morning united states versus richard's morning and the final case lando vs eisenberg is on submission we'll hear the first case grammar good morning your honour's my name is daniel barnes i represent the appellant i'm from the issue in this case is whether by signing the jobsite agreement appellant grammar c agreed to be bound by written by the respondent union's collective bargaining agreement or c v a including the mandatory arbitration provision in the c b s doesn't doesn't that as you just say the chance and you clearly indicate that you agreed to and i quote abide by all terms and conditions of employment for the c p a your honor it does say that but i think you're taking it a little bit out of context i think what the agreement what the g s a does is it lists a subset of c b a provisions for which the j s a applies at the very least this has to make contributions to the welfare and pension funds for various fringe benefit plans the subset that's your honor what the what the what the j s a does is it picks certain clauses certain terms and conditions of the c b a and incorporates those into the j i say these are sophisticated parties your honor particularly the union and the welfare fund if they had wanted full incorporation they could have just simply said the j the collective bargaining agreement and all its terms and conditions are hereby incorporated by reference it's a very simple sentence that's all they had to do they didn't do that i mean it seems to me that what about this the wrong way it seems to me you've got a demand for withdrawal liability from the fund right that's correct and then you came running into federal court to get a declaratory judgment against the fund and the union right correct to say that we weren't we did not have withdraw liability but ordinarily under the m p p a there would be an arbitration for an employer who's challenging withdrawal liability right but our position was that the n p a did not apply because the c p a did not apply and went away so you think that parties can contract out of being an employer under the m p p a will just although we're an employer although we're making contributions to the fund we'll have an agreement among ourselves that that doesn't count you think you can do that i think we can your honor and we did and these j s a is are not uncommon in this industry well but you made contributions to the fund right right and so you were an employer at a time right your honor but the g s a explicitly says in its final sentence the amount of the card payment should be measured by the hours of work performed by the owner operator and subcontractors employee and then finally this agree this agreement is effective as of the date above set forth and shall remain in full for its full force affective and so such until such time as the job described is really that we're not liable under because we're no longer in the business right isn't that really your argument that's a defense at an arbitration it's not saying you're not an employer you're on a right i think you're putting  the cart before the horse you have to get to the arbitration first and that's the sole issue that was decided before the district court the m p p a provides for arbitration right it doesn't it doesn't matter whether you contract it or whether it's in the p a requires arbitration for an employer who's challenging withdraw liability right so why isn't that where you ought to be first and then if it turns out that you have withdrawal liability then you can try to go against the union to cover the costs that you're stuck with your honor but again it goes back to what i said a moment ago which is we're putting the cart before the horse which is there has to in order to be subject to the m p p m p a a we had  because the j s a doesn't make us one so if we if we were to agree with you that the district court improperly dismissed your claims against the fund given that the fund in the union  are separate entities and the fund is not a party to the agreement then why should we just remain to to district court to consider in the first instance whether you are an employer with respect to address that's exactly what we should do your honor that's one of the options this court has and that's that's an option we would advocate for because ultimately your honor this was a motion to dismiss we never considered any of the factual issues that happened there was a on page nine of our brief there's a reference to a sort of an affirmation an affidavit put in by the by the president of grammar c with regard to his communications with the leadership of the union about what the seat what the what the j s a was going to me and the court didn't consider that it went solely to the issue of whether or not we incorporated by reference the entirety of the c b a and again if you look on page eight twenty seven of the record that's not what it sets it lists a subset of c b s provisions that are going to apply to this that to say i'm still confused are you disputing that your client was an employer obligated under the m p a to make payments to the plan to plaintiff pension fund at some point during the life of the period covered by the genocide you disputing that yes you're you're disputing that you were obligated to make payments to the pension plan and now we're not disputing that we were obligated to make payments to the pension fund because that's in the  statutorily i don't know we never got to the issue of whether or not the n p a applied because the district court immediately found the arbitration was required we never got to any of those issues find the your employer anyway we just had have to conclude  ends and so it's the last sentence of the jazz say once it ends that's our that's the end of our obligation say understand here your honor there that this was a very small part of a much larger job our clients were called in to do there was a we all know that are familiar with the giant stadium construction project this was the demolition of that our clients a very small role in that they needed special i services union labor was required our client came in did a very small part of a much larger job it never would have agreed to the c v a and all of this all of this subsequent liability had it known that it was being forced to incorporate by reference the c v a in the j s a it never agreed to that that's agreed to make it but they agreed to make contributions to the fun right they did during that during the time they were paying the employees but not after that that's what the j s a sense are there lots of people making contributions to the fund that are not employers your honor the record silent on that that's that's that's not that's not what we're we're here to talk about i make contributions to the fund i'm sorry and i make contributions to the fund i would assume not i soon the fun would probably take your money but no thank you thank you nderstand the arguments with respect to the claims grammer sees claims against the union but with respect to the fund the and correct misunderstanding the district court never addressed whether grammar c is an employer or not because it dismissed the petition on the grounds that grammars he was we just free man for the district court to consider the question in the first place your honor that would be a viable option because it's just a court did not address that issue and i think that is the issue that is the cart before the horse find out whether or not a says it's only reason to force in effect until such time as it's destroyed described above that is correct you'll have to make contributions while they're working on this job withdraw liability is a different entity then contributions to the fund they only realize no country is in a coming in and therefore they then discuss with the actuaries whether or not to assess a withdraw ability but sometimes it does take some time for the last contribution to the to the union and to the fund to realise that actually as a station of the contributions they've made into the fund the rate how many hours they've contributed there's also assessed as to what the deficiency the fund is currently currently incurred at the time of the draw so even though we're now the and then five years later they get this bill out of nowhere for six hundred twenty two thousand dollars is that the way this usually works there is no typical way it usually works but that would be initial before the arbitrator to if they wanted to challenge the withdraw believe calculations out be something for the arbitrator to determine you know what made up the six hundred twenty two thousand dollars they would be based on their highest contribution rate the hours worked and also the funds deficiency at the time at the door withdraw those will be some of the key calculations not only on their disposition project but others as well correct on all employers that contributed to the fund on the employer question although it may seem common sensical the answer the district judge explicitly and this is in the decision on one sixty eight appendix says contrary to both parties contentions issue in this case is not whether petitioner should be deemed an employer under arrest exposing it to withdraw liability for benefits contributions petitioner would have had made had the parties j s a continue at least that is not the issue yet so it didn't i mean you you you can see that the district court didn't address that question right there on the answer may seem common sense on this that's correct and so what would be the inquiry  what's the factual dispute or what would be the faction of the relevant facts to determine whether the where the grammar was an employer i don't believe there are any facts in dispute i believe grammar c make contributions pursuant to the fucked up argument to the fund and that by definition makes them an employer on their map and that would require them to go to arbitration when you say pursuant to the collective bargaining agreement the collective bargaining agreement determined what the rates would be and what the how you could devise the ultimate payment sixty local five sixty submit that there is no contractual dispute between the union and grammar c it is unequivocal as judge kogan recognize that the j s say explicitly about which peace joy are you relying on the m p p your argument the n p a actually doesn't apply to local five sixty that is an issue for the pension fund my sole issue and the union sole issue is whether or not there is a contract between the two parties and there is there's the j s a in the c b a and the second piece of my argument of the unions argument is that joad judge kogan opinion provides for contractual arbitration as opposed to withdraw liability arbitration to which the union is not a proper party i mean if we send it back to judge hogan we find that there is no real factual dispute that grammar c is an employer seems to me it's all premature for you isn't it in other words there could be withdraw liability found or not found and if that's the case then there's no need to drag you into this at all that is the union's position yes that the union does is not privy to anything that happens with the pension fund that is a totally separate as i set forth in my brief that is a totally separate legal entity the notices don't go out to that if they're on the hook for all this withdrawal liability it was based on misrepresentations made by your union and so they're planning to come after you for indemnification or some other equitable remedy and that very well may be their argument but as mr barnes acknowledge these were sophisticated parties if there was some kind of an agreement well first of all if the union if the union if the president of the union had somehow been given the authority by the pension fund and by the board of trustees of the pension fund you would have to first have that authority in order to even enter into that kind of agreement second if there was that kind of agreement it would have had to be reduced to writing because these are sophisticated parties and second there would have to be a question of whether or not the parties could even agree to circumvent the law and the statute so those would have to be questions that would need to be answered before the union is specifically say the word arbitration or arbitration clause no but it does say that that the company agrees to abide by a by all terms and conditions of employment for its employees so you put you into the situation if there was a disciplinary matter would the individual the greven be entitled to grieve that pursuant to the arbitration procedure i would submit in the union would submit that the union could bring that prevents pursuant to the  itration procedure on behalf of that employee you think there's any dispute as to whether or not graham or she was an employer under the contract or under i don't think it's the union position to weigh in on that because the union isn't involved in that kind of a determination pension fund is part of the litigation you know i'm i'm i mean the fund itself on the risk of determination has not weighed in on the pension fund is a part of the litigation the pension fund is the one who issues then the notice and demand for withdrawal liability of the union has no part in any of that that is all the pension funds actuaries and the pension funds board of trustees they handle that entire piece the union is completely separate from that the fund is not a party to the treaty and so use what i mean that is correct that the fund is not the fund does not negotiate with employers for the provision of terms and conditions of employment for employees that's there are couple of different things that are driving this but mostly it's the deficiency is the economic deficiency that the welfare fund has i think that the court or the panel rightly asked about the amount of the liability as compared to the actual amount of money our clients paid to these particular employees and when you understand the minimal amount of of money that was paid to these employees you understand that our clients never would have agreed to the c b a given the small role at the job new york law as we said no briefs and as the court acknowledged requires clear evidence when you incorporate in extremes of documents into your actual contract that didn't happen here ok if you read the jazz say it's selecting certain provisions at the very least the district court could have found that it was ambiguous and considered the apt the affirmation of mr personnel who testified about his  conversations with the union about what was being done here but what so what is the inquiry to determine whether or not grammars he was an employee or whether among other things whether or not it was making contributions pursuant to the j a or whether or not it was making contributions for to it pursuant to the c p a that it accepted it was make it was a purely contractual matter under this under the jack say what they could have done is taken the actual written language of the c b a actually spelled it out  in in the j s set that they could have said these are the rates of payments these are the the this is the amount of how we're going to count of how we're going to make you calculate what other liabilities you have in they could have done that but instead on that that would make them not an under the j s a or or not it was whether or not the c b i was incorporated entirely ok but what's your basis for saying that parties can contract around employer status for purposes of contributions to a pension  this goes to the larger issue of what was going on here this was a very small part of a much larger project our clients would never have agreed to this liability and certainly the affirmations that were no word by the district court bear that out this a situation where a very long her church risk a there and with that that was borne out of future liability was imposed upon this employer based upon the based upon representations that turned out not to be true but i mean look seems to me your defense is really one for an arbitration on withdrawal liability you're saying i think your brief indicated that your client is no longer in the business in the in that jurisdiction that's correct so that's the reason why you would subject to all this withdraw liability right but our position is that we were never in the business in that jurisdiction because the g s a said we weren't they just made contributions to the fond without being an employer yes thank you more broadly i think that it's important because it'll help us to see a little bit the extent of the district or terror and the very significant burden facing facebook in this appeal there are seven distinct issues that facebook has to weigh in on all of them related to facebook's duties as a publisher number five the e t a does not civilian force federal counterterrorism criminal counterterrorism statutes even though congress are that they do number six the affirmative defense created by section two thirty which is federal and all of the facts here all of the relevant content that is pertinent to this this case in any and any all pertinent conduct occurred overseas well tonight conduct is that there was litigation filed here right speakers is designed to protect them from domestic litigation right yes and so to every cause of action but morrison makes clear that the fact you have a cause of action doesn't make you doesn't make doesn't put the case doesn't put the relevant conduct of the case where the services and their use in their users so just going back to you richard sullivan's question why isn't it that the case that the objects of the statute solicitude are this or the service enactment is very clear from the titles that congress gave the statute under the sea is called protection for good samaritan blocking in screening of offensive material congress is trying to clean up the internet it's very clear in finding defining the words  publisher and speaker in the context of internet providers what congress is doing was good was enabling private enterprise a vehicle through which to to go through the process of cleaning up the internet without risk of liability that is where congress at the extraterritor y that is the cases from the supreme court i think should show and pointed this out seem to to regulate conduct and statutes whether it's criminal conduct or civil conduct in other words securities violations or rico that those cases that say we're not going to reach into other countries unless the statute says that we should so the presumption applies but here it is a defense and a court of the united states kind of like a statute of limitations  defense immunity like that whether it's qualified immunity or or sovereign immunity those are defenses that are posed in the courts of the united states isn't that different in the extraterritoriality analysis whether you're regulating conduct it could be a broader just the courts of the united states i don't see how it's different cause of action your honor why because a cause of action gives a plaintiff would be plaintiff the right to have to state his claims in a federal court cause of action looks at the conduct  did outside of the united states whether you're trading securities from london or engaging in a rico conspiracy in europe that that regulates the conduct those are codes of conduct that we're trying to enforce but here it's it's  congress congress has regulating overseas that congress was regulating which had which in this case occurred overseas as relates to the to the merits of the case the conduct of the case any muni defenses naledge as to whether it's regulating conduct abroad or is more in the nature of an immunity defense like qualified immunity or sovereign immunity were fall in the analysis that's a good question qualified immunity i think is a difficult one i'm not sure of any case that it deals with qualified posted and displayed outside of the united states and does not open people up to liability for a lot of conduct congress is trying to protect children with in the united states but u s citizens  certainly so i say u s citizen abroad might be maybe a different case of it maybe that's where you get into but certainly congress with congress was most primarily acting within the united states a child to act this is access is material that should have been in congress united kingdom about a u s citizen yeah i would think that would be domestic conduct i mean you're talking about the injury is experience within the united states so ok so overcome their presumption against terrorists extraterritoriality to bring your claim in the first place right so what about when plane of spring common law  that the the defense ought to be about to be applied to apply because we're tribute ing the defamatory contents to the to the internet service you know that's a different story but that's not a good that's not the case here you don't have a clear allegations in the we can determine the disappear in the first instance and it under you know following ricci right there are no magic words that have to be uttered and the as i look at the memorandum of facebook's memorandum  said the complaint doesn't make it inevitable and that's the center the complaint argues that they are liable because of the inflammatory statements made by hamas by their tendency to incite using the facebook media isn't that the algorithms your point about the algorithms because i think that that is a concerning point and if you you could say more about how these algor algorithms developed the user content in your view and also if you could as a follow up i don't find any allegations in your proposed complaint that those matchmaking algorithms played a role he did something great he caused the ball to roll down the alley and did it in a certain way when facebook created its platform it created these algorithms designed to do certain things inevitably it's passive facebook this is passive in the sense that as it's happening facebook is standing there for each user promoting content websites advertisements users groups and events that may appeal to a user based on their usage history in this way facebook connect users with other individuals and groups based on projected common interest activities contacts and patterns of usage etc in other words it seems to be at least bringing people together with similar interests and targeting particular users and web groups that have a particular interest for example somebody who's interested in isis might be interested in learning how to make a bomb would an algorithm arrange for that connection under present or under it what so that you know we're heading to is that content is that the use of such algorithms and i'm not saying that they exist i don't know but the manipulation through algorithms does that bring facebook into a different place that's my question as a as a content provider rather than just a phonebook that's you know work classified ads where you break out the types of cars that's the question is is that manipulation crossing into content i think the contrast with the phone  also that work for me facebook puts me in contact with people who i wouldn't have no access to or from all over the world and in this context it's interesting because the people that we're talking about live underground so to speak they're clinton because they have to be because what they do is legal in most countries and because of information that allows those algorithms to make connections that will be no connections right one time i have to put i feel i wanted to turn to the phone book one time and there i find the numbers that i need and make a phone call and make another phone call another phone call all these people are brought to me have you persuaded the department of justice to bring a material support case against facebook i don't believe we tried to honor and that have far as you know is the partner justice ever attempted to bring of material support claim against case against these parties the individuals that are affected most directly have ever much bigger incentive to do so government could do what you did in your complaint i thought that they can't they've chosen not to for whatever reason i don't know why but we see very clearly from congress that this is the reason that this is one of the reasons that the congress wrote the statute the way that they did they wanted by the parties doing this i mean that's that's what congress says in the legislative history well except that they carve out an exception for folks who are internet service provider not do but if and when the department justice is persuaded that this constitutes material support then they could get restitution for all of your clients right in theory and probably without a third coming off the top right in theory ok is there anything a core question that i have asked and i package several questions and one yes i'm sorry he's there anything in the proposed complaint that that specifically ties in terms of the chain of causation specific attacks that cause the plaintiff's injuries the honest answer is i don't remember but it's not necessary  people what they do is they kill people for a living that's their that's their business that's their job but giving the money you are making that happen giving them money or substantial support in this instance through services you're making your facilitating that whole process the amount of the support and tying individual dollars to individual tax is completely unnecessary and again that's that's clear from holder on your aiding and abetting liability argument with the answer for lack of a better word the answer is no first of all but white phone book is not making profit through giving me a phone number i mean obviously it sells the books and there is a marginal profit perhaps you know an initial number that it has they're giving me that information makes if they did if they knew that they were providing service to terrorists facilitating the terrorists communication perhaps perhaps i mean it would depend on the that but in the normal course you wouldn't cable service like c n n or some some parts of fox maybe international and they broadcast segments about terrorist groups and about the recruitment of terrorists and if viewers might say oh this is an exciting this is an exciting group to join with those cable networks be be example the new york times giving facebook and giving some must be a peach in which to do it over they want you know here's a page advertise in order to advocate for what you do to advertise what you do that day that the new york times can't do it the new york times wants to praise from us for whatever it's doing because it's decided that it likes what some us does that's perfectly fine that's not material support even though as you point out your honor it might cause people to then want to join some us that's true that but that's not what that's not what the your camp is doing the thirty chief judge katzman i'm a please the court craig permits from kirkland and ellis for facebook let me begin by just saying that this complaint walks right into the core protection of the c d a paragraphs one twenty seven through one fifty five are replete with allegations about the content that hamas allegedly placed on facebook then paragraph five forty three to five forty seven and paragraph five fifty two all criticize facebook for not removing this hamas based content and there are the federal reporters are replete with decisions saying that the decision to remove content or the even the failure to remove content that somebody wanted to or perhaps should have removed is protected by the c d a so this complaint foursquare is a pretty straight forward and i think judge garrett fits recognized that when he  it is essentially lost because then companies like facebook which carry content from billions of people would be sued to death because every time somebody posted something that another person didn't like or was offended by there would be litigation and discovery overrate courts have in fact applied this early in the case and that the face of this complaint certainly supports the rule set out in it in ricci and i ask you to help me  understand and the implications of western gekko since it's it's the most recent case of the supreme court on the presumption against extraterritorial territoriality and here i'm really focused on method a lot methodological issues how we should go about thinking about these issues so this is a little convoluted so please please bear me there with me so as as you know in that case the court looked at a patent statute which stated and i quote the court chello warned the claimant damages adequate to compensate for the infringement the respondent in that case are you that the statutory focus was on awarding damages just as you are arguing here that the focus is on granting immunity but as i read that the supreme court's decision in western it didn't accept that that argument and what it said was and i'm quoting what a statute authorizes is not necessarily its focus and what the court  determined instead was that the statutes focus was the conduct for which the statute seeks to provide a remedy in other words the court said the infringement so if that's true and if i'm misunderstanding something about the supreme court decision please let me know if that's true why isn't the focus of two thirty c one the conduct for which the statute seeks to grant immunity in other words the provision of information yes your honor i think judge droney hit on a good point when he said that this situation we have here do just want to point out that in this court did refer to the c d a as an immunity so for purposes of both the extraterritoriality issue and your honor was asking posen counsel about it for the current question this is an immunity from as recognized by this court so western gieco said you can go to the second step without dwelling on the first or go to the second and i understand your honour's point being that the supreme court in western gekko in the context of a different statute  did draw a distinction between kind of the the conduct or the issue being regulated and how to remedy it and here we do believe that the immunity is a domestic act and lawsuit is the conduct being regulated we stand by that argument we think that fits within western gekko but in any event if you want another layer to get behind this immunity i don't think it's the conduct well it is the conduct of providing interactive computer service but the the  policy and findings provisions of the c d a make make clear that these were for the benefit of americans and to promote the development of these companies domestically in the united states and the method with a minimal of a minimal amount of government regulation and the mechanism for doing that was the immunity that we're here defending in this court when it would fit it would fit comfortably with the western gecko one of the challenges i think that i have in reading western gekko is that the court could very well have you know flat out approached it methodologically in the way that you are arguing with respect to  and so i'm trying to you know parse it all out what were they what why why did they pursue the course that they were pursuing because it doesn't quite fit the you know the analysis that that you're making well i think i was trying to make a separate point we do stand by the analysis in our brief but the separate point i was making is that the c d a if you look at the findings and policy provisions of that statute make clear that the purpose of this statute the focus is to promote a vibrant and open minimally regulated internet and in the united states for the benefit of all americans and so that could be analogized to the first step of western gekko where they talk about the infringement provision and then the second part is how do you do that it's through this immunity but there's nothing about this that would suggest that there regulating conduct overseas it's all about lawsuits in the united states to protect  companies that distribute content within the united states which is what we do with material support alleged here takes place where california or new york or someplace else is there anything in the complaint that indicates we're the material support of providing algorithmic analysis and processing information provided by users all around the world where does that take place your honor i do want to be clear before i answer that specific question that in addition to affirming on the d a ground we also have argued and believe that this can be affirmed alternatively on the failure to state a claim under the and we don't believe that there's adequate material support allegations and one thing i do want to point out  is that in lynn versus aerobatic the second circuit was clear that merely alleging material support is not enough to state a claim for direct liability there are also have to be the other elements of a violent act and trying to influence another government so they have an even if they can fit within that one part of the material support statute they haven't cite stated a claim for international terrorism but to the specific question the complaint is not clear about where the particular service of providing this platform is too to people overseas but ultimately it's not i thought that they had that your adversary had alleged that the israeli government has repeatedly contacted facebook's office  israel and asking you to stop providing facebook thomas they obligation is in the complaint your honor and on that point i do also want to point out because i think it does get lost in the shuffle that facebook takes effort makes effort every single day to get terrorist content off of its platform its behavior did on the platform we understand that people can nonetheless get on and put it and facebook makes efforts every day thousands of people are employed to get rid of this stuff in a normal chorus without these algorithms the individual would have to affirmatively go out and try to figure out who are my friends who are my allies who should i call in the case of the development of these algorithms that they they are essentially ways that facebook creates networks because it makes these entities that might not have been aware of one another aware of one another and isn't that an issue well let me address that and i need to address it i think in two parts because it both is does state a claim that would be barred by the c v a but as described it also couldn't possibly state a claim under the any terrorism act but i want to make sure i answer both pieces of that with regard to the communications decency act these what have been called algorithms is really just a mechanism to make the user content posted by millions or billions of other people more useful and available to all the people who use the platform and it's no different than google organizing search results or linked in trying to link up an employer and a  person applying for a job these it's the it's the everyday workings of our modern internet which has grown up under the protection of cd eight hundred thirty and so while there is a negative connotation cast upon this is really just the editorial decision that the courts have consistently recognized as protected by the c d a as to how to display prioritize in some cases remove or organize the otherwise completely unwieldy content on one's website and i would just point out that the plaintiffs do have an allegation in their complaint that these algorithms which do connect people but that is the service that's provided that these algorithms they're saying should be used to that remove hamas is content which both confirms that this is all inherently bound up in the content these algorithms and suggestions don't work without reference to the content and  also confirms that their case is about the removal decision which courts including ricci have unanimously said is protected i do want to point out i think my my opposing counsel said that he was drawing a distinction i believe a response to a question from judge sullivan about the duty versus the causation i think his response to whether this is all about content and i believe counsel said that content caused the injury but what they're suing on is duty well that answer confirms that the c t a to thirty protection applies because they're saying one of the critical elements of their claim is bound up with the content in that let's say that you had to say that you had a staff person  on facebook and that staff person just monitors the various websites and decides that you know here are two entities that really should get to know publisher as it fit yes certainly i would say that that determination about how to present the content or how to prioritize it for other people would be part of the editorial decision that that would be protected as part of who's content is it is the content of third parties and this would be the editorial determination as to where to put it and how to how to display it and who should see it that that would be covered and you know that that type of thing has been addressed in many other cases and in fact one case i do want to just cite for the record because we didn't have it in our brief but it became much more apparent after we receive the reply brief is the kimsey versus yelp case from the ninth circuit it's eight three six f third twelve sixty three and the claim there was that yelp was taking people's reviews they were consolidating them giving them star ratings and then having them distributed either through advertisements on other platforms or on google and that is  very analogous to the hypothetical just posed and it was it's analogous to what's been argued by plaintiffs and they're the ninth circuit rejected that claims that it was covered by c d a to thirty and it said yelp is not liable for disseminating the same content in a centrally the same format to a search engine as this action does not change the origin of the third party content and they went on to say that simply put proliferation and dissemination of content does not equal creation or development of content and the ninth circuit's not the only court that has gotten at that point the eleventh circuit in the delbanco versus google case said google's use of algorithms to manipulate search results is protected and in each of those cases you could and i think the ninth circuit said this in kimsey versus yelp you could read characterize the function as being creation rather transformation rather than presentation and the ninth circuit rejected that and said it would  book's business says but that would yeah that's the reason for the algorithm right well it's to make the platform more useful to other people if it turned out historically that turned out to be very profitable business but any online platform when it starts out is trying to they obtain content they presented in a certain way that people might find more useful than the person who did it before and if it turns out to be profitable that's great and maybe not but all of them would be protected because that's the basic function that is a it might make it a clear case of stating a claim putting aside the c d a of maybe being covered under the a today immune from suit even under that scenario yes as long as facebook's not creating the content and or requiring the illegality i think the roommate's decision in the ninth circuit gets at that distinction because in roommates the ninth circuit addressed a situation where users were required to answer questions that when they answered them were violent of the fair housing act and the ninth circuit said you can't do that but then the balance of the opinion which often gets overlooked said that if people are posting their own comments on the roommate's website saying discriminatory or terrible things that roommates would be protected under the c d a against claims relating to that content because it's third party content that they haven't that they haven't sponsored or written and i do want to be careful because well i think i'll leave the answer a i do want to just briefly if i may address the anti terrorism act because we do want to make clear that we believe that a claim is now up and stated under that i already pointed out under arab bank versus land that material support even if they pled it would not be enough but there is also an issue of proximate cause and your honor judge chief judge katzman that you pointed out that there's no allegation that the algorithms played a role in the chain of causation as set forth in this complaint in this case and that is absolutely true there are five terrorist incidents that are at issue under the eighty eight because they are the ones that involved america as the complaint goes through many many of hamas is terrorist acts but the five that matter are the ones that involve the americans and there's no allegation that facebook was used in any of those to support finance or even was even used by the terrorists in connection with those particular attacks but that is something judge gaffney's he did not this would be an alternative basis for a firm because it is on the face of the complaint but if the core allegation is that facebook is providing material support what we're pointing out is that with the five incidents that relate to americans it just doesn't line up because the typical allegation is that people use people from hamas say bad things on facebook then a terrible attack happens that was not talked about on facebook and then afterward somebody from hamas praises it that's not material that's not  the proximate cause there's just no allegation that facebook was in the chain of causation that led to these five particular issues and then finally under aiding and abetting again it's the same point there is no allegation that facebook was used for any particular attack your argument if i could so let's say that we were to find that the focus of two thirty c one is on limiting liability and that the relevant conduct  is the domestic lawsuit in which the statute is brought into play how would you respond to the view that that would entirely exempt  in this particular case yes it would it would be a domestic application each time but i don't think the supreme court's jurisprudence forecloses that possibility and i would also add that in each of these cases is a very different very different statutory language very different statutory construct and if that's how it happens here then that would just be the way it played out under the supreme court's analysis by your view as one could reach your view and a saying that it doesn't mean that every lie limited liability limiting statute becomes exempt from the presumption against extraterritoriality absolutely not this is these cases are done statute by statute and in the context of this what happens for c t a to thirty may very well be different from other statutes that are not before the court and i don't think it would necessarily mean that they all get the same treatment under the supreme court's jurisprudence the court would have to do the that in its crew it's the from the face of the statute that we have to comply not just with two three three a or d whether your primary liability is secondary liability but also two three three one one which is the definition of international terrorism regarding secondary liability the act of international terrorism was the act of one mass against my clients that's there's no question that that was international terrorism there's no question of proximate causation in that case the only question again as i mentioned before is whether or  proximate cause ation quotes boim favorably it doesn't add up point because it wasn't relevant to what was going on in that case but it discusses boy minutes in it says in there on those types of fact rushing was dealing with with support to iran which is a sovereign it has lots of things that it does reason is but on its face it contemplates that there will be situations where a defendant has sworn under oath that he's guilty of the crime charged he's factually allocute did it and he has testified that his pleas voluntary all prerequisites to the court accepting the plea and who nonetheless may be permitted to change his mind we believe that arrow richard's case presents just those circumstances one of the things  absolutely clear in this case is mr richards always maintained he wanted to go to trial the appendix is rife with letters e mails to his coun i want to exercise my constitutional right to go to trial and may not always right he walked into court and pled guilty well that's the key here is what happened to make him change his mind at the day of the plea even his kaiser's no that he said i don't want to take a plea what happened and he tells it to the judge within a week is he felt ambushed and panicked and why is this case different why was this so so threatening to this yes ma'am and that he didn't want to have anything else that did happen oh absolutely that happened and i think that will always happen when somebody like me is standing up for this court arguing this should be a withdrawal of the plea because if you had been answered yes to that question the magistrate could not have accepted the plea although i think she perceived hesitation and truth it's the attorney who stands up and says oh everything's ok and then he says correct that gets to the question of what happened in these few days to make this man change his mind why we contend this plea was not found terry and why and the importance of his acting as quickly as he did he thinks he's going to trial in two weeks his attorneys have been trying to get him to take a plea because they think it's in his best interest but he's been adamant and then all of a sudden on the eve of trial he's told that the government has this motion and eliminate and his attorneys want more money and then the day before the plea at the reverse proffer session he's told what that motion is about and that motion changed the entire dynamic of the case this was a sting operation or richard wasn't found with any drugs and now all of a sudden he's told that the government is going to put on the stand a cooperating witness who's going to testify that richards went in jail basically this is a jailhouse mitt when in jail richard boasted to him that he committed multiple murders in jamaica which denies that's pretty frightening stuff and he's never told there's a lot of frightening stuff that happens in the run up to the magistrate judge specifically told your client that he had the right to change his mind and persistent is not guilty plea and go to trial right and he did that he did change his mind and he did so very quickly but i'd like to get into his mind at that moment because this is what happens  thinks he's going to trial on a fairly straightforward stink he finds out now that when he can't get a fair jury in his mind because they're going to hear he's a murderer his attorneys do not tell him that that motion can be challenged in fact in paragraph sixteen of richard's declaration he states they told him the only way to avoid this was to take a plea and when i think is very telling is that mr kaiser meticulously goes through richard's af and to dispute certain portions of it but he doesn't dispute that and even dispute something else in paragraph sixteen and he doesn't dispute that they asked for more money so what we're left with is a defendant who's panicked he's panicked he goes in he reads these two sentences he says i have to do this now and he reacts immediately and that's really key in this case on the motion  described to richard's on that day and that he was quote unquote nonplussed by that description well that's one of the reasons i think we would need never done cherry hearing in this case i actually find that to be unbelievable that you would hear that you're going to trial on the case he thought he was going to trial on than to be told the jury is going to hear that this jamaican middle aged man is a multiple murder and he would be nonplus opposed to feeling quite coerced and he was and they brought him in the very next day for the plea and i do believe he was he was panicked and he tells this to the judge within a week he tells the judge and he seeks he has no relationship with counsel and where he's essentially acting pro se and within a week he tells the judge please help me i want my plea reviewed i want an opportunity to correct this wrong and the timing in this case is so critical because what  is that this man was not playing games he wasn't waiting to find out what the sentence would be as is and so many of the cases oh if i had more time i go into all the places in the record did he did in his as best he could he said he dealt with that issue not knowing it was a factor but then there after and before the  motion to withdraw twice in the record there are letters that that richard wrote to counsel that are part of the were part of the district court record where he in detail goes through all of the reasons he believes he can challenge the government's evidence is the equivalent of saying i'm innocent these these phone calls that were recorded are not complete i think they were tampered with this money going to this conversation about the money was not accurate he has always maintained his innocence mr keyser said it is much more than a drug i can't i don't know what that is there were many things that mr kaiser says in his affidavit that his counsel threw add to him but and many types of issues they were going but if you read and they're not easy to read i admit that but if you read his e mails and you really you know concentrate on what he's really saying is yes you've got these recordings but i c test those recordings and i want to jury to hear my challenge to those requests because i don't think this is accurately portraying what happened in this situation but if the jury's going to hear murderer i don't think you know i've got a fair shot and again he's not playing games and because he's not playing games he's not waiting for a sentence he's not waiting to find it just seems that he's a guy who couldn't make up his mind and he just was having sort of buyer's remorse a week later but you say that's not playing games  it seems to me that would be consistent with playing games man said ok i guess i should ask you can see into the question yes ok you know of course there's always buy when the defendant moves to withdraw his plea and that's what rule eleven is all about there's going to be always you know a complection of buyer's remorse he stood up a court and said i'm guilty and now he's he's remorseful but in so many of these cases your honor you see that the defendant is waiting for the sentence he's waiting to see if the government case falls apart he's waiting and waiting and waiting to find out if what he did was a mistake in retrospect this man realized right away he made a momentous mistake and he try to undo it he if that doesn't count in his favor then i don't really understand ruhleben favor that your view is if they try to withdraw before they get a p s r or before sentencing then that presumptively should be a basis for them to get that that's one of the things there are other circumstances you could be waiting to see if the governments cooperate and witnesses disappear or are no longer available you could be waiting for others excuse me  may feel that the government had a strong case and then you find out the government's case is falling apart so you want to go to trial there are cases like that i'm not saying every time that that's that there's one hard and fast rule but this court has said and i think it says in the the timing is critical because the timing with flicks whether the defendant truly realizes he made a mistake and if rule eleven doesn't ever allow a defendant to withdraw a plea because he made a mistake feeling he was under pressure then i am not clear what the point of rule eleven is except in those very rare instances where you could prove ineffectiveness of counsel or some kind of true in voluntarily this because of incompetence or something but that's not what the rule says the rule says fair and just and i believe mr richards has met all the factors that this court has announced to show he had a fair and just reason for withdrawing them now mr richards submitted materials after the district court had decided the motion so how how do we consider those materials when the district court didn't have them when it records a little bit confusing but i think the district court said it was going to consider them he filed the district court filed them what happened is when the motion to withdraw was made his counsel wrote of a fairly you know bare bones he searches innocence he says i asked counsel to submit something for the council didn't so he took it upon himself to write a declaration in prison he submitted to the court the court says and the beginning of the sentencing i'm making this part of the record and i've sensually i get the feeling at least it's not entirely clear but i get the feeling that the court read it and understood that he had the power to revisit this decision based upon this assertion of innocence so i think this  consider it as well as well as i want to mention to documents the june third e mail that he wrote to his counsel on the day that the plea offer was supposed to expire and in june twelfth handwritten letter he wrote to his counsel false documents the district had before it issued this decision doesn't mention it where he really in detail explains to his counsel why he thinks he's innocent of these crimes thank you thank you please the court my name is a male bovey i represent the government on appeal and i represented the government in the district court as well i'd like to make one quick factual point and then address some of the other arguments about the claim of innocence the factual point i want to make is that this is not a defendant who said he wanted to go to trial throughout this case there was an e mail on the record before judge stein dated march twelfth two thousand and fifteen where this is appendix one sixty seven the defendant said that's why i really don't want to go to trial this is a defendant who was looking to get the best deal that he could through pleading goshi asians throughout and then at after his guilty plea had buyer's remorse and wanted to press the issue a little further to see if you could get yet still a better deal now with respect to the factor that judge signed considered a one quick question just so i'm clear the letter that was submitted pro se was was  tted after the judge stein had denied a motion to withdraw is actor actor my misunderstanding is this the are we talking about the letter that's been i just two fifty seven to two sixty three  appendix yes judge that was submitted i think that the sentencing transcript reflects that judge stein and the counsel at the time mr haas of eight zero received that it's an e mail but it sounds like the defendant printed it and handed it to counsel on the day of the sentencing but judge john still considered the content of that and i think he treated it essential as a motion for reconsideration and he said it's central and he didn't use these words but having considered it he elected not to  reconsider the decision he'd already made denying the motion and i think in terms of fact finding and what happened here with record development it's important to keep in mind that this was a sentencing with a p s r that said very much the opposite of what the defendant was claiming the p s r the pre sentencing report said this is the offense conduct this is what the defendant did that made him guilty and there's a portion in the sentencing transcript where judge john carefully goes through with counsel and the defendant whether he had any objections to the p s r and at the end of the day judge signed carves out whether that the defendant's complaints about cars are legit he says otherwise do you have objections to the offense conduct in the p s r and both counsel in effect and say no that i don't so in terms of was there an claim of innocence supported by the record or with reference to evidence in the case the defendant essentially abandoned that at the sentencing so judge time was right to consider it as a motion for reconsideration it's clear from the record that he did he was also correct in when he did the fact finding processes sentencing and finding that it really wasn't titled to that much weight because there's a p s r at that point where the defendant is acknowledging his guilt otherwise we would have had to have a hearing in connection with sentencing where we actually offered the recordings and that that could have been resolved that's not the way that the defendant proceed if you look at the timeline so  n trying to understand the reasons for the long delay you've got lawrence girsh were appointed as counsel and looking at his declaration  so and his new counsel did so a few weeks later so why doesn't that that suggest that richards in fact wanted to withdraw and that the judge first as a factual matter i think that what was important in the garage where declaration is had appendix two hundred in paragraph six the sentence beginning despite where the sentence ends before deciding on a course of action and i don't think it was an abuse of discretion for judge stein to look at that paragraph in that sentence where mr garcia says yes mr richards added a general interest and seeking to withdraw his plea but before deciding whether to file that motion he wanted to have the case reevaluated so as a factual matter it's an it's not quite the case that mr dershowitz ignored richard's sentiments or his interest what happened was mr richards agreed to have some a new attorney reassess the record and so he couldn't do a cost benefit analysis and make a decision about whether he wanted to actually file that motion but in any event judge time was very sensitive to this and i think it's clear from the transcript where  ruling he said on the one hand i credit that the july sixth two thousand and fifteen letter is an expression of interest and withdrawing your plea on the other hand you didn't formally filed a motion for almost a year after the fact and so on balance judged on found that that this factor timing did not particularly support a motion and that's telling in the context of a motion where the defendant had the burden and that the standard is a strict one well how does that work then with respect to  prejudice but it is the week after the plea or prejudiced as of the year after the plea i think in this case there was prejudice at both points because what we're talking about are law enforcement witnesses who are get engaged in other investigations using covert identities so there's discussion of the undercover officer where there was actually an application being prepared to try and close the courtroom so there was litigation risk on that about whether that would happen whether or not the government could protect that undercovers identity whether then that recover becomes compromised and can be used in future investigations there are also multiple confidential sources that's all as of the first week after the police yes yes again issues on the table yesterday because the government is entitle to the benefit of the bargain that it struck down and part of the reason that that bargain was struck an important reason was to protect those witnesses identity not just for safety reasons but so that they could be used in subsequent cases and so yes we would have been prejudiced right after the plea or a year later by being required to have those witnesses come into court and testify publicly and risk compromising their identities not just in that case but in other investigations that they were supporting i just want partly address a couple of points the the government has said that this was about the sentence and i think the record refutes that first of all in when he's presented with the draft agreement on may and this is in the appendix his attorney's notes say that he said no i don't care if i get twenty years safety valve not withstanding it wasn't about the sentence for him it was about the right to go to trial he didn't try to negotiate a safety valve he never got you know he tried to negotiate a role in the offense adjustment as being off the table he never got it he also tol or i don't want to go to probation and if he had gone to probation during this period when mr gaucher was doing whatever he was doing he might have found out what the adjustment for  supervisory role would be and whether he had a chance of raising supervisor and he didn't want to do that he wanted to go to trial as to mr grossman there was a little confusion about his role because he thought kaiser levitt had withdrawn his counsel and so he thinks he's these counsel he's going in to review the case he says to his client can i review the case his client says yes review it but directed him that's in the affidavit directed him to do research on the motion to withdraw and never deviate from that viewpoint that he wanted to withdraw to the claim of legal innocence the point made by your adversary is that at the time of the sentencing he can see all the facts in the p r that are inconsistent with a claim of legal innocence i really think that that that is not exactly what happened this mr richards is asked at the beginning of the sentence and if you read the first pages of the transcript there are beginning to seventy and the judge's question in him and he says do you have any objections and he goes back and forth with the judge and at one point he says no or what objections i have is what i said what was given to me to read in the other portion by mr nicholas kaiser what i had to read and then he goes back that you know my objections to do with my poor profession of innocence essentially and your honor that's why i am filing this today and yes i have objections he goes on and on there's like ten pages before the judge finally gets to the sentence because during that time mr richards perhaps inelegantly but he's saying to the judge i am professing my innocence then as a technical matter says we don't have objections to the factual statements in the p s r i don't even know if mr rich's understood what that meant because you know that that's a technical submitting objection to the p s r but he begins right off the bat telling the court yes i do have objections my objections have to do with the fact that i believe i am innocence i want to see if there's anything else i want to just the prejudice question first of all the district found and the government didn't raise it in its brief if the district court had dealt with the initial letter as in effect a functional equivalent of a motion to withdraw and they held a hearing right then and there it's inconceivable the government would really separate prejudice because they're ready to go to trial in two weeks and that would have been a way to handle it and he should i we maintain he should have held an evidentiary hearing in any event because just believing something that