provision of accounts, but the underlying allegation remains that Facebook failed to prevent terrorists from using its platform to disseminate content. Consequently, the court concludes that the claims fall under the immunity provided by Section 230(c)(1) of the Communications Decency Act (CDA).
The plaintiffs further argue that Section 230(c)(1) does not apply because of the presumption against extraterritoriality, asserting that the CDA cannot govern conduct occurring entirely outside the U.S. They reference recent Supreme Court decisions, particularly Morrison v. National Australia Bank, to support their position that the CDA lacks a clear indication of extraterritorial application.
The presumption against extraterritoriality holds that U.S. law is limited to domestic matters unless Congress explicitly indicates otherwise. The Supreme Court has clarified that all issues regarding extraterritoriality should follow a two-step framework. The first step is to determine if the statute explicitly states it applies internationally. If no such indication exists, the statute is considered to apply only domestically. Should the statute lack clear extraterritorial intent, the court must then evaluate whether the case involves an impermissible extraterritorial application by identifying the statute's focus and relevant territorial events.
The court must evaluate whether the "territorial events and relationships" related to the statute occurred domestically or internationally. If domestic contacts align with the statute's focus, the application is not extraterritorial. In analyzing Section 230(c)(1) of the Communications Decency Act, the court notes that no precedent exists concerning the presumption against extraterritoriality for statutes limiting liability or granting immunity. The court agrees with the plaintiffs that Section 230(c)(1) lacks clear indications of extraterritorial application, as evidenced by its language and context.
The court identifies the statute's "focus" as the limitation on liability, asserting that its primary legislative intent is to provide immunity to qualifying defendants from being treated as "publishers or speakers" of third-party content, without regard to the location of the content provider or user. This interpretation is supported by statutory interpretation tools, highlighting that Section 230(c)(1) is consistently viewed by courts as prioritizing immunity for defendants against civil suits. The broader context of Section 230, which contains additional provisions that also limit liability, reinforces this focus on protecting internet service providers and maintaining an open internet. The statutory purpose aims to prevent excessive liability for third-party content, emphasizing the importance of preserving free expression online.
The court determines that the relevant location for assessing civil liability under Section 230 is where the grant of immunity is applied, specifically the situs of the litigation, which is New York. It distinguishes between the location of events related to the underlying claim (e.g., where content providers or internet service providers operate) and the location where liability is imposed. The court emphasizes that the analysis must focus on where redress is sought rather than where the claims arise, concluding that the Force Action does not improperly apply Section 230(c)(1) extraterritorially. Consequently, Facebook is granted immunity, and the court dismisses the Force Complaint for failure to state a claim, along with the Amended Complaint in the Cohen Action, both without prejudice. The court also notes the specific nature of the allegations in the Force Complaint related to Hamas and clarifies that the motions to dismiss were briefed together for both actions. Additionally, the court references the Supreme Court's rulings in Clapper v. Amnesty International USA and Susan B. Anthony List v. Driehaus regarding the standards for establishing injury in fact, noting ongoing ambiguity about the application of these standards. The Clerk of Court is directed to enter judgment accordingly.
Some courts have utilized a “substantial risk” analysis for pre-enforcement challenges to laws, but the standard for assessing actuality or imminence in other claims remains ambiguous. In the Cohen Complaint, the plaintiffs rely solely on potential future injuries without demonstrating their likelihood or immediacy, which is insufficient under applicable standards. They argue that Israeli statutes create a cognizable injury in fact due to a protected interest; however, the existence of a statutory right does not fulfill the Article III injury in fact requirement. Courts must find a concrete injury, even when a statutory violation is alleged. Consequently, since the Cohen Plaintiffs did not establish standing, the court does not need to consider the personal jurisdiction issue raised by Facebook. The court also notes relevant statutory provisions for civil actions under Section 2333, confirming proper venue for nationwide service based on the plaintiffs' residence or where the defendant is served. Facebook's acknowledgment of proper service in New York supports the conclusion that statutory venue requirements were met. Facebook contends that the ATA cases are not applicable, asserting that American defendants have different expectations concerning jurisdiction compared to foreign defendants.
Facebook lacks supporting legal authority for its proposed restriction on the application of minimum contacts and personal jurisdiction under the Anti-Terrorism Act (ATA), which has primarily focused on foreign parties. However, courts in the circuit have extended similar principles to U.S.-based defendants under other applicable laws. The court finds no compelling reason to treat this distinction differently in the current case. It refrains from addressing state law bases for extending personal jurisdiction over the remaining claims, as "pendent personal jurisdiction" applies. The district court holds personal jurisdiction over the defendants through a statute allowing nationwide service of process, and the state law claims share a common nucleus of operative facts with the federal claims.
Facebook also seeks to dismiss the federal law claims in the Force Complaint, contending that the plaintiffs fail to present a plausible claim under the relevant statutes. The court does not examine this argument, deciding instead to dismiss all claims based on the Communications Decency Act (CDA). The court notes that both Facebook and the content at issue qualify under the CDA's criteria, with other courts affirming that social media platforms like Facebook are "interactive computer services." The second prong of the CDA stipulates that claims must be based on information provided by another content provider, and the Second Circuit has clarified that a defendant only violates this requirement if it contributed to what made the content unlawful. A recent ruling from the District Court for the District of Columbia supported this view, stating that merely manipulating third-party data does not classify a service provider as an information content provider.
Lastly, the Force Plaintiffs reference a subsection of Section 230, which indicates that nothing in the section shall impair the enforcement of federal criminal statutes. While this could suggest a limitation on immunity concerning civil liability linked to federal criminal statutes like the ATA, most courts have rejected this interpretation.
The court determines that the subsection in question does not restrict Section 230(c)(1) immunity in civil actions arising from criminal statutes, applying only to criminal prosecutions. Section 230 mandates that interactive computer service providers notify customers about available parental control products for content limitation. Legislative history indicates Congress aimed to limit liability, responding to the Stratton Oakmont case, which held an internet service provider liable for user comments due to selective content removal. Congress sought to encourage the selective removal of material to support parents' control over children's access to online content. However, some interpretations of Section 230 may discourage information providers from removing content, arguably contradicting congressional intent.
The Force Plaintiffs contend that Section 230(c)(1) does not apply to foreign law claims, specifically Israeli tort law, claiming the absence of foreign law references in Section 230(e) implies those claims are exempt. The court rejects this argument, asserting that the lack of an explicit exception for foreign law means such claims are still subject to Section 230(c)(1)'s immunity provisions. The court cites TRW Inc. v. Andrews to support the principle that enumerated exceptions do not imply additional ones without clear legislative intent.
