18

‐ 397

Force v. Facebook, Inc.



## In the 1 

# United States Court of Appeals

2



## For the Second Circuit 3

4

5

August Term, 2018 6

No. 18

‐ 397 7

8

S TUART F ORCE

, individually and as Administrator on behalf of the 9

Estate of T AYLOR F ORCE

, R OBBI F ORCE

, K RISTIN A NN F ORCE

, 10

A BRAHAM R ON F RAENKEL

, individually and as Administrator on 11

behalf of the Estate of Y AAKOV N AFTALI F RAENKEL

, and as the 12

natural and legal guardian of minor plaintiffs A.H.H.F., A.L.F., 13

N.E.F, N.S.F., and S.R.F., A.H.H.F., A.L.F., N.E.F., N.S.F., S.R.F., 14

R ACHEL D EVORA S PRECHER F RAENKEL

, individually and as 15

Administrator on behalf of the Estate of Y AAKOV N AFTALI F RAENKEL 16

and as the natural and legal guardian of minor plaintiffs A.H.H.F., 17

A.L.F., N.E.F, N.S.F., and S.R.F., T ZVI A MITAY F RAENKEL

, S HMUEL 18

E LIMELECH B RAUN

, individually and as Administrator on behalf of 19

the Estate of C HAYA Z ISSEL B RAUN

, C HANA B RAUN

, individually and 20

as Administrator on behalf of the Estate of C HAYA Z ISSEL B RAUN

, 21

S HIMSHON S AM H ALPERIN

, S ARA H ALPERIN

, M URRAY B RAUN

, E STHER 22

B RAUN

, M ICAH L AKIN A VNI

, individually and as Joint Administrator 23

on behalf of the Estate of R ICHARD L AKIN

, M AYA L AKIN

, individually 24

and as Joint Administrator on behalf of the Estate of R ICHARD L AKIN

, 25

M ENACHEM M ENDEL R IVKIN

, individually and as the natural and 26

legal guardian of minor plaintiffs S.S.R., M.M.R., R.M.R., S.Z.R., 27

B RACHA R IVKIN

, individually and as the natural and legal guardian 28

of minor plaintiffs S.S.R., M.M.R., R.M.R., and S.Z.R., S.S.R., M.M.R., 29

R.M.R., S.Z.R., 302 Plaintiffs

‐ Appellants

, 1

2

v. 3

4

F ACEBOOK

, I NC

., 5

Defendant

‐ Appellee. 1 6

7

8

Appeal from the United States District Court 9

for the Eastern District of New York. 10

No. 16

‐ cv

‐ 5158

— Nicholas G. Garaufis, Judge

. 11

12

13

A RGUED : F EBRUARY 25, 2019 14

D ECIDED : J ULY 31, 2019 15

16

Before: K ATZMANN

, Chief Judge

, D RONEY

, and S ULLIVAN

, Circuit 17

Judges

. 18

19

20

Plaintiffs

‐ Appellants, U.S. citizen victims of Hamas terrorist 21

attacks in Israel (or their representatives), appeal from a final 22

judgment of the United States District Court for the Eastern District 23

of New York (Garaufis, J. ). Plaintiffs brought federal civil anti

‐ 24

terrorism and Israeli law claims against Defendant

‐ Appellee 25

Facebook, Inc., alleging that Facebook unlawfully assisted Hamas in 26

those attacks. The district court dismissed the claims on the basis of 27

47 U.S.C. § 230(c)(1), which bars civil liability for claims that “treat[]” 28

a “provider or user of an interactive computer service

. . . as the 29

publisher or speaker of any information provided by another 30

1 The Clerk of the Court is directed to amend the official caption to conform to

the above.3 information content provider.” We agree with the district court that 1

Section 230(c)(1) bars plaintiffs’ federal claims. We also conclude, 2

upon a review of plaintiffs’ assertion of diversity jurisdiction over 3

their foreign law claims, 28 U.S.C. § 1332(a), that such jurisdiction is 4

lacking, and we decline to exercise supplemental jurisdiction sua 5

sponte

. Accordingly, we AFFIRM the judgment of the district court 6

as to plaintiffs’ federal claims and DISMISS plaintiffs’ foreign law 7

claims. 8

9

Chief Judge KATZMANN concurs in this opinion except as to 10

Parts I and II of the Discussion, concurs in the judgment with respect 11

to plaintiffs’ foreign law claims, and dissents from the judgment with 12

respect to plaintiffs’ federal claims. 13

14

15

M EIR K ATZ (Robert J. Tolchin, on the 16

brief ), The Berkman Law Office, LLC, 17

Brooklyn, New York, for Plaintiffs

‐ 18

Appellants. 19

20

C RAIG S. P RIMIS (K. Winn Allen, 21

Matthew S. Brooker, on the brief ), 22

Kirkland & Ellis, LLP, Washington, 23

DC, for Defendant

‐ Appellee. 24

25

Sophia Cope, David Greene, 26

Electronic Frontier Foundation, San 27

Francisco, CA, amicus curiae

. 28

294 D RONEY

, Circuit Judge : 1

The principal question presented in this appeal is whether 47 2

U.S.C. § 230(c)(1), a provision enacted by the Communications 3

Decency Act of 1996, shields Defendant

‐ Appellee Facebook, Inc., 4

from civil liability as to Plaintiffs

‐ Appellants’ federal anti

‐ terrorism 5

claims. Plaintiffs include the U.S. citizen victims, and relatives and 6

representatives of the estates of those victims, of certain terrorist 7

attacks committed by Hamas in Israel. They contend that Facebook 8

unlawfully provided Hamas, a U.S.

‐ designated foreign terrorist 9

organization, with a communications platform that enabled those 10

attacks. 11

The district court granted Facebook’s motion to dismiss 12

plaintiffs’ First Amended Complaint under Federal Rule of Civil 13

Procedure 12(b)(6) on the basis of Section 230(c)(1) immunity, an 14

affirmative defense. After entering judgment without prejudice to 15

moving to file an amended complaint, the district court denied with 165 prejudice plaintiffs’ motion to file a second amended complaint on the 1

basis that the proposed complaint did not cure the deficiencies in the 2

First Amended Complaint. 3

On appeal, plaintiffs argue that the district court improperly 4

dismissed their claims because Section 230(c)(1) does not provide 5

immunity to Facebook under the circumstances of their allegations. 6

We conclude that the district court properly applied Section 7

230(c)(1) to plaintiffs’ federal claims. Also, upon our review of 8

plaintiffs’ assertion of diversity jurisdiction over their foreign law 9

claims, 28 U.S.C. § 1332(a), we conclude that such jurisdiction is 10

lacking. Accordingly, we affirm the judgment of the district court as 11

to the federal claims. We also dismiss the foreign law claims, but 12

without prejudice. 136 FACTUAL AND PROCEDURAL BACKGROUND 1

I. Allegations in Plaintiffs’ Complaint 2 2

3

Because this case comes to us on a motion to dismiss, we 4

recount the facts as plaintiffs provide them to us, treating as true the 5

allegations in their complaint. See Galper v. JP Morgan Chase Bank, 6

N.A.

, 802 F.3d 437, 442 (2d Cir. 2015). 7

A. The Attacks 8

9

Hamas is a Palestinian Islamist organization centered in Gaza. 10

It has been designated a foreign terrorist organization by the United 11

States and Israel. Since it was formed in 1987, Hamas has conducted 12

thousands of terrorist attacks against civilians in Israel. 13

Plaintiffs’ complaint describes terrorist attacks by Hamas 14

against five Americans in Israel between 2014 and 2016. Yaakov 15

Naftali Fraenkel, a teenager, was kidnapped by a Hamas operative in 16

2 As used here, the term “complaint” refers to both the allegations of the First

Amended Complaint and those of the proposed second amended complaint,

which sought to supplement the prior complaint.7 2014 while walking home from school in Gush Etzion, near Jerusalem, 1

and then was shot to death. Chaya Zissel Braun, a 3

‐ month

‐ old baby, 2

was killed at a train station in Jerusalem in 2014 when a Hamas 3

operative drove a car into a crowd. Richard Lakin died after Hamas 4

members shot and stabbed him in an attack on a bus in Jerusalem in 5

2015. Graduate student Taylor Force was stabbed to death by a 6

Hamas attacker while walking on the Jaffa boardwalk in Tel Aviv in 7

2016. Menachem Mendel Rivkin was stabbed in the neck in 2016 by 8

a Hamas operative while walking to a restaurant in a town near 9

Jerusalem. He suffered serious injuries but survived. Except for 10

Rivkin, plaintiffs are the representatives of the estates of those who 11

died in these attacks and family members of the victims. 12

B. Facebook’s Alleged Role in the Attacks 13

1. How Facebook Works 14

Facebook operates an “online social network platform and 15

communications service[].” App’x 230. Facebook users populate 168 their own “Facebook ‘pages’” with “content,” including personal 1

identifying information and indications of their particular “interests.” 2

App’x 250

– 51, 345. Organizations and other entities may also have 3

Facebook pages. Users can post content on others’ Facebook pages, 4

reshare each other’s content, and send messages to one another. The 5

content can be text

‐ based messages and statements, photos, web 6

links, or other information. 7

Facebook users must first register for a Facebook account, 8

providing their names, telephone numbers, and email addresses. 9

When registering, users do not specify the nature of the content they 10

intend to publish on the platform, nor does Facebook screen new 11

users based on its expectation of what content they will share with 12

other Facebook users. There is no charge to prospective users for 13

joining Facebook. 3 14

3 According to Facebook, hundreds of millions of Facebook pages are maintained

on its platform.9 Facebook does not preview or edit the content that its users 1

post. Facebook’s terms of service specify that a user “own[s] all of the 2

content and information [the user] post[s] on Facebook, and [the user] 3

can control how it is shared through [the user’s] privacy and 4

application settings.” App’x 252 (alterations in original). 5

While Facebook users may view each other’s shared content 6

simply by visiting other Facebook pages and profiles, Facebook also 7

provides a personalized “newsfeed” page for each user. Facebook 8

uses algorithms—“a precisely defined set of mathematical or logical 9

operations for the performance of a particular task,” Algorithm

, 10

Oxford English Dictionary (3d ed. 2012)—to determine the content to 11

display to users on the newsfeed webpage. Newsfeed content is 12

displayed within banners or modules and changes frequently. The 13

newsfeed algorithms—developed by programmers employed by 14

Facebook—automatically analyze Facebook users’ prior behavior on 15

the Facebook website to predict and display the content that is most 1610 likely to interest and engage those particular users. Other algorithms 1

similarly use Facebook users’ behavioral and demographic data to 2

show those users third

‐ party groups, products, services, and local 3

events likely to be of interest to them. 4

Facebook’s algorithms also provide “friend suggestions,” 5

which, if accepted by the user, result in those users seeing each other’s 6

shared content. App’x 346–47. The friend

‐ suggestion algorithms are 7

based on such factors as the users’ common membership in 8

Facebook’s online “groups,” geographic location, attendance at 9

events, spoken language, and mutual friend connections on 10

Facebook. App’x 346. 11

Facebook’s advertising algorithms and “remarketing” 12

technology also allow advertisers on Facebook to target specific ads 13

to its users who are likely to be most interested in them and thus to 14

be most beneficial to those advertisers. App’x 347. Those 15

advertisements are displayed on the users’ pages and other Facebook 1611 webpages. A substantial portion of Facebook’s revenues is from such 1

advertisers. 2

2. Hamas’s Use of Facebook 4 3

Plaintiffs allege that Hamas used Facebook to post content that 4

encouraged terrorist attacks in Israel during the time period of the 5

attacks in this case. The attackers allegedly viewed that content on 6

Facebook. The encouraging content ranged in specificity; for 7

example, Fraenkel, although not a soldier, was kidnapped and 8

murdered after Hamas members posted messages on Facebook that 9

advocated the kidnapping of Israeli soldiers. The attack that killed 10

the Braun baby at the light rail station in Jerusalem came after Hamas 11

posts encouraged car

‐ ramming attacks at light rail stations. By 12

contrast, the killer of Force is alleged to have been a Facebook user, 13

but plaintiffs do not set forth what specific content encouraged his 14

4 When we refer to “Hamas” as users of Facebook in this opinion, we mean

individuals alleged to be Hamas members or supporters, as well as various Hamas

entities that are alleged to have Facebook pages.12 attack, other than that “Hamas

. . . use[d] Facebook to promote 1

terrorist stabbings.” App’x 335. 2

Hamas also used Facebook to celebrate these attacks and 3

others, to transmit political messages, and to generally support 4

further violence against Israel. The perpetrators were able to view 5

this content because, although Facebook’s terms and policies bar such 6

use by Hamas and other designated foreign terrorist organizations, 7

Facebook has allegedly failed to remove the “openly maintained” 8

pages and associated content of certain Hamas leaders, spokesmen, 9

and other members. App’x 229. It is also alleged that Facebook’s 10

algorithms directed such content to the personalized newsfeeds of the 11

individuals who harmed the plaintiffs. Thus, plaintiffs claim, 12

Facebook enables Hamas “to disseminate its messages directly to its 13

intended audiences,” App’x 255, and to “carry out the essential 14

communication components of [its] terror attacks,” App’x 256. 1513 II. Facebook’s Antiterrorism Efforts 1

A. Intended Uses of Facebook 2

Facebook has Terms of Service that govern the use of Facebook 3

and purport to incorporate Facebook’s Community Standards. 5 In its 4

Terms of Service, Facebook represents that its services are intended to 5

“[c]onnect you with people and organizations you care about,” by, 6

among other things, “[p]rovid[ing] a personalized experience” and 7

“[h]elp[ing] you discover content, products, and services that may 8

interest you.” Terms of Service

, Facebook, 9

https://www.facebook.com/terms.php (last visited June 26, 2019). To 10

5 Plaintiffs’ complaint relies extensively on, and incorporates by reference,

Facebook’s Terms of Service and Community Standards (together, “terms”). The

publicly available terms are also subject to judicial notice. See Fed. R. Evid.

201(b)(2); see also, e.g., 23

‐ 34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health

, 685 F.3d

174, 183 n.7 (2d Cir. 2012) (taking judicial notice of content of website whose

authenticity was not in question). With the exception of such terms that plaintiffs

allege Facebook actually follows in practice, we recount this information only for

the limited purpose of setting forth Facebook’s stated representations about its

policies and practices and to provide context for plaintiffs’ allegations, but not for

the truth of whether Facebook follows those policies.14 do so, Facebook “must collect and use your personal data,” id

., subject 1

to a detailed “Data Policy,” Data Policy

, Facebook, 2

https://www.facebook.com/about/privacy/update (last visited June 3

26, 2019). Facebook also uses information about its users to sell 4

targeted online advertising and to provide advertisers with data on 5

the effectiveness of their ads. How do we use this information?

, Data 6

Policy

, Facebook, https://www.facebook.com/about/privacy/update 7

(last visited May 23, 2019). 8

B. Prohibited Uses of Facebook 9

According to the current version of Facebook’s Community 10

Standards, Facebook “remove[s] content that expresses support or 11

praise for groups, leaders, or individuals involved in,” inter alia

, 12

“[t]errorist activity.” 2. Dangerous Individuals and Organizations

, 13

Community Standards

, Facebook, 14

https://www.facebook.com/commu nitystandards/dangerous_indivi 15

duals_organizations (last visited June 26, 2019). “Terrorist 1615 organizations and terrorists” may not “maintain a presence” on 1

Facebook, nor is “coordination of support” for them allowed. Id

. 2

Facebook “do[es] not allow s ymbols that represent any [terrorist] 3

organizations or [terrorists] to be shared on [the] platform without 4

context that condemns or neutrally discusses the content.” Id

. In 5

addition, Facebook purports to ban “hate speech” and to “remove 6

content that glorifies violence or celebrates the suffering or 7

humiliation of others.” Objectionable Content

, Community Standards

, 8

Facebook, https://www.facebook.com/c ommunitystandards/objectio 9

nable_content (last visited June 26, 2019). 10

Facebook’s Terms of Service also prohibit using its services “to 11

do or share anything” that is, inter alia

, “unlawful” or that “infringes 12

or violates someone else’s rights.” 6 Terms of Service

, supra

. Violating 13

6 Facebook’s sign

‐ up webpage states that by clicking “Sign Up,” prospective users

agree to Facebook’s Terms of Service, Data Policy, and Cookies Policy—all of

which are hyperlinked from that page. Create a New Account

, Facebook,

https://www.facebook.com/r.php (last visited June 26, 2019). As indicated above,

the Terms of Service also purport to incorporate Facebook’s Community

Standards.16 any of these policies may result in Facebook suspending or disabling 1

a user’s account, removing the user’s content, blocking access to 2

certain features, and contacting law enforcement. Id

. 3

According to recent testimony by Facebook’s General Counsel 4

in a United States Senate hearing, Facebook employs a multilayered 5

strategy to enforce these policies and combat extremist content on its 6

platform. 7 Facebook claimed in the hearing that most of the content 7

it removes is identified by Facebook’s internal procedures before it is 8

reported by users. For example, terrorist photos or videos that users 9

attempt to upload are matched against an inventory of known 10

terrorist content. Facebook is also experimenting with artificial 11

intelligence to block or remove “text that might be advocating for 12

terrorism.” App’x 373. When Facebook detects terrorist

‐ related 13

content, it also uses artificial intelligence to identify similar, socially 14

7 Plaintiffs included this testimony in the appendix on appeal and attached and

referred to the testimony in their brief responding to the district court’s order to

show cause for why their proposed second amended complaint was not futile. We

recount such testimony only for the purposes described supra n.5.17 interconnected accounts, content, and pages that may themselves 1

support terrorism. 2

The General Counsel also testified that, for content that is not 3

automatically detected, Facebook employs thousands of people who 4

respond to user reports of inappropriate content and remove such 5

content. Id. Facebook also has a 150

‐ person team of 6

“counterterrorism specialists,” including academics, engineers, and 7

former prosecutors and law enforcement officers. 8 Id

. 8

8 Facebook has been criticized recently—and frequently—for not doing enough to

take down offensive or illegal content. E.g.

, Cecilia Kang, Nancy Pelosi Criticizes

Facebook for Handling of Altered Videos

, N.Y. Times (May 29, 2019),

https://www.nytimes.com/2019/05/29/technology/facebook

‐ pelosi

‐ video.html;

Kalev Leetaru, Countering Online Extremism Is Too Important to Leave to Facebook

,

F ORBES (May 9, 2019),

https://www.forbes.com/sites/kalevleetaru/2019/05/09/countering

‐ online

‐

extremism

‐ is

‐ too

‐ important

‐ to

‐ leave

‐ to

‐ facebook; Julia Fioretti, Internet Giants Not

Doing Enough to Take Down Illegal Content: EU

, Reuters (Jan. 9, 2018),

https://www.reuters.com/article/us

‐ eu

‐ internet

‐ meeting/internet

‐ giants

‐ not

‐ doing

‐ enough

‐ to

‐ take

‐ down

‐ illegal

‐ content

‐ eu

‐ idUSKBN1EY2BL; see Staehr v.

Harford Fin. Servs. Grp., Inc.

, 547 F.3d 406, 425 (2d Cir. 2008) (“[ I]t is proper to take

judicial notice of the fact that press coverage

. . . contained certain information,

without regard to the truth of their contents.”).18 III. District Court Proceeding 1

Plaintiffs brought this action on July 10, 2016, in the United 2

States District Court for the Southern District of New York. On 3

consent of the parties, the action was transferred to the United States 4

District Court for the Eastern District of New York on September 16, 5

2016. 9 In their First Amended Complaint, Plaintiffs claimed that, 6

under 18 U.S.C. § 2333, Facebook was civilly liable for aiding and 7

abetting Hamas’s acts of international terrorism; conspiring with 8

Hamas in furtherance of acts of international terrorism; providing 9

material support to terrorists; and providing material support to a 10

designated foreign terrorist organization. 10 Plaintiffs also alleged that 11

9 The parties moved jointly under 28 U.S.C. § 1404(a) to transfer the case to the

Eastern District of New York because plaintiffs’ counsel had already filed the

Cohen action there, see infra n.11, and resolving both cases in the same district, the

parties argued, would be efficient and convenient.

10 18 U.S.C. § 2333 provides civil remedies for injuries suffered through acts of

international terrorism. Plaintiffs also cite to 18 U.S.C. § 2339A (providing material

support for terrorism) and § 2339B (providing material support or resources to a

designated foreign terrorist organization).19 the district court had diversity

‐ based subject matter jurisdiction 1

under 28 U.S.C. § 1332(a)(2) to adjudicate Plaintiffs’ Israeli

‐ law tort 2

claims arising from the same conduct. 3

Facebook moved to dismiss plaintiffs’ claims for lack of 4

personal jurisdiction under Rule 12(b)(2) and for failure to state a 5

claim under Rule 12(b)(6). The district court determined that it had 6

personal jurisdiction over Facebook, a ruling that Facebook does not 7

challenge on appeal. But the district court also held that 47 U.S.C. 8

§ 230(c)(1) foreclosed plaintiffs’ claims because they impermissibly 9

involved “treat[ing]” Facebook “as the publisher or speaker of any 10

information provided by” Hamas. S. App’x 18–23 (quoting 47 U.S.C. 11

§ 230(c)(1)). 11 On May 18, 2017, the district court granted the motion 12

to dismiss under Rule 12(b)(6) and entered judgment in Facebook’s 13

11 In the same opinion, the district court also dismissed for lack of Article III

standing the claims brought in a separate action by 20,000 Israeli citizens who,

according to the district court, claimed “to be threatened only by potential future

attacks.” S. App’x 3. The district court referred to those plaintiffs as the “Cohen

Plaintiffs” and to the plaintiffs in this appeal as the “Force Plaintiffs.” Id

. at 1. The

Cohen Plaintiffs did not appeal. Cohen v. Facebook

, 16

‐ cv

‐ 04453

‐ NGG

‐ LB

(E.D.N.Y.).20 favor, without prejudice to plaintiffs seeking leave to file an amended 1

complaint. 2

Plaintiffs then filed a Rule 59(e) motion to alter the judgment, 3

asking the district court to reconsider its dismissal of their First 4

Amended Complaint, and filed a motion seeking leave to file a second 5

amended complaint. The proposed complaint retained all of 6

plaintiffs’ prior claims for relief and added a claim that Facebook had 7

concealed its alleged material support to Hamas. In January 2018, the 8

district court denied plaintiffs’ motions with prejudice, holding that 9

plaintiffs’ proposed second amended complaint was futile in light of 10

47 U.S.C. § 230(c)(1). Plaintiffs timely appealed. 11

STANDARD OF REVIEW 12

Because the district court determined that it was futile to allow 13

plaintiffs to file a second amended complaint, we evaluate that 14

proposed complaint “as we would a motion to dismiss, determining 15

whether [it] contains enough facts to state a claim to relief that is 1621 plausible on its face.” 12 Ind. Pub. Ret. Sys. v. SAIC, Inc.

, 818 F.3d 85, 92 1

(2d Cir. 2016) (citation and internal quotation marks omitted). We 2

accept as true all alleged facts in both the First Amended Complaint 3

and the proposed second amended complaint. 13 See Ashcroft v. Iqbal

, 4

556 U.S. 662, 678 (2009). We also review de novo a district court’s grant 5

of a Rule 12(b)(6) motion to dismiss on the basis of an affirmative 6

defense. See Ricci v. Teamsters Union Local 456

, 781 F.3d 25, 26 (2d Cir. 7

2015). 8

DISCUSSION 9

On appeal, plaintiffs contend that the district court improperly 10

held that Section 230(c)(1) barred their claims. Plaintiffs argue that 11

their claims do not treat Facebook as the “publisher” or “speaker” of 12

12 We have jurisdiction over this appeal from a final judgment. 28 U.S.C. § 1291.

13 Plaintiffs do not distinguish their arguments between their First Amended

Complaint, which the district court dismissed, and their proposed second

amended complaint, which the district court determined was futile. We agree that

the Section 230(c)(1) issues raised by both complaints are materially

indistinguishable.22 content 14 provided by Hamas, as Section 230(c)(1) requires for 1

immunity. Plaintiffs similarly contend that Facebook contributed to 2

that content through its algorithms. Plaintiffs also argue that to apply 3

Section 230(c)(1) to their claims based on Facebook’s and Hamas’s 4

actions taken outside of the United States would constitute the 5

unlawful extraterritorial application of that statute

. In addition, 6

plaintiffs maintain that 47 U.S.C. § 230(e)(1), which provides that 7

Section 230 shall not be “construed to impair the enforcement of

. . . 8

any

. . . Federal criminal statute,” precludes the application of Section 9

230(c)(1) to their claims, that the Anti

‐ Terrorism Act’s (“ATA”) civil 10

remedies provision, 18 U.S.C. § 2333, irreconcilably conflicts with 11

Section 230(c)(1), and that the Justice Against Sponsors of Terrorism 12

Act (“JASTA”) impliedly narrowed or repealed Section 230(c)(1). 13

Lastly, plaintiffs contend that Section 230(c)(1) cannot apply to their 14

14 We refer to “content” and “information” synonymously in this opinion.23 claims brought under the foreign law of Israel. 1

In response to plaintiffs’ claims, Facebook contends that Section 2

230(c)(1) provides it immunity and that, even absent such immunity, 3

plaintiffs fail to plausibly allege that Facebook assisted Hamas in the 4

ways required for their federal antiterrorism claims and Israeli law 5

claims. 6

We first turn to the issues regarding Section 230(c)(1). 15 7

I. Background of Section 230(c)(1) 8

The primary purpose of the proposed legislation that 9

ultimately resulted in the Communications Decency Act (“CDA”) 10

“was to protect children from sexually explicit internet content.” FTC 11

v. LeadClick Media, LLC

, 838 F.3d 158, 173 (2d Cir. 2016) (citing 141 12

15 Plaintiffs argue that the district court prematurely applied Section 230(c)(1), an

affirmative defense, because discovery might show that Facebook was indeed a

“developer” of Hamas’s content. However, the application of Section 230(c)(1) is

appropriate at the pleading stage when, as here, the “statute’s barrier to suit is

evident from the face of” plaintiffs’ proposed complaint. Ricci

, 781 F.3d at 28; see

also Marshall’s Locksmith Serv. Inc. v. Google, LLC

, 925 F.3d 1263, 1267–68 (D.C. Cir.

2019) (affirming dismissal of claims at pleading stage based on Section 230(c)(1)

immunity).24 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon)). 1

Section 230, though—added as an amendment to the CDA bill, id

.— 2

was enacted “to maintain the robust nature of Internet 3

communication and, accordingly, to keep government interference in 4

the medium to a minimum,” Ricci

, 781 F.3d at 28 (quoting Zeran v. 5

Am. Online

, Inc.

, 129 F.3d 327, 330 (4th Cir. 1997)). Indeed, Congress 6

stated in Section 230 that “[i]t is the policy of the United States—(1) to 7

promote the continued development of the Internet and other 8

interactive computer services and other interactive media; [and] (2) to 9

preserve the vibrant and competitive free market that presently exists 10

for the Internet and other interactive computer services, unfettered by 11

Federal or State regulation.” 47 U.S.C. § 230(b)(1)–(2). 12

In the seminal Fourth Circuit decision interpreting the 13

immunity of Section 230 shortly after its enactment, Zeran v. America 14

Online, Inc.

, that court described Congress’s concerns underlying 15

Section 230: 1625 The amount of information communicated via 1

interactive computer services is

. . . staggering. The 2

specter of

. . . liability in an area of such prolific speech 3

would have an obvious chilling effect. It would be 4

impossible for service providers to screen each of their 5

millions of postings for possible problems. Faced with 6

potential liability for each message republished by their 7

services, interactive computer service providers might 8

choose to severely restrict the number and type of 9

messages posted. Congress

. . . chose to immunize 10

service providers to avoid any such restrictive effect. 11

12

129 F.3d at 331. 13

14

The addition of Section 230 to the proposed CDA also 15

“assuaged Congressional concern regarding the outcome of two 16

inconsistent judicial decisions,” Cubby, Inc. v. CompuServe, Inc., 776 F. 17

Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Servs. 18

Co.

, No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), both 19

of which “appl[ied] traditional defamation law to internet providers,” 20

LeadClick

, 838 F.3d at 173. As we noted in LeadClick

, “[t]he first 21

[decision] held that an interactive computer service provider could 22

not be liable for a third party’s defamatory statement

. . . but the 2326 second imposed liability where a service provider filtered its content 1

in an effort to block obscene material.” Id. (citations omitted) (citing 2

141 Cong. Rec. H8469

‐ 70 (daily ed. Aug. 4, 1995 (statement of Rep. 3

Cox))). 4

To “overrule Stratton ,” id

., and to accomplish its other 5

objectives, Section 230(c)(1) provides that “[n]o provider

. . . of an 6

interactive computer service shall be treated as the publisher or 7

speaker of any information provided by another information content 8

provider.” 16 47 U.S.C. § 230(c)(1). Subject to certain delineated 9

exceptions, id

. § 230(e), Section 230(c)(1) thus shields a defendant from 10

16 Section 230(c)(2), which, like Section 230(c)(1), is contained under the

subheading “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive

Material,” 47 U.S.C. § 230(c), responds to Stratton even more directly. It provides

that “[n]o provider or user of an interactive computer service shall be held liable

on account of—(A) any action voluntarily taken in good faith to restrict access to

or availability of material that the provider or user considers to be obscene, lewd,

lascivious, filthy, excessively violent, harassing, or otherwise objectionable,

whether or not such material is constitutionally protected; or (B) any action taken

to enable or make available to information content providers or others the

technical means to restrict access to material described in [Section 230(c)(1)].” Id.

§ 230(c)(2).27 civil liability when: (1) it is a “provider or user of an interactive 1

computer service,” as defined by § 230(f)(2); (2) the plaintiff’s claims 2

“treat[]” the defendant as the “publisher or speaker” of information, 3

id. § 230(c)(1); and (3) that information is “provided by” an 4

“information content provider,” id

. § 230(f)(3), other than the 5

defendant interactive computer service. 6

In light of Congress’s objectives, the Circuits are in general 7

agreement that the text of Section 230(c)(1) should be construed 8

broadly in favor of immunity. See LeadClick, 838 F.3d at 173 (collecting 9

cases); Marshall’s Locksmith Serv. Inc. v. Google, LLC

, 925 F.3d 1263, 10

1267 (D.C. Cir. 2019) (“Congress inten[ded] to confer broad immunity 11

for the re

‐ publication of third

‐ party content.”); Jane Doe No. 1 v. 12

Backpage.com, LLC

, 817 F.3d 12, 18 (1st Cir. 2016) (“There has been 13

near

‐ universal agreement that section 230 should not be construed 14

grudgingly.”); Jones v. Dirty World Entm ʹ t Recordings LLC, 755 F.3d 15

398, 408 (6th Cir. 2014) (“[C]lose cases

. . . must be resolved in favor of 1628 immunity.”) (quoting Fair Hous. Council v. Roommates.Com, LLC, 521 1

F.3d 1157, 1174 (9th Cir. 2008) (en banc))); Doe v. MySpace, Inc.

, 528 2

F.3d 413, 418 (5th Cir. 2008) (“Courts have construed the immunity 3

provisions in § 230 broadly in all cases arising from the publication of 4

user

‐ generated content.”); Almeida v. Amazon.com, Inc., 456 F.3d 1316, 5

1321 (11th Cir. 2006) (“The majority of federal circuits have 6

interpreted [Section 230] to establish broad

. . . immunity.”)); Carafano 7

v. Metrosplash.com, Inc.

, 339 F.3d 1119, 1123 (9th Cir. 2003) (“§ 230(c) 8

provides broad immunity for publishing content provided primarily 9

by third parties.”) (citation omitted); Zeran, 129 F.3d at 330 (4th Cir. 10

1997) (“Congress recognized the threat that tort

‐ based lawsuits pose 11

to freedom of speech in the new and burgeoning Internet medium.”). 1229 II. Whether Section 230(c)(1) Protects Facebook’s Alleged 1

Conduct 17 2

3

The parties agree that Facebook is a provider of an “interactive 4

computer service,” but dispute whether plaintiffs’ claims allege that 5

(1) Facebook is acting as the protected publisher of information, and 6

(2) the challenged information is provided by Hamas, or by Facebook 7

itself. 18 8

A. Whether Plaintiffs’ Claims Implicate Facebook as a 9

“Publisher” of Information 10

11

Certain important terms are left undefined by Section 230(c)(1), 12

17 Because, as is discussed later in this opinion, plaintiffs’ foreign law claims are

dismissed on jurisdictional grounds, our discussion of Section 230(c)(1) immunity

is confined to plaintiffs’ federal claims.

18 Plaintiffs also argue that because publication is not an explicit element of their

federal anti

‐ terrorism claims, Section 230(c)(1) does not provide Facebook with

immunity. However, it is well established that Section 230(c)(1) applies not only

to defamation claims, where publication is an explicit element, but also to claims

where “the duty that the plaintiff alleges the defendant violated derives from the

defendant’s status or conduct as a publisher or speaker.” LeadClick

, 838 F.3d at 175

(quoting Barnes v. Yahoo!, Inc.

, 570 F.3d 1096, 1102 (9th Cir. 2009)) (emphasis

added) (internal quotation marks omitted). “Thus, courts have invoked the

prophylaxis of section 230(c)(1) in connection with a wide variety of causes of

action, including housing discrimination, negligence, and securities fraud and

cyberstalking.” Backpage.com, 817 F.3d at 19 (internal citations omitted); see also

Marshall’s Locksmith

, 925 F.3d at 1267 (“As courts uniformly recognize, § 23030 including “publisher.” 47 U.S.C. § 230(c)(1). This Circuit and others 1

have generally looked to that term’s ordinary meaning: 19 “one that 2

makes public,” Klayman v. Zuckerberg

, 753 F.3d 1354, 1359 (D.C. Cir. 3

2014) (citing Webster’s Third New International Dictionary 1837 4

(1981)); “the reproducer of a work intended for public consumption,” 5

LeadClick

, 838 F.3d at 175 (citing Barnes v. Yahoo!, Inc.

, 570 F.3d 1096, 6

1102 (9th Cir. 2009) (quoting Webster’s Third New International 7

Dictionary 1837 (Philip Babcock Gove ed., 1986))); and “one whose 8

business is publication,” id. Consistent with these definitions, in 9

Zeran v. America Online

, Inc

., the Fourth Circuit concluded that “[e]ven 10

distributors are considered to be publishers,” including “[t]hose who 11

are in the business of making their facilities available to disseminate 12

immunizes internet services for third

‐ party content that they publish,

. . . against

causes of action of all kinds.”); HomeAway.com, Inc. v. City of Santa Monica

, 918 F.3d

676, 684 (9th Cir. 2019) (“[W]e have repeatedly held the scope of [Section 230]

immunity to reach beyond defamation cases.”).

19 “When a term goes undefined in a statute, we give the term

its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd.

, 566 U.S. 560, 566 (2012).31 . . . the information gathered by others.” 129 F.3d at 332 (quoting W. 1

Page Keeton et al., Prosser and Keeton on the Law of Torts § 113, at 2

803 (5th ed. 1984)). The courts’ generally broad construction of 3

Section 230(c)(1) in favor of immunity “has resulted in a capacious 4

conception of what it means to treat a website operator as the 5

publisher

. . . of information provided by a third party.” Backpage.com

, 6

817 F.3d at 19. 7

Plaintiffs seek to hold Facebook liable for “giving Hamas a 8

forum with which to communicate and for actively bringing Hamas’ 9

message to interested parties.” Appellants’ Reply Br. 37; see also, e.g.

, 10

Appellants’ Br. 50–51 (arguing that the federal anti

‐ terrorism statutes 11

“prohibit[] Facebook from supplying Hamas a platform and 12

communications services”). But that alleged conduct by Facebook 13

falls within the heartland of what it means to be the “publisher” of 14

information under Section 230(c)(1). So, too, does Facebook’s alleged 15

failure to delete content from Hamas members’ Facebook pages. See 1632 LeadClick

, 838 F.3d at 174 (stating that acting as the “publisher” under 1

Section 230(c)(1) includes the decision whether to “withdraw” 2

content). 3

Plaintiffs also argue that Facebook does not act as the publisher 4

of Hamas’s content within the meaning of Section 230(c)(1) because it 5

uses algorithms to suggest content to users, resulting in 6

“matchmaking.” Appellants’ Br. 51–52. For example, plaintiffs allege 7

that Facebook’s “newsfeed” uses algorithms that predict and show 8

the third

‐ party content that is most likely to interest and engage users. 9

Facebook’s algorithms also provide “friend suggestions,” based on 10

analysis of users’ existing social connections on Facebook and other 11

behavioral and demographic data. And, Facebook’s advertising 12

algorithms and “remarketing” technology allow advertisers to target 13

ads to its users who are likely most interested in those ads. 14

We disagree with plaintiffs’ contention that Facebook’s use of 15

algorithms renders it a non

‐ publisher. First, we find no basis in the 1633 ordinary meaning of “publisher,” the other text of Section 230, or 1

decisions interpreting Section 230, for concluding that an interactive 2

computer service is not the “publisher” of third

‐ party information 3

when it uses tools such as algorithms that are designed to match that 4

information with a consumer’s interests. 20 Cf., e.g., Roommates.Com, 5

521 F.3d at 1172 (recognizing that Matchmaker.com website, which 6

“provided neutral tools specifically designed to match romantic 7

partners depending on their voluntary inputs,” was immune under 8

Section 230(c)(1)) (citing Carafano, Inc.

, 339 F.3d 1119); Carafano

, 339 9

F.3d at 1124–25 (“Matchmaker’s decision to structure the information 10

provided by users allows the company to offer additional features, 11

such as ‘matching’ profiles with similar characteristics

. . . , [and such 12

features] [a]rguably promote[] the expressed Congressional policy ‘to 13

promote the continued development of the Internet and other 14

20 To the extent that plaintiffs rely on their undeveloped contention that the

algorithms are “designed to radicalize,” Appellants’ Br. 51, we deem that

argument waived. In addition, this allegation is not made in plaintiffs’ complaints.34 interactive computer services.’ 47 U.S.C. § 230(b)(1).”); Herrick v. 1

Grindr, LLC

, 765 F. App’x 586, 591 (2d Cir. 2019) (summary order) (“ To 2

the extent that [plaintiff’s claims] are premised on Grindr’s [user

‐ 3

profile] matching and geolocation features, they are likewise 4

barred

. . . .”). 21 5

Indeed, arranging and distributing third

‐ party information 6

inherently forms “connections” and “matches” among speakers, 7

content, and viewers of content, whether in interactive internet 8

forums or in more traditional media. 22 That is an essential result of 9

21 While lacking precedential value, “[w]e are, of course, permitted to consider

summary orders for their persuasive value, and often draw guidance from them

in later cases.” Brault v. Soc. Sec. Admin., Comm ʹ r

, 683 F.3d 443, 450 n.5 (2d Cir.

2012).

22 As journalist and author Tom Standage has observed, “[M]any of the ways in

which we share, consume, and manipulate information, even in the Internet era,

build upon habits and conventions that date back centuries.” Tom Standage,

Writing on the Wall: Social Media

– The First 2000 Years 5 (2013). See also Tom

Standage, Benjamin Franklin, Social Media Pioneer

, Medium (Dec. 10, 2013),

https://medium.com/new

‐ media/benjamin

‐ franklin

‐ social

‐ media

‐ pioneer

‐

3fb505b1ce7c (“Small and local, with circulations of a few hundred copies at best,

[colonial] newspapers consisted in large part of letters from readers, and reprinted

speeches, pamphlets and items from other papers. They provided an open

platform through which people could share and discuss their views with others.

They were, in short, social media.”).35 publishing. Accepting plaintiffs’ argument would eviscerate Section 1

230(c)(1); a defendant interactive computer service would be 2

ineligible for Section 230(c)(1) immunity by virtue of simply 3

organizing and displaying content exclusively provided by third 4

parties. 5

Plaintiffs’ “matchmaking” argument would also deny 6

immunity for the editorial decisions regarding third

‐ party content 7

that interactive computer services have made since the early days of 8

the Internet. The services have always decided, for example, where 9

on their sites (or other digital property) particular third

‐ party content 10

should reside and to whom it should be shown. Placing certain third

‐ 11

party content on a homepage, for example, tends to recommend that 12

content to users more than if it were located elsewhere on a website. 13

Internet services have also long been able to target the third

‐ party 14

content displayed to users based on, among other things, users’ 15

geolocation, language of choice, and registration information. And, 1636 of course, the services must also decide what type and format of third

‐ 1

party content they will display, whether that be a chat forum for 2

classic car lovers, a platform for blogging, a feed of recent articles 3

from news sources frequently visited by the user, a map or directory 4

of local businesses, or a dating service to find romantic partners. All 5

of these decisions, like the decision to host third

‐ party content in the 6

first place, result in “connections” or “matches” of information and 7

individuals, which would have not occurred but for the internet 8

services’ particular editorial choices regarding the display of third

‐ 9

party content. We, again, are unaware of case law denying Section 10

230(c)(1) immunity because of the “matchmaking” results of such 11

editorial decisions. 12

Seen in this context, plaintiffs’ argument that Facebook’s 13

algorithms uniquely form “connections” or “matchmake” is wrong. 14

That, again, has been a fundamental result of publishing third

‐ party 15

content on the Internet since its beginning. Like the decision to place 1637 third

‐ party content on a homepage, for example, Facebook’s 1

algorithms might cause more such “matches” than other editorial 2

decisions. But that is not a basis to exclude the use of algorithms from 3

the scope of what it means to be a “publisher” under Section 230(c)(1). 4

The matches also might—as compared to those resulting from other 5

editorial decisions—present users with targeted content of even more 6

interest to them, just as an English speaker, for example, may be best 7

matched with English

‐ language content. But it would turn Section 8

230(c)(1) upside down to hold that Congress intended that when 9

publishers of third

‐ party content become especially adept at 10

performing the functions of publishers, they are no longer immunized 11

from civil liability. 23 12

23 The dissent contends that our holding would necessarily immunize the dissent’s

hypothetical phone

‐ calling acquaintance who brokers a connection between two

published authors and facilitates the sharing of their works. See Dissent at 2. We

disagree, for the simple reason that Section 230(c)(1) immunizes publishing

activity only insofar as it is conducted by an “interactive computer service.”

Moreover, the third

‐ party information must be “provided through the Internet or

any other interactive computer service.” 47 U.S.C. § 230(f)(3).38 Second, plaintiffs argue, in effect, that Facebook’s use of 1

algorithms is outside the scope of publishing because the algorithms 2

automate Facebook’s editorial decision

‐ making. That argument, too, 3

fails because “so long as a third party willingly provides the essential 4

published content, the interactive service provider receives full 5

immunity regardless of the specific edit[orial] or selection process.” 6

Carafano

, 339 F.3d at 1124; see Marshall’s Locksmith

, 925 F.3d at 1271 7

(holding that “automated editorial act[s]” are protected by Section 8

230) (quoting O’Kroley v. Fastcase, Inc.

, 831 F.3d 352, 355 (6th Cir. 9

2016)); cf., e.g., Roommates.Com, 521 F.3d at 1172; Herrick

, 765 F. App’x 10

at 591. We disagree with plaintiffs that in enacting Section 230 to, inter 11

alia

, “promote the continued development of the Internet,” 47 U.S.C. 12

§ 230(b)(1), and “preserve the vibrant and competitive free market,” 13

id

. § 230(b)(2), Congress implicitly intended to restrain the automation 14

of interactive computer services’ publishing activities in order for 15

them to retain immunity. 1639 Our dissenting colleague calls for a narrow textual 1

interpretation of Section 230(c)(1) by contending that the Internet was 2

an “afterthought” of Congress in the CDA because the medium 3

received less “committee attention” than other forms of media and 4

that Congress, with Section 230, “tackled only

. . . the ease with which 5

the Internet delivers indecent or offensive material, especially to 6

minors.” Dissent at 5–6. But such a constrained view of Section 230 7

simply is not supported by the actual text of the statute that Congress 8

passed. In addition to the broad language of Section 230(c)(1) and the 9

pro

‐ Internet

‐ development policy statements in Section 230 (discussed 10

ante at 24, 38), Congress announced the following specific findings in 11

Section 230: 12

(1) The rapidly developing array of Internet and other 13

interactive computer services available to individual 14

Americans represent an extraordinary advance in the 15

availability of educational and informational resources 16

to our citizens. 17

18

(2) These services offer users a great degree of control 19

over the information that they receive, as well as the 2040 potential for even greater control in the future as 1

technology develops. 2

3

(3) The Internet and other interactive computer services 4

offer a forum for a true diversity of political discourse, 5

unique opportunities for cultural development, and 6

myriad avenues for intellectual activity. 7

8

(4) The Internet and other interactive computer services 9

have flourished, to the benefit of all Americans, with a 10

minimum of government regulation. 11

12

(5) Increasingly Americans are relying on interactive 13

media for a variety of political, educational, cultural, and 14

entertainment services. 15

16

47 U.S.C. § 230(a)(1)–(5). These Congressional statements all point to 17

the benefits of interactive media and “publisher” immunity to 18

interactive computer services when they arrange and transmit 19

information provided by others. 20

We therefore conclude that plaintiffs’ claims fall within 21

Facebook’s status as the “publisher” of information within the 22

meaning of Section 230(c)(1). 2341 B. Whether Facebook is the Provider of the Information 1

We turn next to whether Facebook is plausibly alleged to itself 2

be an “information content provider,” or whether it is Hamas that 3

provides all of the complained

‐ of content. “The term ‘information 4

content provider’ means any person or entity that is responsible, in 5

whole or in part, for the creation or development of information 6

provided through the Internet or any other interactive computer 7

service.” 47 U.S.C. § 230(f)(3). If Facebook was a creator or developer, 8

even “in part,” of the terrorism

‐ related content upon which plaintiffs’ 9

claims rely, then Facebook is an “information content provider” of 10

that content and is not protected by Section 230(c)(1) immunity. 11

47 U.S.C. § 230(f)(3). Plaintiffs contend that Facebook’s algorithms 12

“develop” Hamas’s content by directing such content to users who 13

are most interested in Hamas and its terrorist activities, without those 1442 users necessarily seeking that content. 1

The term “development” in Section 230(f)(3) is undefined. 2

However, consistent with broadly construing “publisher” under 3

Section 230(c)(1), we have recognized that a defendant will not be 4

considered to have developed third

‐ party content unless the 5

defendant directly and “materially” contributed to what made the 6

content itself “unlawful.” LeadClick

, 838 F.3d at 174 (quoting 7

Roommates.Com

, 521 F.3d at 1168). This “material contribution” test, 8

as the Ninth Circuit has described it, “draw[s] the line at the ‘crucial 9

distinction between, on the one hand, taking actions

. . . to

. . . display 10

. . . actionable content and, on the other hand, responsibility for what 11

makes the displayed content [itself] illegal or actionable.’” Kimzey v. 12

Yelp! Inc.

, 836 F.3d 1263, 1269 n.4 (9th Cir. 2016) (quoting Jones

, 13

755 F.3d at 413–14). 14

Employing this “material contribution” test, we held in FTC v. 15

LeadClick that the defendant LeadClick had “developed” third parties’ 1643 content by giving specific instructions to those parties on how to edit 1

“fake news” that they were using in their ads to encourage consumers 2

to purchase their weight

‐ loss products. LeadClick

, 838 F.3d at 176. 3

LeadClick’s suggestions included adjusting weight

‐ loss claims and 4

providing legitimate

‐ appearing news endorsements, thus “materially 5

contributing to [the content’s] alleged unlawfulness.” Id

. (quoting 6

Roommates.Com

, 521 F.3d at 1160) (alterations in the original). 7

LeadClick also concluded that a defendant may, in some 8

circumstances, be a developer of its users’ content if it encourages or 9

advises users to provide the specific actionable content that forms the 10

basis for the claim. See id. Similarly, in Fair Housing Council v. 11

Roommates.Com

, 521 F.3d at 1172, the Ninth Circuit determined that— 12

in the context of the Fair Housing Act, 42 U.S.C. § 3601 et seq.

, which 13

prohibits discrimination on the basis of sex, family status, sexual 14

orientation, and other protected classes in activities related to 15

housing—the defendant website’s practice of requiring users to use 1644 pre

‐ populated responses to answer inherently discriminatory 1

questions about membership in those protected classes amounted to 2

developing the actionable information for purposes of the plaintiffs’ 3

discrimination claim

. 4

Although it did not explicitly adopt the “material contribution” 5

test, the D.C. Circuit’s recent decision in Marshall’s Locksmith Service v. 6

Google

, 925 F.3d 1263, illustrates how a website’s display of third

‐ 7

party information does not cross the line into content development. 8

There, “scam locksmiths”—who were apparently actual locksmiths 9

seeking to mislead consumers with lock emergencies into believing 10

that they were closer in proximity to the emergency location than they 11

actually were—allegedly provided Google, Microsoft, and Yahoo!’s 12

internet mapping services with false locations, some of which were 13

exact street addresses and others which were “less

‐ exact,” such as 14

telephone area codes. Id

. at 1265–70. The internet mapping services 15

of Google, Microsoft, and Yahoo! translated this information into 1645 textual and pictorial “pinpoints” on maps that were displayed to the 1

services’ users. Id

. at 1269. The D.C. Circuit concluded that this 2

“translation” of the third

‐ party information by the interactive 3

computer services did not develop that information (or create new 4

content) because the underlying “information [was] entirely provided 5

by the third party, and the choice of presentation ” fell within the 6

interactive computer services’ prerogative as publishers. Id

. 7

(emphasis added). 8

As to the “less

‐ exact” location information, such as area codes, 9

provided by the scam locksmiths, the plaintiffs also argued that the 10

mapping services’ algorithmic translation of this information into 11

exact pinpoint map locations developed or created the misleading 12

information. Id

. at 1269–70. The D.C. Circuit also rejected that 13

argument, holding that “defendants’ translation of [imprecise] third

‐ 14

party information into map pinpoints does not convert them into 15

‘information content providers’ because defendants use a neutral 1646 algorithm to make that translation.” Id

. at 1270. In using the term 1

“neutral,” the court observed that the algorithms were alleged to 2

make no distinction between “scam” and other locksmiths and that 3

the algorithms did not materially alter (i.e., they “hew[ed] to”) the 4

underlying information provided by the third parties. Id

. at 1270 n.5, 5

1270–71. 6

Here, plaintiffs’ allegations about Facebook’s conduct do not 7

render it responsible for the Hamas

‐ related content. As an initial 8

matter, Facebook does not edit (or suggest edits) for the content that 9

its users—including Hamas—publish. That practice is consistent 10

with Facebook’s Terms of Service, which emphasize that a Facebook 11

user “own[s] all of the content and information [the user] post[s] on 12

Facebook, and [the user] can control how it is shared through [the 13

user’s] privacy and application settings.” App’x 252. 14

Nor does Facebook’s acquiring certain information from users 15

render it a developer for the purposes of Section 230. Facebook 1647 requires users to provide only basic identifying information: their 1

names, telephone numbers, and email addresses. In so doing, 2

Facebook acts as a “neutral intermediary.” LeadClick

, 838 F.3d at 174. 3

Moreover, plaintiffs concede in the pleadings that Facebook does not 4

publish that information, cf., e.g., Roommates.Com

, 521 F.3d at 1172, 5

and so such content plainly has no bearing on plaintiffs’ claims. 6

Plaintiffs’ allegations likewise indicate that Facebook’s 7

algorithms are content “neutral” in the sense that the D.C. Circuit 8

used that term in Marshall’s Locksmith : The algorithms take the 9

information provided by Facebook users and “match” it to other 10

users—again, materially unaltered—based on objective factors 11

applicable to any content, whether it concerns soccer, Picasso, or 12

plumbers. 24 Merely arranging and displaying others’ content to users 13

24 We do not mean that Section 230 requires algorithms to treat all types of content

the same. To the contrary, Section 230 would plainly allow Facebook’s algorithms

to, for example, de

‐ promote or block content it deemed objectionable. We

emphasize only—assuming that such conduct could constitute “development” of

third

‐ party content—that plaintiffs do not plausibly allege that Facebook

augments terrorist

‐ supporting content primarily on the basis of its subject matter.48 of Facebook through such algorithms—even if the content is not 1

actively sought by those users—is not enough to hold Facebook 2

responsible as the “develop[er]” or “creat[or]” of that content. See, 3

e.g., Marshall’s Locksmith

, 925 F.3d at 1269–71; Roommates.Com, 4

521 F.3d at 1169–70. 5

Plaintiffs’ arguments to the contrary are unpersuasive. For one, 6

they point to the Ninth Circuit’s decision in Roommates.Com as 7

holding that requiring or encouraging users to provide any particular 8

information whatsoever to the interactive computer service 9

transforms a defendant into a developer of that information. The 10

Roommates.Com holding, however, was not so broad; it concluded 11

only that the site’s conduct in requiring users to select from “a limited 12

set of pre

‐ populated answers” to respond to particular 13

“discriminatory questions” had a content

‐ development effect that 14

was actionable in the context of the Fair Housing Act. See 521 F.3d at 15

1166. There is no comparable allegation here. 1649 Plaintiffs also argue that Facebook develops Hamas’s content 1

because Facebook’s algorithms make that content more “visible,” 2

“available,” and “usable.” Appellants’ Br. at 45–46. But making 3

information more available is, again, an essential part of traditional 4

publishing ; it does not amount to “developing” that information 5

within the meaning of Section 230. Similarly, plaintiffs assert that 6

Facebook’s algorithms suggest third

‐ party content to users “based on 7

what Facebook believes will cause the user to use Facebook as much 8

as possible” and that Facebook intends to “influence” consumers’ 9

responses to that content. Appellants’ Br. 48. This does not describe 10

anything more than Facebook vigorously fulfilling its role as a 11

publisher. Plaintiffs’ suggestion that publishers must have no role in 12

organizing or distributing third

‐ party content in order to avoid 13

“develop[ing]” that content is both ungrounded in the text of Section 14

230 and contrary to its purpose. 1550 Finally, we note that plaintiffs also argue that Facebook should 1

not be afforded Section 230 immunity because Facebook has chosen 2

to undertake efforts to eliminate objectionable and dangerous content 3

but has not been effective or consistent in those efforts. However, 4

again, one of the purposes of Section 230 was to ensure that interactive 5

computer services should not incur liability as developers or creators 6

of third

‐ party content merely because they undertake such efforts— 7

even if they are not completely effective. 25 8

We therefore conclude from the allegations of plaintiffs’ 9

complaint that Facebook did not “develop” the content of the 10

Facebook postings by Hamas and that Section 230(c)(1) applies to 11

Facebook’s alleged conduct in this case. 12

III. Whether Applying Section 230(c)(1) to Plaintiffs’ Claims 13

Would Impair the Enforcement of a Federal Criminal Statute 14

15

Plaintiffs also argue that Section 230(c)(1) may not be applied 16

25 See supra

, Discussion, Part I.51 to their claims because that would impermissibly “impair the 1

enforcement” of a “Federal criminal statute.” Appellant’s Br. at 52 2

(quoting 47 U.S.C. § 230(e)(1)). Section 230(e)(1), entitled, “No effect 3

on criminal law,” is one of the enumerated exceptions to the 4

application of Section 230(c)(1) immunity. It provides that “[n]othing 5

in

. . . section [230] shall be construed to impair the enforcement of

. . . 6

any [] Federal criminal statute.” 47 U.S.C. § 230(e)(1). Plaintiffs 7

observe that 18 U.S.C. §§ 2339A, 2339B, and 2339C, which criminalize 8

providing material support for terrorism, providing material support 9

for foreign terrorist organizations, and financing terrorism, 10

respectively, are federal criminal statutes. Plaintiffs argue that 11

preventing them from bringing an action under the statute providing 12

for “civil remedies” for individuals injured “by reason of an act of 13

international terrorism,” 18 U.S.C. § 2333(a), would “impair the 14

enforcement” of those criminal statutes within the meaning of 15

47 U.S.C. § 230(e)(1). In response, citing the First Circuit’s decision in 1652 Backpage.com, 817 F.3d at 23–24

, Facebook argues that Section 230(e)(1) 1

pertains only to criminal enforcement actions brought by a 2

prosecutor, not civil actions such as this. 3

We agree with the district court’s conclusion that Section 4

230(e)(1) is inapplicable in this civil action. Even accepting, arguendo

, 5

plaintiffs’ assertion that a civil litigant could be said to “enforce” a 6

criminal statute through a separate civil remedies provision, any 7

purported ambiguity in Section 230(e)(1) is resolved by its title, “No 8

effect on criminal law.” 26 “Criminal law” concerns “prosecuting and 9

punishing offenders” and is “contrasted with civil law,” which, as 10

here, concerns “private relations between individuals.” Criminal Law, 11

Civil Law

, Oxford English Dictionary (3d ed. 2010). Furthermore, as 12

the First Circuit pointed out in Jane Doe No. 1 v. Backpage.com, LLC

, 13

“where Congress wanted to include both civil and criminal remedies 14

26 “[W]here the text is ambiguous, a statute’s titles can offer ‘a useful aid in

resolving [the] ambiguity .’” Lawson v. FMR LLC

, 571 U.S. 429, 465 (2014) (quoting

FTC v. Mandel Bros

., Inc., 359 U.S. 385, 388–89 (1959) (alterations in original) ).53 in CDA provisions, it did so through broader language.” 817 F.3d 1

at 23. Section 230(e)(4), for example, states that Section 230 “should 2

not ‘be construed to limit the application of the Electronic 3

Communications Privacy Act of 1986,’ a statute that contains both 4

criminal penalties and civil remedies.” Id. (first quoting 18 U.S.C. 5

§ 230(e)(4), then citing 18 U.S.C. §§ 2511, 2520). In light of the 6

presumption that the use of “different words within the same 7

statutory scheme is deliberate,” the fact that Congress’s word choice 8

in “[p]reserving the ‘application’ of this Act” is distinct from its 9

“significantly narrower word choice in safeguarding the 10

‘enforcement’ of federal criminal statutes” counsels against the broad 11

reading of Section 230(e)(1) urged by plaintiffs. Id. (citing Sosa v. 12

Alvarez

‐ Machain

, 542 U.S. 692, 711 n.9 (2004)). 27 We therefore join the 13

27 We do not here decide whether the word “enforcing” in a different provision,

Section 230(e)(3), necessarily has the same meaning as “enforcement” in Section

230(e)(1), given their different linguistic contexts. See 47 U.S.C. § 230(e)(3)

(“Nothing in this section shall be construed to prevent any State from enforcing

any State law that is consistent with this section.”); Beharry v. Ashcroft

, 329 F.3d 51,

61 (2d Cir. 2003) (Sotomayor, J .) (“Usually identical words in different sections54 First Circuit in concluding that Section 230(e)(1) is “quite clearly

. . . 1

limited to criminal prosecutions.” Backpage.com

, 817 F.3d at 23. 2

Accordingly, Section 230(e)(1) provides no obstacle to the application 3

of Section 230(c)(1) in this case. 4

IV. Whether the Anti

‐ Terrorism Act’s Civil Remedies Provision, 5

18 U.S.C. § 2333, Implicitly Narrowed or Repealed Section 6

230(c)(1) 7

8

Plaintiffs also argue that the ATA’s civil remedies provision, 9

18 U.S.C. § 2333, irreconcilably conflicts with Section 230 and 10

impliedly repealed it when Congress amended Section 2333 by 11

adopting the Justice Against Sponsors of Terrorism Act (“JASTA”) in 12

2016. JASTA, among other things, added civil liability for aiding and 13

abetting and civil conspiracy to Section 2333, with a stated purpose of 14

“provid[ing] civil litigants with the broadest possible basis

. . . to seek 15

relief” against material supporters of terrorism. Pub. L. 114–222, 16

mean identical things, but not invariably. All depends on context.” (citation

omitted)).55 § 2(b), 130 Stat. 852, 853 (2016). 1

“[R]epeals by implication are not favored and will not be 2

presumed unless the intention of the legislature to repeal is clear and 3

manifest.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife

, 551 U.S. 644, 4

662 (2007) (citation, internal quotation marks, and alterations 5

omitted). In other words, “[a]n implied repeal will only be found 6

where provisions in two statutes are in irreconcilable conflict, or 7

where the latter Act covers the whole subject of the earlier one and is 8

clearly intended as a substitute.” Branch v. Smith, 538 U.S. 254, 273 9

(2003) (citation and internal quotation marks omitted)

. Here, there is 10

no irreconcilable conflict between the statutes. Section 230 provides 11

an affirmative defense to liability under Section 2333 for only the 12

narrow set of defendants and conduct to which Section 230 applies. 13

JASTA merely expanded Section 2333’s cause of action to secondary 14

liability; it provides no obstacle—explicit or implicit—to applying 15

Section 230. 1656 V. Whether Applying Section 230(c)(1) to Plaintiffs’ Claims 1

Would Be Impermissibly Extraterritorial 2

3

Plaintiffs also argue that the presumption against the 4

extraterritorial application of federal statutes bars applying Section 5

230(c)(1) to their claims because Hamas posted content and 6

conducted the attacks from overseas, and because Facebook’s 7

employees who failed to take down Hamas’s content were allegedly 8

located outside the United States, in Facebook’s foreign facilities. In 9

response, Facebook contends that Section 230(c)(1) merely limits civil 10

liability in American courts, a purely domestic application. 11

Under the canon of statutory interpretation known as the 12

“presumption against extraterritoriality,” “[a]bsent clearly expressed 13

congressional intent to the contrary, federal laws will be construed to 14

have only domestic application.” 15

RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). The 16

Supreme Court has instructed courts to apply “a two

‐ step framework 17

for analyzing extraterritoriality issues.” Id

. at 2101. “At the first step, 1857 we ask whether the presumption against extraterritoriality has been 1

rebutted—that is, whether the statute gives a clear, affirmative 2

indication that it applies extraterritorially.” Id

. 3

If the statute is not extraterritorial on its face, then “at the 4

second step we determine whether the case involves a domestic 5

application of the statute, and we do this by looking to the statute’s 6

‘focus.’” Id

. “The focus of a statute is the object of its solicitude, which 7

can include the conduct it seeks to regulate, as well as the parties and 8

interests it seeks to protect or vindicate.” WesternGeco LLC v. ION 9

Geophysical Corp.

, 138 S. Ct. 2129, 2137 (2018) (citation, internal 10

quotation marks, and alterations omitted). “If the conduct relevant to 11

the statute’s focus occurred in the United States, then the case 12

involves a permissible domestic application even if other conduct 13

occurred abroad

. . . .” RJR Nabisco, 136 S. Ct. at 2101. “[B]ut if the 14

conduct relevant to the focus occurred in a foreign country, then the 1558 case involves an impermissible extraterritorial application regardless 1

of any other conduct that occurred in U.S. territory.” Id

. 2

The two

‐ step framework arguably does not easily apply to a 3

statutory provision that affords an affirmative defense to civil 4

liability. Indeed, it is unclear how an American court could apply 5

such a provision “extraterritorially.” Even if it could be applied 6

extraterritorially—say, by somehow treating the defendant’s conduct 7

rather than the lawsuit itself as the “focus” of a liability

‐ limiting 8

provision—the presumption against extraterritoriality primarily 9

“serves to avoid the international discord that can result when U.S. 10

law is applied to conduct in foreign countries.” Id

. at 2100. Allowing 11

a plaintiff’s claim to go forward because the cause of action applies 12

extraterritorially, while then applying the presumption to block a 13

different provision setting out defenses to that claim, would seem 14

only to increase the possibility of international friction. Such a regime 15

could also give plaintiffs an advantage when they sue over 1659 extraterritorial wrongdoing that they would not receive if the 1

defendant’s conduct occurred domestically. It is doubtful that 2

Congress ever intends such a result when it writes provisions limiting 3

civil liability. 4

The Ninth Circuit addressed this issue in Blazevska v. Raytheon 5

Aircraft Co.

, 522 F.3d 948 (9th Cir. 2008), which was decided prior to 6

the Supreme Court’s adoption of the two

‐ step extraterritoriality 7

framework. The plaintiffs in Blazevska argued that the General 8

Aviation Revitalization Act’s (“GARA”) statute of repose could not 9

limit the defendant’s liability because, like here, certain events related 10

to plaintiffs’ claims occurred overseas. Id. at 950. The Ninth Circuit 11

disagreed, holding that the presumption against extraterritoriality 12

was inapplicable to a liability

‐ limiting statute. It found that GARA 13

did not “impermissibly regulate conduct that has occurred abroad,” 14

and instead, 15

merely eliminates the power of any party to bring a suit 16

for damages against a general aviation aircraft 1760 manufacturer, in a U.S. federal or state court, after the 1

limitation period. The only conduct it could arguably be 2

said to regulate is the ability of a party to initiate an 3

action for damages against a manufacturer in American 4

courts—an entirely domestic endeavor. Congress has no 5

power to tell courts of foreign countries whether they 6

could entertain a suit against an American defendant. 7

8

Id

. at 953. “Accordingly,” the Ninth Circuit held, “the presumption 9

against extraterritoriality simply is not implicated by GARA’s 10

application.” Id

. 11

The Supreme Court has left open the question of whether 12

certain types of statutes might not be subject to the presumption 13

against extraterritoriality. See WesternGeco

, 138 S. Ct. at 2136 (noting, 14

without deciding, the question whether “the presumption against 15

extraterritoriality should never apply to statutes

. . . that merely 16

provide a general damages remedy for conduct that Congress has 17

declared unlawful”). However, we need not decide here whether the 18

presumption against extraterritoriality is “simply

. . . not 19

implicated,” Blazevska

, 522 F.3d at 953, by statutes that merely limit 2061 civil liability, or whether the two

‐ step RJR Nabisco framework must 1

be applied, because that framework is workable in this context and 2

compels the same result. At step two, we conclude from the text of 3

Section 230, particularly the words “shall be treated,” that its primary 4

purpose is limiting civil liability in American courts. 28 The regulated 5

conduct—the litigation of civil claims in federal courts—occurs 6

entirely domestically in its application here. We thus hold that the 7

presumption against extraterritoriality is no barrier to the application 8

of Section 230(c)(1) in this case. 29 9

VI. Foreign Law Claims 10

Turning next to plaintiffs’ foreign tort claims, the parties 11

disagree as to the reach of Section 230 immunity. The district court 12

28 Although “a finding of extraterritoriality at step one will obviate step two’s

‘focus’ inquiry,” courts may instead “start[] at step two in appropriate cases.” RJR

Nabisco, 136 S. Ct. at 2101 n.5.

29 Because we conclude that the affirmative defense of Section 230(c)(1) applies, we

need not reach Facebook’s alternative argument that plaintiffs’ complaint does not

plausibly allege that, absent such immunity, Facebook assisted Hamas under the

federal antiterrorism claims.62 held that Section 230 applies to foreign law claims brought in United 1

States courts, but it did not address the basis for its exercise of subject 2

matter jurisdiction over those claims. Before we can reach the merits 3

of those causes of action, including the applicability of Section 230, we 4

must independently ensure the basis for federal subject matter 5

jurisdiction. Ruhrgas AG v. Marathon Oil Co.

, 526 U.S. 574, 583 (1999). 6

Plaintiffs allege that, under 28 U.S.C. § 1332(a)(2), we have 7

diversity jurisdiction over their foreign law claims purportedly 8

brought between “citizens of a State and citizens or subjects of a 9

foreign state.” It is well established, however, that “United States 10

citizens who are domiciled abroad are neither citizens of any state of 11

the United States nor citizens or subjects of a foreign state, and 12

§ 1332(a) does not provide that the courts have jurisdiction over a suit 13

to which such persons are parties.” Cresswell v. Sullivan & Cromwell

, 14

922 F.2d 60, 68 (2d Cir. 1990). In other words, “a suit by or against 15

United States citizens domiciled abroad may not be premised on 1663 diversity.” Id .; see also Newman

‐ Green, Inc. v. Alfonzo

‐ Larrain

, 490 U.S. 1

826, 829 (1989) (stating that “stateless” United States citizens may not 2

be parties to diversity

‐ based suits). 3

Here, a substantial majority of the plaintiffs are alleged to be 4

United States citizens domiciled in Israel. 30 A suit based on diversity 5

jurisdiction may not proceed with these plaintiffs as parties. 6

In addition, “[i]t is well established that for a case to come 7

within [§ 1332] there must be complete diversity,” Cresswell

, 922 F.2d 8

at 68, and the complaint must set forth the citizenship of the parties, 9

Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc.

, 87 F.3d 44, 47 10

(2d Cir. 1996). Plaintiffs’ complaint fails to allege the state citizenship, 11

if any, of U.S.

‐ citizen plaintiffs Taylor Force, Kristin Ann Force, 12

Yaakov Naftali Fraenkel, Chaya Zissel Braun, Richard Lakin, or the 13

minor

‐ children plaintiffs S.S.R., M.M.R., R.M.R. and S.Z.R. We thus 14

cannot determine on the present record whether those plaintiffs are 15

30 A representative of a decedent’s estate is “deemed to be a citizen only of the

same State as the decedent.” 28 U.S.C. § 1332(c)(2).64 of diverse citizenship from Facebook. Indeed, only two plaintiffs

— 1

Stuart Force and Robbi Force

— are alleged to be of diverse citizenship 2

to Facebook. 3

The joinder of Israel

‐ domiciled U.S.

‐ citizen plaintiffs requires 4

us either to dismiss the diversity

‐ based claims altogether, or exercise 5

our discretion to: 1) dismiss those plaintiffs who we determine are 6

“dispensable jurisdictional spoilers;” or 2) vacate in part the judgment 7

of the district court and remand for it to make that indispensability 8

determination and to determine whether dismissal of those 9

individuals would be appropriate. SCS Commc ʹ ns, Inc. v. Herrick Co.

, 10

360 F.3d 329, 335 (2d Cir. 2004). As for the plaintiffs for whom no state 11

citizenship is alleged, we have discretionary authority to accept 12

submissions for the purpose of amending the complaint on appeal, or 13

we could remand for amendment. See Leveraged Leasing

, 87 F.3d at 47 14

(“Defective allegations of jurisdiction may be amended, upon terms, 15

in the trial or appellate courts.” (quoting 28 U.S.C. § 1653)). 1665 We decline to exercise our discretion to attempt to remedy 1

these jurisdictional defects. This is not a case in which a small number 2

of nondiverse parties defeats jurisdiction, but rather one in which— 3

after multiple complaints have been submitted—most of the plaintiffs 4

are improperly joined. Moreover, the case remains at the pleading 5

stage, with discovery not yet having begun. Proceeding with the few 6

diverse plaintiffs would be inefficient given the expenditure of 7

judicial and party resources that would be required to address the 8

jurisdictional defects. The most appropriate course is for any diverse 9

plaintiffs to bring a new action and demonstrate subject matter 10

jurisdiction in that action. 31 Accordingly, plaintiffs’ foreign law 11

31 Plaintiffs do not assert supplemental jurisdiction under 28 U.S.C. § 1367. All

claims over which we have original jurisdiction are dismissed at the pleading

stage, see id

. § 1367(c)(3), and, by plaintiffs’ own argument, some of the foreign

claims “differ[] markedly from American concepts of

. . . liability,” Appellants’ Br.

59; see id

. § 1367(c)(1). Therefore, even assuming that plaintiffs’ foreign law claims

form “part of the same case or controversy” as their federal claims, 28 U.S.C.

§ 1367(a), we decline to exercise supplemental jurisdiction here.66 claims are dismissed, without prejudice. 32 1

CONCLUSION 2

For the foregoing reasons, we AFFIRM the judgment of the 3

district court as to plaintiffs’ federal claims and DISMISS plaintiffs’ 4

foreign law claims. 5

32 Because plaintiffs’ foreign law claims are dismissed on jurisdictional grounds,

we express no opinion as to the district court’s conclusion that Section 230 applies

to foreign law claims brought in United States courts.1 K ATZMANN

, Chief Judge

, concurring in part and dissenting in part:

I agree with much of the reasoning in the excellent majority opinion, and I

join that opinion except for Parts I and II of the Discussion. But I must respectfully

part company with the majority on its treatment of Facebook’s friend

‐ and content

‐

suggestion algorithms under the Communications Decency Act (“CDA”). 1

1 I agree with the majority that the CDA’s exception for enforcement of criminal

laws, 47 U.S.C. § 230(e)(1), does not apply to plaintiffs’ claims, see ante

, at 50

‐ 54. However,

I find the question to be somewhat closer than the majority does, in part because some of

the statutes enumerated in § 230(e)(1) themselves contain civil remedies. Section 230(e)(1)

states that “[n]othing in [§ 230] shall be construed to impair the enforcement of section

223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual

exploitation of children) of title 18, or any other Federal criminal statute.” One of those

enumerated chapters—Chapter 110 of Title 18—includes a civil suit provision for victims

of specific child sex crimes. See 18 U.S.C. § 2255. Meanwhile, 47 U.S.C. § 223—which

prohibits obscene or harassing phone calls—specifies that civil fines may be levied

“pursuant to civil action by,” or “after appropriate administrative proceedings” of, the

Federal Communications Commission (“FCC”), and it authorizes the Attorney General

to bring civil suits to enjoin practices that violate the statute. 47 U.S.C. § 223(b)(5)(B)

‐ (b)(6). If § 230(e)(1) covers “enforcement” of the listed chapters in their entirety, it is

difficult to see how it would not cover other provisions that authorize civil suits for

violations of criminal laws, particularly given that the enumerated list is followed by “or

any other criminal law.”

However, as detailed post

, § 230 was designed as a private

‐ sector

‐ driven

alternative to a Senate plan that would allow the FCC “either civilly or criminally, to

punish people” who put objectionable material on the Internet. 141 Cong. Rec. 22,045

(1995) (statement of Rep. Cox); accord id. at 22,045

‐ 46 (statement of Rep. Wyden); see Reno

v. ACLU

, 521 U.S. 844, 859 & n.24 (1997). On the House floor, author Christopher Cox

disparaged the idea of FCC enforcement and then stated: “Certainly, criminal

enforcement of our obscenity laws as an adjunct is a useful way of punishing the truly2 As to the reasons for my disagreement, consider a hypothetical. Suppose

that you are a published author. One day, an acquaintance calls. “I’ve been reading

over everything you’ve ever published,” he informs you. “I’ve also been looking

at everything you’ve ever said on the Internet. I’ve done the same for this other

author. You two have very similar interests; I think you’d get along.” The

acquaintance then gives you the other author’s contact information and photo,

along with a link to all her published works. He calls back three more times over

the next week with more names of writers you should get to know.

Now, you might say your acquaintance fancies himself a matchmaker. But

would you say he’s acting as the publisher of the other authors’ work?

Facebook and the majority would have us answer this question “yes.” I,

however, cannot do so. For the scenario I have just described is little different from

how Facebook’s algorithms allegedly work. And while those algorithms do end

up showing users profile, group, or event pages written by other users, it strains

guilty.” 141 Cong. Rec. 22,045 (emphasis added). This history, along with the provision’s

title, strongly suggests that § 230(e)(1) was intended as a narrow criminal

‐ law exception.

It would be odd, then, to read § 230(e)(1) as allowing for civil enforcement by, among

others, the FCC, even if only in aid of criminal law enforcement.3 the English language to say that in targeting and recommending these writings to

users—and thereby forging connections, developing new social networks—

Facebook is acting as “the publisher of

. . . information provided by another

information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added).

It would be one thing if congressional intent compelled us to adopt the

majority’s reading. It does not. Instead, we today extend a provision that was

designed to encourage computer service providers to shield minors from obscene

material so that it now immunizes those same providers for allegedly connecting

terrorists to one another. Neither the impetus for nor the text of § 230(c)(1) requires

such a result. When a plaintiff brings a claim that is based not on the content of the

information shown but rather on the connections Facebook’s algorithms make

between individuals, the CDA does not and should not bar relief.

The Anti

‐ Terrorism Act (“ATA”) claims in this case fit this bill. According

to plaintiffs’ Proposed Second Amended Complaint (“PSAC”)—which we must

take as true at this early stage—Facebook has developed “sophisticated

algorithm[s]” for bringing its users together. App’x 347 ¶ 622. After collecting

mountains of data about each user’s activity on and off its platform, Facebook4 unleashes its algorithms to generate friend, group, and event suggestions based

on what it perceives to be the user’s interests. Id. at 345

‐ 46 ¶¶ 608

‐ 14. If a user posts

about a Hamas attack or searches for information about a Hamas leader, Facebook

may “suggest” that that user become friends with Hamas terrorists on Facebook

or join Hamas

‐ related Facebook groups. By “facilitat[ing] [Hamas’s] ability to

reach and engage an audience it could not otherwise reach as effectively,”

plaintiffs allege that Facebook’s algorithms provide material support and

personnel to terrorists. Id. at 347 ¶ 622; see id. at 352

‐ 58 ¶¶ 646

‐ 77. As applied to the

algorithms, plaintiffs’ claims do not seek to punish Facebook for the content others

post, for deciding whether to publish third parties’ content, or for editing (or

failing to edit) others’ content before publishing it. In short, they do not rely on

treating Facebook as “the publisher” of others’ information. Instead, they would

hold Facebook liable for its affirmative role in bringing terrorists together.

When it comes to Facebook’s algorithms, then, plaintiffs’ causes of action do

not run afoul of the CDA. Because the court below did not pass on the merits of

the ATA claims pressed below, I would send this case back to the district court to

decide the merits in the first instance. The majority, however, cuts off all possibility5 for relief based on algorithms like Facebook’s, even if these or future plaintiffs

could prove a sufficient nexus between those algorithms and their injuries. In light

of today’s decision and other judicial interpretations of the statute that have

generally immunized social media companies—and especially in light of the new

reality that has evolved since the CDA’s passage—Congress may wish to revisit

the CDA to better calibrate the circumstances where such immunization is

appropriate and inappropriate in light of congressional purposes.

I.

To see how far we have strayed from the path on which Congress set us out,

we must consider where that path began. What is now 47 U.S.C. § 230 was added

as an amendment to the Telecommunications Act of 1996, a statute designed to

deregulate and encourage innovation in the telecommunications industry. Pub. L.

104

‐ 104, § 509, 110 Stat. 56, 56, 137

‐ 39; see Reno

, 521 U.S. at 857. Congress devoted

much committee attention to traditional telephone and broadcast media; by

contrast, the Internet was an afterthought, addressed only through floor

amendments or in conference. Reno

, 521 U.S. at 857

‐ 58. Of the myriad issues the

emerging Internet implicated, Congress tackled only one: the ease with which the6 Internet delivers indecent or offensive material, especially to minors. See

Telecommunications Act of 1996, tit. V, subtit. A, 110 Stat. at 133

‐ 39. And § 230

provided one of two alternative ways of handling this problem.

The action began in the Senate. Senator James J. Exon introduced the CDA

on February 1, 1995. See 141 Cong. Rec. 3,203. He presented a revised bill on June

9, 1995, “[t]he heart and the soul” of which was “its protection for families and

children.” Id. at 15,503 (statement of Sen. Exon). The Exon Amendment sought to

reduce the proliferation of pornography and other obscene material online by

subjecting to civil and criminal penalties those who use interactive computer

services to make, solicit, or transmit offensive material. Id. at 15,505.

The House of Representatives had the same goal—to protect children from

inappropriate online material—but a very different sense of how to achieve it.

Congressmen Christopher Cox (R

‐ California) and Ron Wyden (D

‐ Oregon)

introduced an amendment to the Telecommunications Act, entitled “Online

Family Empowerment,” about two months after the revised CDA appeared in the

Senate. See id. at 22,044. Making the argument for their amendment during the

House floor debate, Congressman Cox stated:7 We want to make sure that everyone in America has an open

invitation and feels welcome to participate in the Internet. But as you

know, there is some reason for people to be wary because, as a Time

Magazine cover story recently highlighted, there is in this vast world

of computer information, a literal computer library, some offensive

material, some things in the bookstore, if you will, that our children

ought not to see.

As the parent of two, I want to make sure that my children have access

to this future and that I do not have to worry about what they might

be running into on line. I would like to keep that out of my house and

off my computer.

Id. at 22,044

‐ 45. Likewise, Congressman Wyden said: “We are all against smut and

pornography, and, as the parents of two small computer

‐ literate children, my wife

and I have seen our kids find their way into these chat rooms that make their

middle

‐ aged parents cringe.” Id. at 22,045.

As both sponsors noted, the debate between the House and the Senate was

not over the CDA’s primary purpose but rather over the best means to that shared

end. See id. (statement of Rep. Cox) (“How should we do this?

. . . Mr. Chairman,

what we want are results. We want to make sure we do something that actually

works.”); id. (statement of Rep. Wyden) (“So let us all stipulate right at the outset

the importance of protecting our kids and going to the issue of the best way to do

it.”). While the Exon Amendment would have the FCC regulate online obscene8 materials, the sponsors of the House proposal “believe[d] that parents and families

are better suited to guard the portals of cyberspace and protect our children than

our Government bureaucrats.” Id. at 22,045 (statement of Rep. Wyden). They also

feared the effects the Senate’s approach might have on the Internet itself. See id.

(statement of Rep. Cox) (“[The amendment] will establish as the policy of the

United States that we do not wish to have content regulation by the Federal

Government of what is on the Internet, that we do not wish to have a Federal

Computer Commission with an army of bureaucrats regulating the Internet

. . . .”).

The Cox

‐ Wyden Amendment therefore sought to empower interactive computer

service providers to self

‐ regulate, and to provide tools for parents to regulate,

children’s access to inappropriate material. See S. Rep. No. 104

‐ 230, at 194 (1996)

(Conf. Rep.); 141 Cong. Rec. 22,045 (statement of Rep. Cox).

There was only one problem with this approach, as the House sponsors saw

it. A New York State trial court had recently ruled that the online service Prodigy,

by deciding to remove certain indecent material from its site, had become a

“publisher” and thus was liable for defamation when it failed to remove other

objectionable content. Stratton

‐ Oakmont, Inc. v. Prodigy Servs. Co.

, 1995 WL 323710,9 at *4 (N.Y. Sup. Ct. May 24, 1995) (unpublished). The authors of § 230 saw the

Stratton

‐ Oakmont decision as indicative of a “legal system [that] provides a massive

disincentive for the people who might best help us control the Internet to do so.”

141 Cong. Rec. 22,045 (statement of Rep. Cox). Cox

‐ Wyden was designed, in large

part, to remove that disincentive. See S. Rep. No. 104

‐ 230, at 194.

The House having passed the Cox

‐ Wyden Amendment and the Senate the

Exon Amendment, the conference committee had before it two alternative visions

for countering the spread of indecent online material to minors. The committee

chose not to choose. Congress instead adopted both amendments as part of a final

Communications Decency Act. See Telecommunications Act of 1996, §§ 502, 509,

110 Stat. at 133

‐ 39; Reno

, 521 U.S. at 858 n.24. 2 The Supreme Court promptly struck

down two major provisions of the Exon Amendment as unconstitutionally

2 It helped that the Cox

‐ Wyden Amendment exempted from its deregulatory

regime the very provisions that the Exon Amendment strengthened, see

Telecommunications Act of 1996, §§ 502, 507

‐ 508, 509(d)(1), 110 Stat. at 133

‐ 39, and that

Congress stripped from the House bill a provision that would have denied jurisdiction

to the FCC to regulate the Internet, compare id. § 509, 110 Stat. at 138 (eliminating original

§ 509(d)), with 141 Cong. Rec. 22,044 (including original § 509(d)).10 overbroad under the First Amendment, leaving the new § 230 as the dominant

force for securing decency on the Internet. See Reno

, 521 U.S. at 849.

Section 230 overruled Stratton

‐ Oakmont through two interlocking

provisions, both of which survived the legislative process unscathed. The first,

which is at issue in this case, states that “[n]o provider or user of an interactive

computer service shall be treated as the publisher or speaker of any information

provided by another information content provider.” 47 U.S.C. § 230(c)(1). The

second provision eliminates liability for interactive computer service providers

and users for “any action voluntarily taken in good faith to restrict access to or

availability of material that the provider or user considers to be

. . . objectionable,”

or “any action taken to enable or make available to

. . . others the technical means

to restrict access to [objectionable] material.” Id. § 230(c)(2). These two subsections

tackle, in overlapping fashion, the two jurisprudential moves of the Stratton

‐

Oakmont court: first, that Prodigy’s decision to screen posts for offensiveness

rendered it “a publisher rather than a distributor,” 1995 WL 323710, at *4; and

second, that by making good

‐ faith efforts to remove offensive material Prodigy

became liable for any actionable material it did not remove.11 The legislative history illustrates that in passing § 230 Congress was focused

squarely on protecting minors from offensive online material, and that it sought

to do so by “empowering parents to determine the content of communications

their children receive through interactive computer services.” S. Rep. No. 104

‐ 230,

at 194. The “policy” section of § 230’s text reflects this goal. See 47 U.S.C.

§ 230(b)(3)

‐ (4). 3 It is not surprising, then, that Congress emphasized the narrow

civil liability shield that became § 230(c)(2), rather than the broad rule of

construction laid out in § 230(c)(1). Indeed, the conference committee summarized

§ 230 by stating that it “provides ‘Good Samaritan’ protections from civil liability

for providers or users of an interactive computer service for actions to restrict or

3 The policy section of the statute also expresses Congress’s desire “to preserve the

vibrant and competitive free market that presently exists for the Internet and other

interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C.

§ 230(b)(2). It is therefore true that “Section 230 was enacted, in part

, to maintain the

robust nature of Internet communication.” Ricci v. Teamsters Union Local 456

, 781 F.3d 25,

28 (emphasis added) (quoting Zeran v. Am. Online, Inc.

, 129 F.3d 327, 330 (4th Cir. 1997));

see ante

, at 24. As the legislative history laid out in this opinion shows, however, one

cannot fully understand the purpose of § 230 without considering that it was one

chamber’s proposal in a disagreement between the two houses of Congress over how best

to shield children from indecent material, and that in that contest the House was

principally concerned with two things: (1) overruling Stratton

‐ Oakmont and

(2) preventing “a Federal Computer Commission with an army of bureaucrats regulating

the Internet.” 141 Cong. Rec. 22,045 (statement of Rep. Cox).12 to enable restriction of access to objectionable online material”—a description that

could just as easily have applied to § 230(c)(2) alone. S. Rep. No. 104

‐ 230, at 194.

Congress also titled the entirety of § 230(c) “Protection for ‘Good Samaritan’

blocking and screening of offensive material,” suggesting that the definitional rule

outlined in § 230(c)(1) may have been envisioned as supporting or working in

tandem with the civil liability shield in § 230(c)(2).

None of this is to say that § 230(c)(1) exempts interactive computer service

providers from publisher treatment only when they remove indecent content.

Statutory text cannot be ignored, and Congress grabbed a bazooka to swat the

Stratton

‐ Oakmont fly. Whatever prototypical situation its drafters may have had in

mind, § 230(c)(1) does not limit its protection to situations involving “obscene

material” provided by others, instead using the expansive word “information.” 4

4 This point—that Congress chose broader language than may have been necessary

to accomplish its primary goal—should not be confused with the Seventh Circuit’s

rationale for § 230(c)(1)’s general application: that “a law’s scope often differs from its

genesis.” See Chi. Lawyers Cmte. for Civil Rights Under Law, Inc. v. Craigslist, Inc.

, 519 F.3d

666, 671 (7th Cir. 2008). True as this axiom might be, it does not apply here—the language

of § 230(c)(1) remained untouched from introduction to passage. Nor is there any

evidence from the legislative record that interest groups altered the statutory language.

But cf. id. (“Once the legislative process gets rolling, interest groups seek (and often

obtain) other provisions.”). That § 230(c)(1)’s breadth flowed from Congress’s desire to13 Illuminating Congress’s original intent does, however, underscore the extent of

§ 230(c)(1)’s subsequent mission creep. Given how far both Facebook’s suggestion

algorithms and plaintiffs’ terrorism claims swim from the shore of congressional

purpose, caution is warranted before courts extend the CDA’s reach any further.

II.

With the CDA’s background in mind, I turn to the text. By its plain terms,

§ 230 does not apply whenever a claim would treat the defendant as “a publisher”

in the abstract, immunizing defendants from liability stemming from any activity

in which one thinks publishing companies commonly engage. Contra ante

, at 30

‐

31, 33

‐ 34, 49. It states, more specifically, that “[n]o provider or user of an interactive

computer service shall be treated as the publisher or speaker of any information

provided by another information content provider.” 47 U.S.C. § 230(c)(1) (emphases

added). “Here grammar and usage establish that ‘the’ is a function word

indicating that a following noun or noun equivalent is definite

. . . .” Nielsen v.

Preap

, 139 S. Ct. 954, 965 (2019) (citation and internal quotation marks omitted).

overrule Stratton

‐ Oakmont

, rather than from mere interest group protectionism, matters.14 The word “publisher” in this statute is thus inextricably linked to the “information

provided by another.” The question is whether a plaintiff’s claim arises from a

third party’s information, and—crucially—whether to establish the claim the court

must necessarily view the defendant, not as a publisher in the abstract, but rather

as the publisher of that third

‐ party information. See FTC v. LeadClick Media, LLC

,

838 F.3d 158, 175 (2d Cir. 2016) (stating inquiry as “whether the cause of action

inherently requires the court to treat the defendant as the ‘publisher or speaker’ of

content provided by another”).

For this reason, § 230(c)(1) does not necessarily immunize defendants from

claims based on promoting content or selling advertising, even if those activities

might be common among publishing companies nowadays. A publisher might

write an email promoting a third

‐ party event to its readers, for example, but the

publisher would be the author of the underlying content and therefore not

immune from suit based on that promotion. See 47 U.S.C. § 230(c)(1), (f)(3).

Similarly, the fact that publishers may sell advertising based on user data does not

immunize the publisher if someone brings a claim based on the publisher’s selling

of the data, because the claim would not treat the defendant as the publisher of a15 third party’s content. Cf. Oberdorf v. Amazon.com Inc.

, No. 18

‐ 1041, 2019 WL

2849153, at *12 (3d Cir. July 3, 2019) (holding that the CDA does not bar claims

against Amazon.com “to the extent that” they “rely on Amazon’s role as an actor

in the sales process,” including both “selling” and “marketing”). Section 230(c)(1)

limits liability based on the function the defendant performs, not its identity.

Accordingly, our precedent does not grant publishers CDA immunity for

the full range of activities in which they might engage. Rather, it “bars lawsuits

seeking to hold a service provider liable for its exercise of a publisher’s traditional

editorial functions—such as deciding whether to publish, withdraw, postpone or

alter content” provided by another for publication. LeadClick

, 838 F.3d at 174

(citation and internal quotation marks omitted); accord Oberdorf

, 2019 WL 2849153,

at *10; Jane Doe No. 1 v. Backpage.com, LLC

, 817 F.3d 12, 19 (1st Cir. 2016); Jones v.

Dirty World Entm’t Recordings LLC

, 755 F.3d 398, 407 (6th Cir. 2014); Barnes v.

Yahoo!, Inc.

, 570 F.3d 1096, 1102 (9th Cir. 2009); Zeran

, 129 F.3d at 330; see Klayman

v. Zuckerberg

, 753 F.3d 1354, 1359 (D.C. Cir. 2014); Ben Ezra, Weinstein, & Co., Inc. v.

Am. Online Inc.

, 206 F.3d 980, 986 (10th Cir. 2000). For instance, a claim against a

newspaper based on the content of a classified ad (or the decision to publish or16 withdraw that ad) would fail under the CDA not because newspapers traditionally

publish classified ads, but rather because such a claim would necessarily treat the

newspaper as the publisher of the ad

‐ maker’s content. Similarly, the newspaper

does not act as an “information content provider”—and thus maintains its CDA

protection—when it decides to run a classified ad because it neither “creates” nor

“develops” the information in the ad. 47 U.S.C. § 230(f)(3).

This case is different. Looking beyond Facebook’s “broad statements of

immunity” and relying “rather on a careful exegesis of the statutory language,”

Barnes

, 570 F.3d at 1100, the CDA does not protect Facebook’s friend

‐ and content

‐

suggestion algorithms. A combination of two factors, in my view, confirms that

claims based on these algorithms do not inherently treat Facebook as the publisher

of third

‐ party content. 5 First, Facebook uses the algorithms to create and

communicate its own message: that it thinks you, the reader—you, specifically—

will like this content. And second, Facebook’s suggestions contribute to the

5 Many of Facebook’s algorithms mentioned in the PSAC, such as its third

‐ party

advertising algorithm, its algorithm that places content in a user’s newsfeed, and (based

on the limited description in the PSAC) its video recommendation algorithm, remain

immune under the analysis I set out here.17 creation of real

‐ world social networks. The result of at least some suggestions is

not just that the user consumes a third party’s content. Sometimes, Facebook’s

suggestions allegedly lead the user to become part of a unique global community,

the creation and maintenance of which goes far beyond and differs in kind from

traditional editorial functions.

It is true, as the majority notes, see ante

, at 47, that Facebook’s algorithms

rely on and display users’ content. However, this is not enough to trigger the

protections of § 230(c)(1). The CDA does not mandate “a ‘but

‐ for’ test that would

provide immunity

. . . solely because a cause of action would not otherwise have

accrued but for the third

‐ party content.” HomeAway.com, Inc. v. City of Santa

Monica

, 918 F.3d 676, 682 (9th Cir. 2019). Rather, to fall within § 230(c)(1)’s radius,

the claim at issue must inherently fault the defendant’s activity as the publisher of

specific third

‐ party content. Plaintiffs’ claims about Facebook’s suggestion

algorithms do not do this. The complaint alleges that “Facebook collects detailed

information about its users, including, inter alia, the content they post, type of

content they view or engage with, people they communicate with, groups they

belong to and how they interact with such groups, visits to third party websites,18 apps and Facebook partners.” App’x 345 ¶ 608. Then the algorithms “utilize the

collected data to suggest friends, groups, products, services and local events, and

target ads” based on each user’s input. Id. at 346 ¶ 610.

If a third party got access to Facebook users’ data, analyzed it using a

proprietary algorithm, and sent its own messages to Facebook users suggesting

that people become friends or attend one another’s events, the third party would

not be protected as “the publisher” of the users’ information. Similarly, if Facebook

were to use the algorithms to target its own material to particular users, such that

the resulting posts consisted of “information provided by” Facebook rather than

by “another information content provider,” § 230(c)(1), Facebook clearly would

not be immune for that independent message.

Yet that is ultimately what plaintiffs allege Facebook is doing. The PSAC

alleges that Facebook “actively provides ‘friend suggestions’ between users who

have expressed similar interests,” and that it “actively suggests groups and events

to users.” App’x 346 ¶¶ 612

‐ 13. Facebook’s algorithms thus allegedly provide the

user with a message from Facebook. Facebook is telling users—perhaps implicitly,

but clearly—that they would like these people, groups, or events. In this respect,19 Facebook “does not merely provide a framework that could be utilized for proper

or improper purposes; rather, [Facebook’s] work in developing” the algorithm and

suggesting connections to users based on their prior activity on Facebook,

including their shared interest in terrorism, “is directly related to the alleged

illegality of the site.” Fair Housing Council of San Fernando Valley v. Roommates.Com,

LLC

, 521 F.3d 1157, 1171 (9th Cir. 2008) (en banc). The fact that Facebook also

publishes third

‐ party content should not cause us to conflate its two separate roles

with respect to its users and their information. Facebook may be immune under

the CDA from plaintiffs’ challenge to its allowance of Hamas accounts, since

Facebook acts solely as the publisher of the Hamas users’ content. That does not

mean, though, that it is also immune when it conducts statistical analyses of that

information and delivers a message based on those analyses.

Moreover, in part through its use of friend, group, and event suggestions,

Facebook is doing more than just publishing content: it is proactively creating

networks of people. Its algorithms forge real

‐ world (if digital) connections through

friend and group suggestions, and they attempt to create similar connections in

the physical world through event suggestions. The cumulative effect of20 recommending several friends, or several groups or events, has an impact greater

than the sum of each suggestion. It envelops the user, immersing her in an entire

universe filled with people, ideas, and events she may never have discovered on

her own. According to the allegations in the complaint, Facebook designed its

website for this very purpose. “Facebook has described itself as a provider of

products and services that enable users

. . . to find and connect with other users

. . . .” App’x 250 ¶ 129. CEO Mark Zuckerberg has similarly described Facebook as

“build[ing] tools to help people connect with the people they want,” thereby

“extending people’s capacity to build and maintain relationships.” Id. at 251 ¶ 132.

Of course, Facebook is not the only company that tries to bring people together

this way, and perhaps other publishers try to introduce their readers to one

another. Yet the creation of social networks goes far beyond the traditional

editorial functions that the CDA immunizes.

Another way to consider the CDA immunity question is to “look

. . . to what

the duty at issue actually requires: specifically, whether the duty would

necessarily require an internet company to monitor[, alter, or remove] third

‐ party

content.” HomeAway.com

, 918 F.3d at 682. Here, too, the claims regarding the21 algorithms are a poor fit for statutory immunity. The duty not to provide material

support to terrorism, as applied to Facebook’s use of the algorithms, simply

requires that Facebook not actively use that material to determine which of its

users to connect to each other. It could stop using the algorithms altogether, for

instance. Or, short of that, Facebook could modify its algorithms to stop them

introducing terrorists to one another. None of this would change any underlying

content, nor would it necessarily require courts to assess further the difficult

question of whether there is an affirmative obligation to monitor that content.

In reaching this conclusion, I note that ATA torts are atypical. Most of the

common torts that might be pleaded in relation to Facebook’s algorithms “derive

liability from behavior that is identical to publishing or speaking”—for instance,

“publishing defamatory material; publishing material that inflicts emotional

distress; or

. . . attempting to de

‐ publish hurtful material but doing it badly.”

Barnes

, 570 F.3d at 1107. The fact that Facebook has figured out how to target

material to people more likely to read it does not matter to a defamation claim, for

instance, because the mere act of publishing in the first place creates liability.22 The ATA works differently. Plaintiffs’ material support and aiding and

abetting claims premise liability, not on publishing qua publishing, but rather on

Facebook’s provision of services and personnel to Hamas. It happens that the way

in which Facebook provides these benefits includes republishing content, but

Facebook’s duties under the ATA arise separately from the republication of

content. Cf. id. (determining that liability on a promissory estoppel theory for

promising to remove content “would come not from Yahoo’s publishing conduct,

but from Yahoo’s manifest intention to be legally obligated to do something, which

happens to be removal of material from publication”). For instance, the operation

of the algorithms is allegedly provision of “expert advice or assistance,” and the

message implied by Facebook’s prodding is allegedly a “service” or an attempt to

provide “personnel.” 18 U.S.C. § 2339A(b).

For these reasons, § 230(c)(1) does not bar plaintiffs’ claims.

III.

Even if we sent this case back to the district court, as I believe to be the right

course, these plaintiffs might have proven unable to allege that Facebook’s

matchmaking algorithms played a role in the attacks that harmed them. However,23 assuming arguendo that such might have been the situation here, I do not think we

should foreclose the possibility of relief in future cases if victims can plausibly

allege that a website knowingly brought terrorists together and that an attack

occurred as a direct result of the site’s actions. Though the majority shuts the door

on such claims, today’s decision also illustrates the extensive immunity that the

current formulation of the CDA already extends to social media companies for

activities that were undreamt of in 1996. It therefore may be time for Congress to

reconsider the scope of § 230.

As is so often the case with new technologies, the very qualities that drive

social media’s success—its ease of use, open access, and ability to connect the

world—have also spawned its demons. Plaintiffs’ complaint illustrates how

pervasive and blatant a presence Hamas and its leaders have maintained on

Facebook. Hamas is far from alone—Hezbollah, Boko Haram, the Revolutionary

Armed Forces of Colombia, and many other designated terrorist organizations use

Facebook to recruit and rouse supporters. Vernon Silver & Sarah Frier, Terrorists

Are Still Recruiting on Facebook, Despite Zuckerberg’s Reassurances

, Bloomberg

Businessweek (May 10, 2018), http://www.bloomberg.com/news/articles/2018

‐ 05

‐24 10/terrorists

‐ creep

‐ onto

‐ facebook

‐ as

‐ fast

‐ as

‐ it

‐ can

‐ shut

‐ them

‐ down. Recent news

reports suggest that many social media sites have been slow to remove the

plethora of terrorist and extremist accounts populating their platforms, 6 and that

such efforts, when they occur, are often underinclusive. Twitter, for instance,

banned the Ku Klux Klan in 2018 but allowed David Duke to maintain his account,

see Roose & Conger, supra

, while researchers found that Facebook removed fewer

than half the terrorist accounts and posts those researchers identified, see Waters

& Postings, supra

, at 8; Desmond Butler & Barbara Ortulay, Facebook Auto

‐ Generates

Videos Celebrating Extremist Images

, Assoc. Press (May 9, 2019),

http://apnews.com/f97c24 dab4f34bd0b48b36f2988952a4. Those whose accounts

are removed often pop up again under different names or with slightly different

6 See, e.g.

, Gregory Waters & Robert Postings, Spiders of the Caliphate: Mapping the

Islamic State’s Global Support Network on Facebook 8, Counter Extremism Project (May

2018), http://www.counterextremism.com/sites /default/files/Spiders%20of%20the%20

Caliphate%20%28May%202018%29.pdf; Yaacov Benmeleh & Felice Maranz, Israel Warns

Twitter of Legal Action Over Requests to Remove Content

, Bloomberg (Mar. 20, 2018),

http://www.bloomberg.com/news/articles/2018

‐ 03

‐ 20/israel

‐ warns

‐ twitter

‐ of

‐ legal

‐

steps

‐ over

‐ incitement

‐ to

‐ terrorism; Mike Isaac, Twitter Steps Up Efforts to Thwart

Terrorists’ Tweets

, N.Y. Times (Feb. 5, 2016), http://www.nytimes.com/2016/02/06/

technology/twitter

‐ account

‐ suspensions

‐ terrorism.html; Kevin Roose & Kate Conger,

YouTube to Remove Thousands of Videos Pushing Extreme Views

, N.Y. Times (June 5, 2019),

http://www.nytimes.com/2019/06/05/business/youtube

‐ remove

‐ extremist

‐ videos.html.25 language in their profiles, playing a perverse and deadly game of Whack

‐ a

‐ Mole

with Silicon Valley. See Isaac, supra ; Silver & Frier, supra

.

Of course, the failure to remove terrorist content, while an important policy

concern, is immunized under § 230 as currently written. Until today, the same

could not have been said for social media’s unsolicited, algorithmic spreading of

terrorism. Shielding internet companies that bring terrorists together using

algorithms could leave dangerous activity unchecked.

Take Facebook. As plaintiffs allege, its friend

‐ suggestion algorithm appears

to connect terrorist sympathizers with pinpoint precision. For instance, while two

researchers were studying Islamic State (“IS”) activity on Facebook, one “received

dozens of pro

‐ IS accounts as recommended friends after friending just one pro

‐ IS

account.” Waters & Postings, supra

, at 78. More disturbingly, the other “received

an influx of Philippines

‐ based IS supporters and fighters as recommended friends

after liking several non

‐ extremist news pages about Marawi and the Philippines

during IS’s capture of the city.” Id. News reports indicate that the friend

‐

suggestion feature has introduced thousands of IS sympathizers to one another.

See Martin Evans, Facebook Accused of Introducing Extremists to One Another Through26 ‘Suggested Friends’ Feature

, The Telegraph (May 5, 2018),

http://www.telegraph.co. uk/news/2018/05/05/facebook

‐ accused

‐ introducing

‐

extremists

‐ one

‐ another

‐ suggested.

And this is far from the only Facebook algorithm that may steer people

toward terrorism. Another turns users’ declared interests into audience categories

to enable microtargeted advertising. In 2017, acting on a tip, ProPublica sought to

direct an ad at the algorithmically

‐ created category “Jew hater”—which turned

out to be real, as were “German Schutzstaffel,” “Nazi Party,” and “Hitler did

nothing wrong.” Julia Angwin et al., Facebook Enabled Advertises to Reach ‘Jew

Haters

, ’ ProPublica (Sept. 14, 2017), https://www.propublica.org/article/facebook

‐

enabled

‐ advertisers

‐ to

‐ reach

‐ jew

‐ haters. As the “Jew hater” category was too

small for Facebook to run an ad campaign, “Facebook’s automated system

suggested ‘Second Amendment’ as an additional category

. . . presumably because

its system had correlated gun enthusiasts with anti

‐ Semites.” Id.

That’s not all. Another Facebook algorithm auto

‐ generates business pages

by scraping employment information from users’ profiles; other users can then

“like” these pages, follow their posts, and see who else has liked them. Butler &27 Ortutay, supra

. ProPublica reports that extremist organizations including al

‐ Qaida,

al

‐ Shabab, and IS have such auto

‐ created pages, allowing them to recruit the

pages’ followers. Id. The page for al

‐ Qaida in the Arabian Peninsula included the

group’s Wikipedia entry and a propaganda photo of the damaged USS Cole,

which the group had bombed in 2000. Id. Meanwhile, a fourth algorithm integrates

users’ photos and other media to generate videos commemorating their previous

year. Id. Militants get a ready

‐ made propaganda clip, complete with a thank

‐ you

message from Facebook. Id.

This case, and our CDA analysis, has centered on the use of algorithms to

foment terrorism. Yet the consequences of a CDA

‐ driven, hands

‐ off approach to

social media extend much further. Social media can be used by foreign

governments to interfere in American elections. For example, Justice Department

prosecutors recently concluded that Russian intelligence agents created false

Facebook groups and accounts in the years leading up to the 2016 election

campaign, bootstrapping Facebook’s algorithm to spew propaganda that reached

between 29 million and 126 million Americans. See 1 Robert S. Mueller III, Special

Counsel, Report on the Investigation Into Russian Interference in the 2016 Presidential28 Election 24

‐ 26, U.S. Dep’t of Justice (March 2019), http://www.justice.gov/storage/

report.pdf. Russia also purchased over 3,500 advertisements on Facebook to

publicize their fake Facebook groups, several of which grew to have hundreds of

thousands of followers. Id. at 25

‐ 26. On Twitter, Russia developed false accounts

that impersonated American people or groups and issued content designed to

influence the election; it then created thousands of automated “bot” accounts to

amplify the sham Americans’ messages. Id. at 26

‐ 28. One fake account received

over six million retweets, the vast majority of which appear to have come from

real Twitter users. See Gillian Cleary, Twitterbots: Anatomy of a Propaganda

Campaign

, Symantec (June 5, 2019), http://www.symantec.com/blogs/threat

‐

intelligence/twitterbots

‐ propaganda

‐ disinformation. Russian intelligence also

harnessed the reach that social media gave its false identities to organize “dozens

of U.S. rallies,” some of which “drew hundreds” of real

‐ world Americans.

Mueller, Report

, supra

, at 29. Russia could do all this only because social media is

designed to target messages like Russia’s to the users most susceptible to them.

While Russia’s interference in the 2016 election is the best

‐ documented

example of foreign meddling through social media, it is not the only one. Federal29 intelligence agencies expressed concern in the weeks before the 2018 midterm

election “about ongoing campaigns by Russia, China and other foreign actors,

including Iran,” to “influence public sentiment” through means “including using

social media to amplify divisive issues.” Press Release, Office of Dir. of Nat’l

Intelligence, Joint Statement from the ODNI, DOJ, FBI, and DHS: Combatting

Foreign Influence in U.S. Elections, (Oct. 19, 2018), https://www.dni.gov/index.

php/newsroom/press

‐ releases/item/1915

‐ joint

‐ statement

‐ from

‐ the

‐ odni

‐ doj

‐ fbi

‐

and

‐ dhs

‐ combating

‐ foreign

‐ influence

‐ in

‐ u

‐ s

‐ elections. News reports also suggest

that China targets state

‐ sponsored propaganda to Americans on Facebook and

purchases Facebook ads to amplify its communications. See Paul Mozur, China

Spreads Propaganda to U.S. on Facebook, a Platform It Bans at Home

, N.Y. Times (Nov.

8, 2017), https://www.nytimes.com/ 2017/11/08/technology/china

‐ facebook.html.

Widening the aperture further, malefactors at home and abroad can

manipulate social media to promote extremism. “Behind every Facebook ad,

Twitter feed, and YouTube recommendation is an algorithm that’s designed to

keep users using: It tracks preferences through clicks and hovers, then spits out a

steady stream of content that’s in line with your tastes.” Katherine J. Wu, Radical30 Ideas Spread Through Social Media. Are the Algorithms to Blame?

, PBS (Mar. 28, 2019),

https://www.pbs.org/wgbh /nova/article/radical

‐ ideas

‐ social

‐ media

‐ algorithms.

All too often, however, the code itself turns those tastes sour. For example, one

study suggests that manipulation of Facebook’s news feed influences the mood of

its users: place more positive posts on the feed and users get happier; focus on

negative information instead and users get angrier. Adam D. I. Kramer et al.,

Experimental Evidence of Massive

‐ Scale Emotional Contagion Through Social Networks

,

111 PNAS 8788, 8789 (2014). This can become a problem, as Facebook’s algorithm

“tends to promote the most provocative content” on the site. Max Fisher, Inside

Facebook’s Secret Rulebook for Global Political Speech

, N.Y. Times (Dec. 27, 2018),

http://www.nytimes.com/ 2018/12/27/world/facebook

‐ moderators.html. Indeed,

“[t]he Facebook News Feed environment brings together, in one place, many of

the influences that have been shown to drive psychological aspects of

polarization.” Jaime E. Settle, Frenemies: How Social Media Polarizes America (2018).

Likewise, YouTube’s video recommendation algorithm—which leads to more

than 70 percent of time people spend on the platform—has been criticized for

shunting visitors toward ever more extreme and divisive videos. Roose & Conger,31 supra ; see Jack Nicas, How YouTube Drives People to the Internet’s Darkest Corners

,

Wall St. J. (Feb. 7, 2018), https://www.wsj.com/articles/how

‐ youtube

‐ drives

‐

viewers

‐ to

‐ the

‐ internets

‐ darkest

‐ corners

‐ 1518020478. YouTube has fine

‐ tuned its

algorithm to recommend videos that recalibrate users’ existing areas of interest

and steadily steer them toward new ones—a modus operandi that has reportedly

proven a real boon for far

‐ right extremist content. See Kevin Roose, The Making of

a YouTube Radical

, N.Y. Times (June 8, 2019), http://www.nytimes.com/interactive/

2019/06/08/technology/youtube

‐ radical.html.

There is also growing attention to whether social media has played a

significant role in increasing nationwide political polarization. See Andrew

Soergel, Is Social Media to Blame for Political Polarization in America?

, U.S. News &

World Rep. (Mar. 20, 2017), https://www.usnews.com/news/articles/2017

‐ 03

‐ 20/is

‐

social

‐ media

‐ to

‐ blame

‐ for

‐ political

‐ polarization

‐ in

‐ america. The concern is that

“web surfers are being nudged in the direction of political or unscientific

propaganda, abusive content, and conspiracy theories.” Wu, Radical Ideas

, supra

.

By surfacing ideas that were previously deemed too radical to take seriously,

social media mainstreams them, which studies show makes people “much more32 open” to those concepts. Max Fisher & Amanda Taub, How Everyday Social Media

Users Become Real

‐ World Extremists

, N.Y. Times (Apr. 25, 2018),

http://www.nytimes.com/201 8/04/25/world/asia/facebook

‐ extremism.html. At its

worst, there is evidence that social media may even be used to push people toward

violence. 7 The sites are not entirely to blame, of course—they would not have such

success without humans willing to generate and to view extreme content.

Providers are also tweaking the algorithms to reduce their pull toward hate speech

and other inflammatory material. See Isaac, supra ; Roose & Conger, supra

. Yet the

dangers of social media, in its current form, are palpable.

While the majority and I disagree about whether § 230 immunizes

interactive computer services from liability for all these activities or only some, it

7 See, e.g.

, Sarah Marsh, Social Media Related to Violence by Young People, Say Experts

,

The Guardian (Apr. 2, 2018), https://www.theguardian.com/media/2018/apr/02/social

‐

media

‐ violence

‐ young

‐ people

‐ gangs

‐ say

‐ experts; Kevin Roose, A Mass Murder of, and for,

the Internet

, N.Y. Times (Mar. 15, 2019), https://www.nytimes.com/2019/03/15/

technology/facebook

‐ youtube

‐ christchurch

‐ shooting.html; Craig Timberg et al., The New

Zealand Shooting Shows How TouTube and Facebook Spread Hate and Violent Images—Yet

Again

, Wash. Post (Mar. 15, 2019), https://www.washingtonpost.com/technology/

2019/03/15/facebook

‐ youtube

‐ twitter

‐ amplified

‐ video

‐ christchurch

‐ mosque

‐ shooting;

Julie Turkewitz & Kevin Roose, Who Is Robert Bowers, the Suspect in the Pittsburgh

Synagogue Shooting?

, N.Y. Times (Oct. 27, 2018), https://www.nytimes.com/2018/

10/27/us/robert

‐ bowers

‐ pittsburgh

‐ synagogue

‐ shooter.html.33 is pellucid that Congress did not have any of them in mind when it enacted the

CDA. The text and legislative history of the statute shout to the rafters Congress’s

focus on reducing children’s access to adult material. Congress could not have

anticipated the pernicious spread of hate and violence that the rise of social media

likely has since fomented. Nor could Congress have divined the role that social

media providers themselves would play in this tale. Mounting evidence suggests

that providers designed their algorithms to drive users toward content and people

the users agreed with—and that they have done it too well, nudging susceptible

souls ever further down dark paths. By contrast, when the CDA became law, the

closest extant ancestor to Facebook (and it was still several branches lower on the

evolutionary tree) was the chatroom or message forum, which acted as a digital

bulletin board and did nothing proactive to forge off

‐ site connections. 8

8 See Caitlin Dewey, A Complete History of the Rise and Fall—and Reincarnation!—of

the Beloved ‘90s Chatroom

, Wash. Post (Oct. 30, 2014), http://www.washingtonpost.com/

news/the

‐ intersect/wp/2014/10/30/a

‐ complete

‐ history

‐ of

‐ the

‐ rise

‐ and

‐ fall

‐ and

‐

reincarnation

‐ of

‐ the

‐ beloved

‐ 90s

‐ chatroom; see also Then and Now: A History of Social

Networking Sites

, CBS News, http://www.cbsnews.com/pictures/then

‐ and

‐ now

‐ a

‐ history

‐

of

‐ social

‐ networking

‐ sites (last accessed July 9, 2019) (detailing the evolution of social

media sites from Classmates, launched only “as a list of school affiliations” in December

1995; to “the very first social networking site” Six Degrees, which launched in May 1997

but whose networks were limited “due to the lack of people connected to the Internet”;34 Whether, and to what extent, Congress should allow liability for tech

companies that encourage terrorism, propaganda, and extremism is a question for

legislators, not judges. Over the past two decades “the Internet has outgrown its

swaddling clothes,” Roommates.Com

, 521 F.3d at 1175 n.39, and it is fair to ask

whether the rules that governed its infancy should still oversee its adulthood. It is

undeniable that the Internet and social media have had many positive effects

worth preserving and promoting, such as facilitating open communication,

dialogue, and education. At the same time, as outlined above, social media can be

manipulated by evildoers who pose real threats to our democratic society. A

healthy debate has begun both in the legal academy 9 and in the policy

to Friendster, launched in March 2002 and “credited as giving birth to the modern social

media movement”; to Facebook, which was “rolled out to the public in September 2006”).

9 See, e.g.

, Danielle Keats Citron & Benjamin Wittes, The Problem Isn ʹ t Just Backpage:

Revising Section 230 Immunity

, 2 Geo. L. Tech. Rev. 453, 454

‐ 55 (2018); Jeff Kosseff,

Defending Section 230: The Value of Intermediary Immunity

, 15 J. Tech. L. & Pol ʹ y 123, 124

(2010); Daniela C. Manzi, Managing the Misinformation Marketplace: The First Amendment

and the Fight Against Fake News

, 87 Fordham L. Rev. 2623, 2642

‐ 43 (2019). Much of the

enterprising legal scholarship debating the intersection of social media, terrorism, and

the CDA comes from student Notes. See, e.g.

, Jaime E. Freilich, Note, Section 230’s Liability

Shield in the Age of Online Terrorist Recruitment

, 83 Brook. L. Rev. 675, 690

‐ 91 (2018); Anna

Elisabeth Jayne Goodman, Note and Comment, When You Give a Terrorist a Twitter:

Holding Social Media Companies Liable for their Support of Terrorism

, 46 Pepp. L. Rev. 147,

182

‐ 86 (2018); Nicole Phe, Note, Social Media Terror: Reevaluating Intermediary Liability35 community 10 about changing the scope of § 230. Perhaps Congress will clarify

what I believe the text of the provision already states: that the creation of social

networks reaches beyond the publishing functions that § 230 protects. Perhaps

Congress will engage in a broader rethinking of the scope of CDA immunity. Or

perhaps Congress will decide that the current regime best balances the interests

involved. In the meantime, however, I cannot join my colleagues’ decision to

immunize Facebook’s friend

‐ and content

‐ suggestion algorithms from judicial

scrutiny. I therefore must in part respectfully dissent, as I concur in part.

Under the Communications Decency Act

, 51 Suffolk U. L. Rev. 99, 126

‐ 30 (2018).

10 See, e.g.

, Tarleton Gillespie, How Social Netowrks Set the Limits of What We Can Say

Online

, Wired (June 26, 2018), http://www.wired.com/story/how

‐ social

‐ networks

‐ set

‐ the

‐

limits

‐ of

‐ what

‐ we

‐ can

‐ say

‐ online; Christiano Lima, How a Widening Political Rift Over

Online Liability Is Splitting Washington

, Politico (July 9, 2019), http://www.politico.com/

story/2019/07/09/online

‐ industry

‐ immunity

‐ section

‐ 230

‐ 1552241; Mark Sullivan, The

1996 Law That Made the Web Is in the Crosshairs

, Fast Co. (Nov. 29, 2018),

http://www.fastcompany.com/90273352/maybe

‐ its

‐ time

‐ to

‐ take

‐ away

‐ the

‐ outdated

‐ loophole

‐ that

‐ big

‐ tech

‐ exploits; cf. Darrell M. West & John R. Allen, How Artificial

Intelligence Is Transforming the World

, Brookings (Apr. 24, 2018),

http://www.brookings.edu/research/how

‐ artificial

‐ intelligence

‐ is

‐ transforming

‐ the

‐

world (“The malevolent use of AI exposes individuals and organizations to unnecessary

risks and undermines the virtues of the emerging technology.”).