fundamental errors that require reversal in this case first the district court or honestly held that the communications decency act the c d a bars plaintiff's claims based on twitter's provision of social media accounts to isis and this was an error because the c d a only bars claims the bar that seek to hold found liable as a publisher and the provision of social media accounts is not a publishing activity for purposes of the court cited some cases to that even the plaintiffs in that case admitted that it was really about the kind of content that was allowed on that website they said that back page dot com was allowing phone numbers and e mail addresses and photos and that if it was a facilitated you're going farther down the line than i thought the district judge did i think that he said that the very act of being a publisher is to determine whether people are going to be permitted to be on your site just like a newspaper would do  the fact that you're going to have your name out there some kind of a handle that's a discrimination in short any type of a decision in this case by twitter whether to permit an account is in and of itself a publishing decision well i don't think that's correct your honor because this court has said in the barn's of yahoo decision that publication for purposes of the c d a is reviewing editing and deciding whether to publish specific content but just that perhaps certainly is that but the question is whether the various stablish with of an account and giving somebody a handle isn't in and of itself a publishing decision well as it go that far i don't think it is a publishing decision because handing someone a tool that can be used to create content is not the same as disseminating content and if you give someone a typewriter that's not the same thing as saying well you can now now you could publish an op ed piece in my cases to point to either way on that but you know it's it's awful it struck me as it's awful difficult to know in advance of course who's who's at applying for accounts is it don't you have a much stronger case talking about once you're aware of how the meetings is being used and the words i thought your theory was look isis is using twitter as a command and control means they know it and they are allowing isis to continue to command and control their troops using this means it doesn't matter what they say blow up this don't blog that meet here it doesn't matter the content it matters that the means of command and control is being provided that's correct are going to have a strong argument about maintaining that ability to command and control as opposed actual limiting yourself a little too much because provision of the account it's difficult to know right but maintaining an account once you know is not something different well it's both in the way i use provision of accounts includes maybe the maintaining of accounts and i think one way to understand that this is there's a separation here between giving them access to the service and the creation of content with that service is the fact that account creation is not necessarily tied to content creation on twitter why is maintaining the account once you know they're being used or why why does that have to be tied to content distribution well my point is that it's not tied to content distribution and that's why the c d i does not apply and your whole theory doesn't survive if it's tied to content well we certainly rely on content for purposes of causation i'm happy to get into that but the breach of the doomed because that's your problem you're  on your own but tard because if there is no content then how do you get to the foreseeability how do you get to the causation i don't see how you how you're doing it but i'm interested to hear your argument well the we start which is what you're actually claiming here right well that there is a violation that you can bring an action under two three three three am iraq two three three three a creates a private cause of action a can you walk through that for me yes it gives rise to a private cause of action when there has been a violation of the material support statute but it doesn't say that it says by reason of an act of international terrorism and  and some circuits have come out the other way so we have to decide for ourselves so maybe you can explain that i think the vast majority of courts have held that when those material support statutes are violated that is  we certainly don't allege that twitter was going out and planting bombs where they gave the ball it's a shoot no it doesn't meet the definition of international terrorism i think it meets the definition of international terrorism that has been adopted by the majority of courts so we would have to say that notwithstanding the language of the statute we will say that two three three ninety eight which doesn't even use that language act of international terrorism is an act of international terrorism is is that what we would have to do well on clear right now but i believe it might have been passed after the time from ending in this in this case had had passed but the but that since actually however it's very difficult to understand but it actually makes more sense and in this context you know a person who aids in a pet by knowingly providing substantial assistance though doesn't say to whom you have to guess but that seems to be more what you're arguing here right well that it would it does perhaps fit better into a claim of aiding and abetting or possibly conspiracy and given the right to application of jazz i would say that it applies but in terms of separating account creation from content i think that we don't even get there and tell we're looking you've even established that you were injured by reason of an act of international terrorism i mean that's just a defense to that so i'm i'm concerned about how we even get to that there is you have a right under two three three three a that's what i was asking the arc of through it well i would my answer to that i think would be that that was not the basis for the decision in the district court and think the district court should be permitted to address that in the first instance if that's going to be a sticking point and you want to the and said it wasn't shown here so i don't think you're correct that the district court didn't review whether you met the requirements of two three three three a well the vast majority of courts that have dressed the standard for proximate cause ation under the anti terrorism act have ruled that there is no requirement of directness you don't have to show that there's no need to trace specific provision ritual support to a specific attack and in cases involving financial contributions to terrorism that's perhaps a little bit clearer because money is fungible you can't say well i gave money to the charitable wing of this terrorist organization and so that's different from the money that was used by the organization in any way if a terrorist organization somewhere else some other arm of it causes an injury you don't have to show any connection between the support and the injury well  the nonfinancial material support given to terrorist groups is really just as fungible as money and in fact the supreme court held in the humanitarian law project case that all forms of support to terrorists help is there any relationship between the use of twitter here and the particular attack so we are correct we do not allege that the perpetrator here had a twitter account or specifically aided by twitter but under the precedent of other courts that have addressed proximate cause ation all you really have to show is that the defendant held the terrorist organization and then the terrorist organization carried out the attack now there are some limitations based on how substantial the support is and temporal limitations under that argument though doesn't every company that has any resemblance to twitter like google microsoft  but you name it phone companies aren't they all going to be bankrupt in about twenty days because you'll sued them because their very existence or somebody has an account that they know happens to be from i is you're saying that they made it possible and yet there's no connection to any specific act there's no allegation in the sack that your twitter played any role at all that any of these people had anything to do with this particular act of terrorism can that really be what congress intended to thirty of the communications decency act or the eighty itself well there are two responses that the first is that there's a there's a very important limiting factor under the anti terrorism act of it which is it's a santa requirement unless you're knowingly giving material support to a terrorist you can't be held liable and thankfully it's not an occurrence that happens every day that american companies are knowingly providing support to terrorists but you're but you're arguing the council that anybody you know is take a phone company if they know based on your claim that there's an isis member who's using that account content neutral i don't know might be talking about mother's day i don't know they're liable according to your theory could that possibly be what congress intended well i think at that turns on the fact that her has been extremely instrumental to the rise of ice is here and without twitter what evidence do you cite for that but we have we haven't heard that they have accounts but what what evidence do you cite in your complaint that shows that twitter has used been used by isis to cause specific acts of terrorism well twitter used isis to great effect they used it to recruit thousands of new members they were used to to fundrais resources but then you're getting to content then you're getting to the content so you're if you're saying that just establishing the account is and then you get to the question that the district judge wrestled with but once you get the content and you're saying that twitter permitted them to put certain content in there then they're publishers that's really clear under almost any case i know i think that under the internet brands case in the in the barnes or yahoo case those cases stand for the proposition that there are there are limits to boyfriend had posted nude pictures and such and then and yahoo then didn't bring it down so that was a promissory estoppel case and clearly it was based on content there's no harm in that case based on content and  this court held that the cia didn't apply because the duty was independent there of yahoo's yahoo's duty as a publisher and if the duty stemmed from the promises that it made to plaintiff and similarly here the duty to duty stems not from twitter's role as twitter in this case and before i get into the substance of my argument judge of kuta on pages fifty one fifty two of our brief notes six we cite to the district court record where counsel for ms fields was asked by judge aurukun specifically waived reliance waived any need to a further amendment to add the aiding and abetting provision of jasta contending in conceding that it would be barred by section two thirty as to the merits of the case there is simply no theory for holding twitter liable in this case other than its role and it duty as a publisher decisions about which particular third parties may have accounts on its platform in other words who to block from supplying content on the platform is clear publishing activity this court in barnes explained that section two thirty immunity applies when quote the duty of the plaintiff alleges the defendant violated derives from the defendant's status as a publisher or speaker here the alleged duty is control over who twitter allows to speak and publish on its publishing platform that is parroted medically what publishers do just as judge smith observed in the topside argument newspapers do when they decide which op  that a provider a user shall not be treated as a publisher a speaker of the information is iran that is that the protection yes that is what it said and this court and i think at least four other circuits have said that what that means is and for reasons that are explained in some at some length in the on balik decision in roommates and also in the various panel decisions in roommates that and then in the statute that language provides an immunity for liability for the content supplied by third parties  information content providers as that term is defined in the statute and the reason for that the this court has explained is that otherwise you would have companies like twitter and the others identified by judge smith facing what chief judge kozinski said was death by ten thousand duck bites that is lawsuit after lawsuit which we are not up to ten thousand yet in the circuit but we are we are certainly moving right along every time an act of terrorism is committed in the world some of the lawsuit is filed against twitter or google or facebook or often all three of them for liability for having allo supposedly somebody associated with that organization affiliated with the organization from having an account in which the content complained of in this complaint is published you agree with  it that this the very fact of primitive someone to establish an account is an act of publication and bob a pub acting as a publisher letters that absolutely and that would be true even if thus sue unlike this case the reason why there was a complaint about not excluding somebody or some groups had nothing to do with the content here of course the whole point of regulating accounts is to regulate content on the platform this is not a complaint that twitter is failing to exclude every prime number account holder this is failing to exclude supporters of isis pacifically because of the content of their messages the letters twitter sent them everybody and isis gets a free for that they can access t er better and i mean facebook is doing that in africa right everybody gets a free laptop so you can get on to facebook so i click providing a free phone which is necessary to access twitter with that be that they've been in for that so i'm divorcing section two thirty from whether or not there is in fact a violation of the eighty eight by doing that but focusing as i think judge a cootie you're asking about whether section two thirty applies section two congress has not thought it necessary to for example immunize companies that provide megaphones or walkie talkies or telephones for the content of computer service providers like twitter in that case it was prodigy and there was also a case involving compu serve is applying publisher liability liability as a publisher for things that account holders were saying and not to and doing on their accounts to my knowledge there haven't been al any any verdicts or judgments holding of arisan liable because i  defamatory remark on my view rise and phone if that were to occur the american telephone case which the parties cite in the briefs in the cases reflect suggest that there is a kind of common carrier liability in those circumstances but if it weren't the case that would be a problem congress would have to address the the walkie talkie provider or the you know i'm just giving you a tool whether it's a laptop a telephone a megaphone no it doesn't because what the courts whose decisions precipitated anatman of section two thirty we're concerned about were judgments that providing an account on a publishing platform that's what is was being analogized for civil liability purposes like providing someone the right to publish to write and publish an article or an op newspaper or in a book that is the courts were applying liability based on a publisher's duty to what the courts found was the analogous circumstance in which you  hosting a platform for expression in this case it was an internet platform but the analogy was to the traditional print television platforms where i looked at it  think the way you probably are looking at it let's for separate the two let's work not worry about the c d a million just look at the end of terrorism act and don't don't you agree that if you look at it and you say what what is twitter providing they're providing the means and methods of command control can they do anything about it i don't know maybe they can but you can separate that from content right and say yes we provided the means and methods we provided the means and methods now you turn to the sea to say well is there a publisher exception for that well to the extent it relates to content sure and maybe even proximate causes a problem when you just open the account but once you know how the system is being used to allow it to continue to be used that way if you could do answer is the answer depends on the answer to the question that judge or khuda asked my friend on the other side which is you you have a civil remedy and private party has a civil remedy if the private party was injured by reason of an act of international terrorism now i'll leave aside the causation issues because i think your question goes to whether or not if section two thirty didn't apply to that overly content based decision by twitter that is to allow them to knowingly allow them to continue to broadcast you know operational orders which twitter twitter would never do but leaving aside the fact that section that's the heartland of what section two thirty per defends if the question is is that an act of international terrorism the answer is there is nothing in the language of the statute and with all due respect to to my friend suggestion that a violation of twenty three thirty nine a or b is ipso facto an act of international terrorism it plainly is not an act of international terrorism is a specifically defined term in the statute we by the parties fully briefed this in judge front of judge or a he didn't see a need to address that point and ruled on alternative grounds but in order to judge mcauliffe to a stablish liability under your hypothetical they would have to show under twenty three thirty one one which is where act of international terrorism is to find that these were that twitter engaged in activities that they involved violent acts or  dangerous to human life that violate the criminal laws and be that twitter appear to have intended to intimidate or coerce a civilian population now the operation of a platform for freedom of expression a general purpose offered to everyone who complies with the twitter rules knowing that out of the billions of account holders there will be a handful or some hundred people who doesn't meet that definition but says we should follow other courts other circuits that have said that doesn't matter a violation of two three three eight nine era be a in the seventh circuit or the rothstein case in the second circuit the rothstein case the second circuit circuit noplace held that civil liability attach simply by establishing that something in a criminal prosecution would violate twenty three thirty nine b or issue and boy am didn't either judge you know we disagree with you know for a number of reasons with with the second there there is a district court and a district court decision i believe judge kogan decision i'm blanking on the net the lindy versus era bank case which is now pending in the second circuit where he did say that he said i'm not going to in struct the jury on the elements of twenty three thirty one because i find that this alleged a violation of the material support provision that was wrong and that would be wrong for you to follow that is is is your answer to judge with respect to the construction of the statute is that your answer to the humanitarian law project language which you know is very broad saying that providing the foreign terrorist groups with material support in any form for this terrorism is that your answer and that's part of my answer part of my answer is that humanitarian law project involve the question of criminal liability where causation is not relevant and nor is the definition of an act of international terrorism relevant so can you and the other the other point if i pay if i just may is that as this court pointed out in the i'll hire remain case as the supreme court itself was very careful given the first amendment issues that are embedded in a lot liability under the material support provision and indeed that is a part of twenty three thirty nine b it's it's it's the very last subsection that that that we're congress said this will never apply if it otherwise would be violative of the first amendment that's the other part of my my answer even the supreme court said this is a decision the logic of this decision may not carry into other circumstances because of the serious first and then the issues involved let me go can i just quickly ask you to address the reason of language we this past there has to be some direct relation should we read that into the by reason of is there any basis for doing that or is there any other link yes you should do that and there is very definitely a much more substantial link as we pointed out in our brief the by reason of language has a particularly clear and direct provenance that is that was the language that was used to establish civil liability in the sherman act it was deliberately used in the clayton act it was then used in rico and it is now used in the eighty a in the civil remedy provision the supreme court has held in the holmes case in the end sic ace in the heavy group case and this court in the couch case has recognized that by reason of goes beyond import something beyond reasonable  foreseeability and in the supreme court's repeated language that it requires showing of quote some direct relationship between the injury asserted and the injurious conduct alleged and of course it was the basis that was the basis for the supreme court's doctrine that in the n t trust contacts the original context in which this language was used that only direct purchasers not indirect purchasers are duck bites this case is a parodic matic example of this this was the very first one of these cases brought against twitter or google or facebook but it has generating you know nanny many many copycat cases and and unless these companies are going to are it is very important for this court to speak clearly and i think quite emphatically on the section two thirty grounds other otherwise we are going to be even to death by ten thousand bytes of the questions thank you i thank you arlen really give you some generous time to respond thank you and i don't think i want to be sure how much time did we give him to start with we give him just ten minutes ok all right as well be sure ok go ahead i appreciate the extra time your honor then turning to the by reason language and that seems to be something that we're focusing on i think it's important to understand that congress intended the anti terrorism act to be a fairly expansive statute and that the by reason of language has been distinguished in the context of the eighty from the way that language might be used and in other cases  issues i don't think that's a central issue of an issue at all but the reason to read that language expansively here is that it's going to be almost impossible to ever show a direct between support that someone gives to a terrorist organization and its back to that organization carries out and so if you require something that the reason why after you pleaded your second medic complaint don't think we can overstate it so it gets down to again the fact that the accounts were opened your mind knowing that these were isis people who opened the accounts that matter what they use them for just that they opened them you said there's a duty under the eighty eight to stop that and if they don't they're liable you know for person because causation you do you have to look at the content of the accounts and that's why and then you're killed under thirty right no because i think under under barnes and even on an internet branch case also cases are those are clearly distinguishable are they not from this case i don't think that's right i think those cases stand for the proposition that if you're looking contents per soley for purposes of demonstrating causation and not demonstrating the the underlying breach of duty and that's permissible content was certainly a central part and the barnes case and just because i think would be a far too narrow interpretation of barnes to say well that's a promissory estoppel case and this involves a different type of claim and so doesn't apply here i think it stands for a much broader principle and i think if you if you choir are more of a direct going back to the directness requirement if you and used that communicate was somebody else who directed him to kill these people you've got a whole different story there well you don't say that you don't use the content is essential to your claim but it's kind of a wink and a nod to have this twitter knew what isis was and it knew that by giving material support to isis it was going to help to carry out terrorist attacks and similarly it's not material support that troubles me a little bit because what if what you say content and you have a problem don't you  if it's materiel means and methods of complex or size and commanding control content what was said nature of comments not relevant it's the jeep not how they drove it just well don't you run into trouble once you say  it's what they say no because i think i think it's really based on when did the breach of the duty occur and i'm sure all support provisions of the eighty eight were violated the instant that the tool was given to the terrorist if you give money to a terrorist organization you have sold for money and the supreme court has said that if you give anything to a terrorist organization it helps them to sell it a terrorist attacks and i don't think that can be any doubt given how important these twitter accounts were to isis that they played a material role in all the attacks