FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REYNALDO GONZALEZ; THE

ESTATE OF NOHEMI GONZALEZ;

BEATRIZ GONZALEZ, Individually

and as Administrator of the Estate

of Nohemi Gonzalez; JOSE

HERNANDEZ; REY GONZALEZ;

PAUL GONZALEZ,

Plaintiffs-Appellants,

v.

GOOGLE LLC,

Defendant-Appellee.

No. 18-16700

D.C. No.

4:16-cv-03282-

DMR

Appeal from the United States District Court

for the Northern District of California

Donna M. Ryu, Magistrate Judge, Presiding
2 GONZALEZ V. GOOGLE

MEHIER TAAMNEH; LAWRENCE

TAAMNEH; SARA TAAMNEH;

DIMANA TAAMNEH,

Plaintiffs-Appellants,

v.

TWITTER, INC.; GOOGLE LLC;

FACEBOOK, INC.,

Defendants-Appellees.

No. 18-17192

D.C. No.

3:17-cv-04107-

EMC

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding
GONZALEZ V. GOOGLE 3

GREGORY CLAYBORN, Individually

and as Successor-In-Interest of the

Estate of SIERRA CLAYBORN; KIM

CLAYBORN; TAMISHIA CLAYBORN;

VANESSA NGUYEN, Individually

and as Successor-In-Interest of the

Estate of TIN NGUYEN; TRUNG DO;

JACOB THALASINOS; JAMES

THALASINOS,

Plaintiffs-Appellants,

v.

TWITTER, INC.; FACEBOOK, INC.;

GOOGLE LLC,

Defendants-Appellees.

No. 19-15043

D.C. Nos.

3:17-cv-06894-LB

3:18-cv-00543-LB

OPINION

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted March 26, 2020

San Francisco, California

Filed June 22, 2021

Before: Ronald M. Gould, Marsha S. Berzon, and

Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Concurrence by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Gould
4 GONZALEZ V. GOOGLE

SUMMARY*

Anti-Terrorism Act

The panel addressed appeals from the district court’s

dismissal of three actions seeking damages under the AntiTerrorism Act against Google, Twitter, and Facebook on the

basis that defendants’ social media platforms allowed ISIS to

post videos and other content to communicate the terrorist

group’s message, to radicalize new recruits, and to generally

further its mission. The panel affirmed the judgments in the

Gonzalez and Clayborn appeals and reversed and remanded

in Taamneh.

Members of the families of victims of terrorism in Paris,

Istanbul, and San Bernardino alleged that Google, Twitter,

and Facebook were directly and secondarily liable for ISIS’s

acts of international terrorism. The Gonzalez plaintiffs

brought claims for both direct and secondary liability against

Google. The district court concluded that most of plaintiffs’

claims were barred pursuant to 47 U.S.C. § 230 of the

Communications Decency Act, and the direct liability claims

failed to adequately allege proximate cause. In the Taamneh

and Clayborn cases, the district court concluded that plaintiffs

failed to plausibly allege a secondary liability claim against

Google, Twitter, and Facebook.

The panel held that the district court in Gonzalez properly

ruled that § 230 barred most of plaintiffs’ claims. The panel

further held that the Gonzalez plaintiffs failed to state an

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GONZALEZ V. GOOGLE 5

actionable claim as to their remaining theories of liability. In

Taamneh, the panel held that the district court erred by ruling

that plaintiffs failed to state a claim for aiding-and-abetting

liability under the ATA. In Clayborn, the panel concluded

that the district court correctly held that plaintiffs failed to

plausibly plead their claim for aiding-and-abetting liability.

Addressing Gonzalez, the panel held that the civil

remedies section of the ATA permits United States nationals

to recover damages for injuries suffered “by reason of acts of

international terrorism.” The Justice Against Sponsors of

International Terrorism Act of 2016 (JASTA) amended the

ATA to include secondary civil liability for aiding and

abetting, or conspiring to commit, acts of international

terrorism. Section 230 of the Communications Decency Act

protects websites from liability for material posted on the

website by someone else. The panel held that the

presumption against the extraterritorial application of federal

statutes did not prevent § 230 from applying to the Gonzalez

plaintiffs’ claims because the relevant conduct took place in

the United States. The panel concluded that JASTA did not

impliedly repeal § 230. Agreeing with the First and Second

Circuits, the panel held that the exception set forth in

§ 230(e)(1), concerning impairment of the enforcement of

federal criminal statutes, does not extend to actions for civil

damages. Thus, the Gonzalez plaintiffs’ claims were not

categorically excluded from the reach of § 230 immunity. 

The Gonzalez plaintiffs argued that the immunity afforded

by § 230 did not bar their claims because § 230 immunizes

only those who publish content created by third parties, and

their claims were directed to content created by Google. 

Google argued that the plaintiffs impermissibly sought to

treat Google as a publisher of content created by third parties,
6 GONZALEZ V. GOOGLE

presumably ISIS, on YouTube. In Part III.E of its opinion,

the panel affirmed the district court’s ruling that § 230 barred

all of plaintiffs’ claims except to the extent their complaint

presented claims premised on the allegation that Google

shared advertising revenue with ISIS. Section 230(c)

precludes liability for “(1) a provider or user of an interactive

computer service (2) whom a plaintiff seeks to treat . . . as a

publisher or speaker (3) of information provided by another

information content provider.” The panel concluded that

plaintiffs’ claims did not inherently require the court to treat

Google as the publisher or speaker of content provided by

ISIS, and the duty that plaintiffs alleged Google violated did

not derive from Google’s status or conduct as a publisher or

speaker. The panel concluded that Google did not create or

develop content by making a material contribution to its

alleged unlawfulness when it created the “mosaics” by which

ISIS videos were delivered. The panel held that the court’s

case law foreclosed the argument that Google’s pairing of

ISIS content with selected advertising and other videos

vitiated § 230 immunity. Accepting as true plaintiffs’

allegation that Google’s algorithms recommended ISIS

content to users, and agreeing with the Second Circuit, the

panel wrote that the algorithms did not treat ISIS-created

content differently than any other third-party created content,

and thus were entitled to § 230 immunity. 

In Part III.F of its opinion, the panel held that § 230 did

not bar the Gonzalez plaintiffs’ claims premised on the

allegation that because it shared advertising revenue with

ISIS, Google should be held directly liable for providing

material support to ISIS and secondarily liable for providing

substantial assistance to ISIS.
GONZALEZ V. GOOGLE 7

In Parts IV and V, the panel held that the Gonzalez

plaintiffs did not adequately allege claims for direct or

secondary liability under the ATAbased on a revenue-sharing

theory. As to direct liability, plaintiffs failed to plausibly

allege that Google directly perpetrated an act of international

terrorism because they did not allege that Google’s actions

were motivated by anything other than economic selfenrichment. As to secondary liability, plaintiffs did not state

a claim on either a theory of aiding and abetting or a theory

of conspiracy liability.

In Part VI, reversing the district court’s dismissal of the

Taamneh action, the panel held that the Taamneh plaintiffs

adequately stated a claim for aiding-and-abetting liability.

In Part VII, affirming the dismissal of the Clayborn

action, the panel held that because the Clayborn plaintiffs did

not plausibly allege that ISIS committed, planned or

authorized the terrorist attack in San Bernardino, they did not

adequately state a claim for aiding and abetting an act of

international terrorism.

Judge Berzon concurred in the majority opinion in full. 

She wrote separately to explain that, although the panel was

bound by Ninth Circuit precedent compelling the outcome in

this case, she joined the growing chorus of voices calling for

a more limited reading of the scope of § 230 immunity. 

Judge Berzon urged the court to reconsider its precedent en

banc to the extent that it holds that § 230 immunity extends

to the use of machine-learning algorithms to recommend

content and connections to users.

Judge Gould concurred in the majority opinion in its Parts

I and II, Part III.A through III.D, Part III.F, and Part VI and
8 GONZALEZ V. GOOGLE

dissented in part as to Part III.E and Parts IV, V, and VII. 

Judge Gould wrote that he concurred insofar as the majority

would reverse in part the dismissal of revenue-sharing claims

in Gonzalez, and insofar as it would reverse the district

court’s judgment in Taamneh that the complaint failed to

adequately state a claim under the ATA. Judge Gould wrote

that he dissented as to the majority’s dismissal of the

Gonzalez claims on grounds of § 230 immunity, and of

failure to state a claim for direct or secondary liability under

the ATA, because of the majority’s mistaken conclusion that

there was no act of international terrorism, and he also would

hold that the complaint adequately alleged that there was

proximate cause supporting damages on those claims. Judge

Gould agreed that claims could proceed in the Taamneh case,

and accordingly agreed with reversing and remanding in that

case. On the Clayborn case, Judge Gould dissented because

the majority’s conception of an attack authorized by ISIS was

inconsistent with the allegations of the operative complaint

and well-established principles of tort and agency law.
GONZALEZ V. GOOGLE 9

COUNSEL

Keith Altman (argued) and Daniel W. Weininger (argued),

Excolo Law, Southfield, Michigan, Plaintiffs-Appellants

Reynaldo Gonzalez, Mehier Taamneh, Lawrence Taamneh,

Sara Taamneh, Dimana Taamneh, Gregory Clayborn, Kim

Clayborn, Tamishia Clayborn, Vanessa Nguyen, Trung Do,

Jacob Thalasinos, and James Thalasinos.

Robert J. Tolchin (argued) and Meir Katz, Berkman Law

Office LLC, Brooklyn, New York; for Plaintiffs-Appellants

Estate of Nohemi Gonzalez; Beatriz Gonzalez, Jose

Hernandez, Rey Gonzalez, and Paul Gonzalez.

Brian M. Willen (argued), Wilson Sonsini Goodrich &

Rosati, New York, New York; David H. Kramer, Lauren

Gallo White, and Kelly M. Knoll, Wilson Sonsini Goodrich

& Rosati, Palo Alto, California; for Defendant-Appellee

Google LLC.

Kristin A. Linsley (argued) and Jacob T. Spencer, Gibson

Dunn & Crutcher LLP, San Francisco, California; for

Defendant-Appellee Facebook Inc.

Seth P. Waxman, Patrick J. Carome, and Ari Holtzblatt,

Wilmer Cutler Pickering Hale & Dorr LLP, Washington,

D.C., for Defendant-Appellee Twitter Inc.

Aaron Mackey and Sophia Cope, Electronic Frontier

Foundation, San Francisco, California, for Amicus Curiae

Electronic Frontier Foundation.
10 GONZALEZ V. GOOGLE

OPINION

CHRISTEN, Circuit Judge:

We address three appeals arising from separate acts of

terrorism—one in Paris, one in Istanbul, and one in San

Bernardino—in which Nohemi Gonzalez, Nawras Alassaf,

Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos lost

their lives. The foreign terrorist organization known as ISIS

took responsibility for the attacks in Paris and Istanbul and

lauded the attack in San Bernardino after the fact. Plaintiffs

are members of the victims’ families.

Plaintiffs seek damages pursuant to the Anti-Terrorism

Act (ATA), 18 U.S.C. § 2333. The ATA allows United

States nationals to recover damages for injuries suffered “by

reason of an act of international terrorism,” id. § 2333(a), but

the defendant in these cases is not ISIS. Instead, plaintiffs

allege that Google, Twitter, and Facebook are directly and

secondarily liable for the five murders at issue in these cases. 

The complaints allege that defendants’ social media platforms

allowed ISIS to post videos and other content to communicate

the terrorist group’s message, to radicalize new recruits, and

to generally further its mission. Plaintiffs also claim that

Google placed paid advertisements in proximity to

ISIS-created content and shared the resulting ad revenue with

ISIS. In these and other ways, all three complaints allege

defendants are directly liable for committing acts of

international terrorism pursuant § 2333(a) of the ATA, and

secondarily liable for conspiring with, and aiding and
GONZALEZ V. GOOGLE 11

abetting, ISIS’s acts of international terrorism pursuant to

§ 2333(d).1

This opinion addresses three separate appeals. The

Gonzalez appeal concerns claims for both direct and

secondary liability against Google. In that case, the district

court granted Google’s motion to dismiss, concluding that

most of the Gonzalez Plaintiffs’ claims were barred pursuant

to 47 U.S.C. § 230 of the Communications Decency Act

(CDA), and that the Gonzalez Plaintiffs’ direct liability

claims failed to adequately allege proximate cause. The

Taamneh and Clayborn appeals concern claims for secondary

liability against Google, Twitter, and Facebook. In both of

these cases, the district court granted defendants’ motions to

dismiss on the grounds that the plaintiffs failed to plausibly

allege a secondary liability claim under the ATA.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

conclude the district court in Gonzalez properly ruled that

§ 230 bars most of the Gonzalez Plaintiffs’ claims, and that

the Gonzalez Plaintiffs failed to state an actionable claim as

to their remaining theories of liability asserted pursuant to the

ATA. In Taamneh, we conclude the district court erred by

ruling the Plaintiffs failed to state a claim for aiding-andabetting liability under the ATA. The district court did not

reach § 230 immunity in Taamneh. In Clayborn, we

conclude the district court correctly held that Plaintiffs failed

1 The acronym “ISIS” refers to “The Islamic State of Iraq and Syria.” 

ISIS is occasionally referred to as “ISIL” or “The Islamic State of Iraq and

the Levant.” Both names are derived from the Arabic “ad-Dawlah alIslamiyah fil-‘Iraq wash-Sham.” The organization later shortened its

name to “ad-Dawlah al-Islamiyah” (“The Islamic State” or “IS”). For

simplicity, we use the name ISIS.
12 GONZALEZ V. GOOGLE

to plausibly plead their claimfor aiding-and-abetting liability. 

We therefore affirmthe judgments in Gonzalez and Clayborn,

and reverse and remand for further proceedings in Taamneh.

I

A

Nohemi Gonzalez, a 23-year-old U.S. citizen, studied in

Paris, France during the fall of 2015. On November 13,

2015, when Nohemi was enjoying an evening meal with her

friends at a café, three ISIS terrorists—AbdelhamidAbaaoud,

BrahimAbdeslam, and Chakib Akrouh—fired into the crowd

of diners, killing her. This tragic event occurred within a

broader series of attacks perpetrated by ISIS in Paris on

November 13 (the “Paris Attacks”). ISIS carried out several

suicide bombings and mass shootings in Paris that day,

including a massacre at the Bataclan theatre. The day after

the Paris Attacks, ISIS claimed responsibility by issuing a

written statement and releasing a YouTube video.

The operative Gonzalez complaint alleges that at the time

of the Paris Attacks, ISIS had become one of the largest and

most widely recognized terrorist organizations in the world. 

The complaint also alleges that ISIS carried out violent

terrorist attacks as a means of instilling terror in the public

and communicating its broader objectives, and that ISIS’s

messages—communicated before, during and after its terror

attacks—are essential components of generating the physical,

emotional, and psychological impact ISIS desires to achieve.

Google owns YouTube, a global online service used to

post, share, view, and comment on videos related to a vast

range of topics. Users can post content directly on YouTube,
GONZALEZ V. GOOGLE 13

though Google has the ability to remove any content. When

Google receives a complaint about a video, it reviews the

video and removes it if it violates Google’s content policies.

The Gonzalez complaint alleges that YouTube “has

become an essential and integral part of ISIS’s program of

terrorism,” and that ISIS uses YouTube to recruit members,

plan terrorist attacks, issue terrorist threats, instill fear, and

intimidate civilian populations. According to the Gonzalez

Plaintiffs, YouTube provides “a unique and powerful tool of

communication that enables ISIS to achieve [its] goals.”

With regard to the Paris Attacks in particular, the

Gonzalez Plaintiffs allege that two of the twelve ISIS

terrorists who carried out the attacks used online social media

platforms to post links to ISIS recruitment YouTube videos

and “jihadi YouTube videos.” Abaaoud, one of the attackers

in the café shooting, appeared in an ISIS YouTube video

from March 2014, and delivered a monologue aimed at

recruiting jihadi fighters to join ISIS.

The Gonzalez Plaintiffs’ theory of liability generally

arises from Google’s recommendations of content to users. 

These recommendations are based upon the content and

“what is known about the viewer.” Specifically, the

complaint alleges Google uses computer algorithms to match

and suggest content to users based upon their viewing history. 

The Gonzalez Plaintiffs allege that, in this way, Google has

“recommended ISIS videos to users” and enabled users to

“locate other videos and accounts related to ISIS,” and that by

doing so, Google assists ISIS in spreading its message. The

Gonzalez Plaintiffs’ theory is that YouTube is “useful[] in

facilitating social networking among jihadists” because it
14 GONZALEZ V. GOOGLE

provides “[t]he ability to exchange comments about videos

and to send private messages to other users.”

The complaint also asserts that Google pairs videos with

advertisements and that it targets advertisements based on

information about the advertisement, the user, and the posted

video. The complaint alleges that by doing so, Google

exercises control over which advertisements are matchedwith

videos posted by ISIS on YouTube, creating new unique

content for viewers “by choosing which advertisement to

combine with the posted video with knowledge about the

viewer.”

The Gonzalez Plaintiffs’ complaint also alleges that

Google’s practice is to share a percentage of the revenue it

generates from these ads with the users who post the videos. 

Specifically, the complaint alleges that Google “reviewed and

approved ISIS videos, including videos posted by ISISaffiliated users, for monetization through” its placement of

ads on those videos, thereby agreeing to share revenue with

ISIS and ISIS-affiliated users.

According to the Gonzalez Plaintiffs, Google is aware of

ISIS’s presence on YouTube, has received complaints about

ISIS content, has the ability to remove ISIS content from

YouTube, and has “suspended or blocked selected ISISrelated accounts at various times.” The complaint asserts that

in spite of Google’s knowledge and control, Google “did not

make substantial or sustained efforts to ensure that ISIS

would not re-establish the accounts using new identifiers.” 

Instead, the Gonzalez Plaintiffs allege, Google sometimes

declined to remove ISIS accounts because the content posted

by those accounts did not violate YouTube’s policies and, on

other occasions, Google removed only a portion of the
GONZALEZ V. GOOGLE 15

content posted on ISIS-related accounts but permitted the

accounts to remain active.2

Reynaldo Gonzalez, Nohemi’s father, filed an action

against Google, Twitter, and Facebook on June 14, 2016, and

a Second Amended Complaint (SAC) on April 21, 2017. The

SAC joined additional family members and named only

Google as a defendant. According to the SAC, Google aided

and abetted international terrorism and provided material

support to international terrorism by allowing ISIS to use

YouTube. See 18 U.S.C. § 2333(a), (d). Claims One and

Two alleged that Google is secondarily liable for aiding and

abetting acts of international terrorism and for conspiring

with ISIS; Claims Three and Four alleged that Google is

directly liable for providing material support and resources to

ISIS. Google moved to dismiss all of the Gonzalez Plaintiffs’

claims on the grounds that they were barred by § 230 of the

CDA. See 47 U.S.C. § 230(c). The district court granted the

motion to dismiss, but gave the Gonzalez Plaintiffs an

opportunity to amend.

The Third Amended Complaint (TAC) is the operative

complaint. In it, the Gonzalez Plaintiffs added additional

claims. The Plaintiffs allege that Google is secondarily liable

for Nohemi’s death because Google aided and abetted an act

of international terrorism and engaged in a conspiracy with a

2 The Gonzalez Plaintiffs also allege that “Google has tools by which

it can identify, flag, review, and remove ISIS YouTube accounts,” but

improperly focuses primarily “on whether the content posted violates

Google’s own ‘Community Standards,’ rather than examin[ing] whether

the account is being used by or for the benefit” of terrorists. They further

allege that “[e]ven when Google occasionally deletes an account for

violating its Community Standards, it allows these accounts to be quickly

regenerated.”
16 GONZALEZ V. GOOGLE

perpetrator of an act of international terrorism. The Gonzalez

TAC also alleges that Google is directly liable under

§ 2333(a) for providing material support and resources to

ISIS, and for concealing this support, in violation of 18

U.S.C. §§ 2339A, 2339B(a)(1), and 2339C(c).3

Google moved to dismiss the entire TAC based on § 230

immunity, and alternatively moved to dismiss the § 2333(a)

direct liability claims (Claims Three through Six) on the

ground that they failed to plausibly allege Google

proximately caused the Gonzalez Plaintiffs’ injury. The

district court ruled that all of Plaintiffs’ claims were barred by

§ 230, except to the extent Claims Three and Four were

premised on a revenue-sharing theory. The court concluded

that Claims Three through Six failed to plausibly allege

proximate cause. The revenue-sharing claims were dismissed

without prejudice; all the other claims were dismissed with

prejudice. The Gonzalez Plaintiffs did not further amend, but

they did timely appeal.

B

Nawras Alassaf, a Jordanian citizen, visited Istanbul,

Turkey with his wife to celebrate the 2017 New Year. He

was killed on January 1, 2017, when Abdulkadir

Masharipov—an individual affiliated with and trained by

ISIS—carried out a shooting massacre at the Reina nightclub

there (the “Reina Attack”). Masharipov arrived at the Reina

nightclub shortly after midnight and, during a seven-minute

3 Separately, the Gonzalez Plaintiffs allege that Google provided

funds, goods, or services to or for the benefit of global terrorists in

violation of Executive Order No. 13224, 31 C.F.R. Part 594, and

50 U.S.C. § 1705.
GONZALEZ V. GOOGLE 17

attack, fired more than 120 rounds into the crowd of 700

people, killing 39 and injuring 69 others. Masharipov

escaped the nightclub and evaded arrest for over two weeks

but was ultimately apprehended. On the day after the attack,

ISIS issued a statement claiming responsibility for the Reina

Attack.

Twitter is a social networking service, that allows users to

publicly connect with other users and to distribute content

publicly by posting “tweets.” The Taamneh Plaintiffs allege

that Twitter has the ability to remove tweets and accounts, but

does not do so proactively. Instead, Twitter reviews content

that is reported by others as violating its rules.

Facebook is also a social networking service that allows

users to communicate with other users and to share and

distribute content publicly. Facebook has the ability to

remove content posted by its users.

The Taamneh Plaintiffs are relatives of Nawras Alassaf. 

They allege that Google, Twitter, and Facebook were a

critical part of ISIS’s growth. Much like the Gonzalez

complaint, the Taamneh complaint alleges that ISIS uses

defendants’ social media platforms to recruit members, issue

terrorist threats, spread propaganda, instill fear, and

intimidate civilian populations. According to the Taamneh

Plaintiffs, ISIS could not have grown into one of the most

recognizable and feared terrorist organizations without the

effective communications platforms provided by defendants

free of charge.

The Taamneh Plaintiffs’ complaint alleges that ISIS and

its affiliated entities have used YouTube, Twitter, and

Facebook for many years with “little or no interference.” 
18 GONZALEZ V. GOOGLE

“Despite extensive media coverage, complaints, legal

warnings, petitions, congressional hearings, and other

attention for providing [their] online social media platforms

and communications services to ISIS, . . . Defendants

continued to provide these resources and services to ISIS and

its affiliates.” The Taamneh Plaintiffs also allege that

defendants knowingly permitted ISIS and its members and

affiliates to use their platforms, and reviewed ISIS’s use only

in response to third-party complaints. The complaint further

alleges that even when defendants received complaints about

ISIS’s use of their platforms, the defendants “have at various

times determined that ISIS’s use of [their] [s]ervices did not

violate Defendants’ policies,” and therefore “permitted ISISaffiliated accounts to remain active, or removed only a

portion of the content posted on an ISIS-related account . . . .”

The Taamneh Plaintiffs’ claims against Google, Twitter,

and Facebook, allege these defendants aided and abetted an

act of international terrorism, conspired with the perpetrator

of an act of international terrorism, and provided material

support to ISIS, by allowing ISIS to use their social media

platforms. Like the Gonzalez Plaintiffs, the Taamneh

Plaintiffs allege that defendants’ actions violated the ATA. 

Specifically, the Taamneh complaint includes claims for

direct and secondary liability under the ATA, 18 U.S.C.

§ 2333(a), (d), and state-law claims for negligent infliction of

emotional distress and wrongful death.

In response to defendants’ first motion to dismiss, the

Taamneh Plaintiffs amended their complaint once as a matter

of right and added additional claims. The First Amended

Complaint (FAC) is the operative complaint and it alleges

that Google, Twitter, and Facebook are secondarily liable

under § 2333(d) for aiding and abetting an act ofinternational
GONZALEZ V. GOOGLE 19

terrorism and for conspiring with a perpetrator of an act of

international terrorism. The Taamneh complaint also alleges

that Google, Twitter, and Facebook are directly liable under

§ 2333(a) for providing material support and resources to

ISIS, and for concealing this support, in violation of

18 U.S.C. §§ 2339A, 2339B(a)(1), and 2339C(c).4

Defendants moved to dismiss. The district court ruled the

direct liability claims failed to adequately allege proximate

cause, and that the secondary liability claims failed to state a

claim for conspiracy to commit an act of international

terrorism, or for aiding and abetting an act of international

terrorism. The court dismissed the complaint with prejudice,

and the Taamneh Plaintiffs timely appealed.

C

Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos

attended an office holiday party at the Inland Regional Center

in San Bernardino, California on December 2, 2015. Syed

Rizwan Farook, a U.S. citizen, and Tashfeen Malik, Farook’s

wife, entered the building dressed in black and armed with

AR-15 semi-automatic rifles, a .9mm handgun, and

assembled pipe bombs. Farook and Malik indiscriminately

fired more than 100 rounds into the office gathering (the San

Bernardino Attack). At some point during the attack, Malik

declared on her Facebook page the couples’ allegiance and

loyalty to former ISIS leader, Abu Bakr al-Baghdadi. 

Clayborn, Ngyuen, and Thalasinos were among the fourteen

4

 The Taamneh Plaintiffs’ complaint also includes an allegation that

Google, Twitter, and Facebook provided funds, goods, or services to or for

the benefit of global terrorists in violation of Executive Order No. 13224,

31 C.F.R. Part 594, and 50 U.S.C. § 1705.
20 GONZALEZ V. GOOGLE

people murdered in the attack. Twenty-two others were

seriously wounded. After the San Bernardino Attack, Farook

and Malik fled the scene and were killed in a police shootout. 

ISIS issued a statement two days later that “[t]wo followers

of Islamic State attacked several days ago a center in San

Bernardino in California, we pray to God to accept them as

Martyrs.”

The Clayborn Plaintiffs are relatives of Sierra Clayborn,

Tin Nguyen, and Nicholas Thalasinos. Plaintiffs allege that

Twitter, Facebook, and Google aided and abetted

international terrorism and provided material support to

international terrorists in violation of the ATA, by allowing

ISIS to use their platforms. The Clayborn Plaintiffs allege

Farook and Malik were radicalized by ISIS’s use of social

media. This complaint includes direct and secondary liability

claims against all three defendants pursuant to 18 U.S.C.

§§ 2333(a) and (d), 2339A, 2339B, and 2339C, and state-law

claims for negligent infliction of emotional distress and

wrongful death.

Defendants moved to dismiss. The district court granted

the motion and dismissed the Clayborn Plaintiffs’ operative

complaint on the grounds that the direct liability claims failed

to adequately allege proximate cause, and that the secondary

liability claims failed to plausibly allege substantial assistance

or that ISIS committed, planned, or authorized the San

Bernardino Attack. The Clayborn Plaintiffs only appeal the

district court’s ruling that they failed to adequately plead a

secondary liability claim for aiding and abetting international

terrorism under 18 U.S.C. § 2333(d).
GONZALEZ V. GOOGLE 21

II

We review de novo a district court’s order granting a

motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), accepting all factual allegations as true and

construing them in the light most favorable to the nonmoving

party. Fields v. Twitter, Inc., 881 F.3d 739, 743 (9th Cir.

2018).

These appeals concern claims for civil liability under the

ATA. The civil remedies section of the ATA permits United

States nationals to recover damages for injuries suffered “by

reason of an act of international terrorism.” 18 U.S.C.

§ 2333(a). The ATA contains criminal provisions, the

violation of which can give rise to a cause of action under

§ 2333(a) providing other conditions are met. Fields,

881 F.3d at 743. Specifically, 18 U.S.C. §§ 2339A, 2339B,

and 2339C criminalize providing material support for

terrorism, providing material support for foreign terrorist

organizations, and financing terrorism, respectively.5

5 Section 2339A(a) prohibits the provision of “material support or

resources” by anyone “knowing or intending that they are to be used in

preparation for, or in carrying out” any of several enumerated crimes of

terrorism. 18 U.S.C. § 2339A(a). Section 2339B(a)(1) prohibits the

knowing provision of “material support or resources to a foreign terrorist

organization.” Id. § 2339B(a)(1). Section 2339C(c) prohibits the

knowing “conceal[ment] or disguise[] [of] the nature, location, source,

ownership, or control” of any support, resources, or funds, knowing that

such “support or resources are to be provided, or . . . were provided, in

violation of section 2339B.” Id. § 2339C(c). Executive Order No. 13224,

31 C.F.R. Part 594 and 50 U.S.C. § 1705 generally prohibit providing

funds, goods, or services to or for the benefit of designated global

terrorists.
22 GONZALEZ V. GOOGLE

“[I]nternational terrorism” is defined in 18 U.S.C.

§ 2331(1). Acts of international terrorism “involve violent

acts or acts dangerous to human life that are a violation of the

criminal laws of the United States or of any State, or that

would be a criminal violation if committed within the

jurisdiction of the United States or of any State.” 18 U.S.C.

§ 2331(1)(A). The acts must “appear to be intended—(i) to

intimidate or coerce a civilian population; (ii) to influence the

policy of a government by intimidation or coercion; or (iii) to

affect the conduct of a government by mass destruction,

assassination, or kidnapping.” Id. § 2331(1)(B). Finally, the

acts must “occur primarily outside the territorial jurisdiction

of the United States, or transcend national boundaries . . . .” 

Id. § 2331(1)(C).

In 2016, Congress broadened the scope of ATA liability

by enacting the Justice Against Sponsors of Terrorism Act

(JASTA), Pub. L. No. 144-222, 130 Stat. 852 (2016). JASTA

amended the ATA to include secondary civil liability for “any

person who aids and abets, by knowingly providing

substantial assistance, or who conspires with the person who

committed” an act of international terrorism that was

“committed, planned, or authorized” by a foreign terrorist

organization. Pub. L. 114-222, § 2(b), 130 Stat. 852, 854

(2016); 18 U.S.C. § 2333(d). Thus, as amended, the ATA

allows claims for direct liability for committing acts of

international terror pursuant to § 2333(a), or secondary

liability pursuant to § 2333(d) for aiding and abetting, or

conspiring to commit, acts of international terrorism.

III

These cases share some common issues but took different

paths to reach our court. In Gonzalez, the district court
GONZALEZ V. GOOGLE 23

primarily relied on § 230 immunity to conclude that all but

the Gonzalez Plaintiffs’ revenue-sharing claims were barred. 

The district court separately concluded the revenue-sharing

claims failed because the TAC did not plausibly allege that

Google proximately caused Nohemi’s death. The court

allowed the Gonzalez Plaintiffs an opportunity to amend their

revenue-sharing claims, but the plaintiffs declined to do so,

and final judgment was entered. In Taamneh and Clayborn,

the district courts did not consider § 230 immunity. Instead,

the direct liability claims were dismissed for failure to

plausibly allege proximate cause, and the secondary liability

claims were dismissed for failure to plausibly allege liability

for aiding and abetting or conspiracy.

On appeal, the Gonzalez Plaintiffs begin by arguing that

§ 230 does not apply to their claims at all. They make three

arguments in support of this contention: (1) § 230 immunity

has no application to extraterritorial claims; (2) Congress

impliedly repealed § 230 when it amended the ATA in 2016;

and (3) § 230 immunity does not apply to ATA claims based

on criminal statutes. Alternatively, the Gonzalez Plaintiffs

argue that their claims, both revenue-sharing and those

unrelatedto revenue-sharing, survive the application of § 230. 

Finally, the Gonzalez Plaintiffs argue that the TAC

adequately states claims for direct and secondary liability

under the ATA. The Taamneh Plaintiffs and the Clayborn

Plaintiffs argue their complaints adequately allege that

defendants violated the ATA by aiding and abetting an act of

international terrorism.

6 We begin by considering the

6 Though the district court did not address the application of § 230

immunity to the Taamneh Plaintiffs’ claims, defendants raise § 230 on

appeal as an alternative basis for affirmance. We decline to reach this

question in the first instance.
24 GONZALEZ V. GOOGLE

application of § 230 immunity to the Gonzalez Plaintiffs’

claims.

A

Congress enacted the Communications Decency Act as

part of the Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56. Section 230 of the CDA “immunizes

providers of interactive computer services against liability

arising from content created by third parties.” Fair Hous.

Council of San Fernando Valley v. Roommates.Com, LLC,

521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (footnote

omitted). Congress designed § 230 “to promote the free

exchange of information and ideas over the Internet and to

encourage voluntary monitoring for offensive or obscene

material.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099–1100

(9th Cir. 2009) (quoting Carafano v. Metrosplash.com, Inc.,

339 F.3d 1119, 1122 (9th Cir. 2003)). Congress was

concerned with “the ease with which the Internet delivers

indecent or offensive material, especially to minors” and

sought “to empower interactive computer service providers

to self-regulate.” Force v. Facebook, Inc., 934 F.3d 53,

78–79 (2d Cir. 2019) (Katzmann, C.J., concurring in part and

dissenting in part). To avoid chilling speech, Congress

“made a policy choice . . . not to deter harmful online speech

through the separate route of imposing tort liability on

companies that serve as intermediaries for other parties’

potentially injurious messages.” Carafano, 339 F.3d at 1123

(alteration in original) (quoting Zeran v. Am. Online, Inc.,

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

The operative provision, § 230(c)(1), states “[n]o provider

or user of an interactive computer service shall be treated as

the publisher or speaker of any information provided by
GONZALEZ V. GOOGLE 25

another information content provider.” 47 U.S.C.

§ 230(c)(1). We have said that, “[i]n general, this section

protects websites from liability for material posted on the

website by someone else.” Doe v. Internet Brands, Inc.,

824 F.3d 846, 850 (9th Cir. 2016).

Section 230’s use of the phrase “publisher or speaker”

was prompted by a New York state-court decision that held

an internet service provider legally responsible for a

defamatory message posted to one of its message boards. 

Roommates, 521 F.3d at 1163 (citing Stratton Oakmont, Inc.

v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct.

May 24, 1995) (unpublished)). Stratton Oakmont concluded

that the internet service provider “had become a ‘publisher’

under state law because it voluntarily deleted some messages

from its message boards ‘on the basis of offensiveness and

bad taste,’ and was therefore legally responsible for the

content of defamatory messages that it failed to delete.” Id.

(emphasis added) (internal quotationmarks omitted)(quoting

Stratton Oakmont, 1995 WL 323710, at *4). The original

goal of § 230 was modest. By passing § 230, Congress

sought to allow interactive computer services “to perform

some editing on user-generated content without thereby

becoming liable for all defamatory or otherwise unlawful

messages that they didn’t edit or delete.” Id.

B

The Gonzalez Plaintiffs first argue that the presumption

against the extraterritorial application of federal statutes

prevents § 230 from applying to their claims. We disagree.

The presumption against extraterritoriality requires that,

“[a]bsent clearly expressed congressional intent to the
26 GONZALEZ V. GOOGLE

contrary, federal laws will be construed to have only domestic

application.” RJR Nabisco, Inc. v. European Cmty., 136 S.

Ct. 2090, 2100 (2016). The Supreme Court “has established

a two-step framework for deciding questions of

extraterritoriality.” WesternGeco LLC v. ION Geophysical

Corp., 138 S. Ct. 2129, 2136 (2018). “The first step asks

‘whether the presumption against extraterritoriality has been

rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101). 

The presumption is rebutted only when “the text [of the

statute] provides a ‘clear indication of an extraterritorial

application.’” Id. (quoting Morrison v. Nat’l Austl. Bank

Ltd., 561 U.S. 247, 255 (2010)). If the presumption is not

rebutted by the statute’s text, “the second step of [the]

framework asks ‘whether the case involves a domestic

application of the statute.’” Id. (quoting RJR Nabisco, 136 S.

Ct. at 2101). This step requires the court to identify the

statute’s focus, and ask “whether the conduct relevant to that

focus occurred in United States territory.” Id. “If it did, then

the case involves a permissible domestic application of the

statute.” Id.

The Gonzalez Plaintiffs argue that RJR Nabisco

recognized an exception to this two-step framework where,

as here, all relevant conduct takes place outside the United

States. To support this proposition, they rely on the Supreme

Court’s statement in RJR Nabisco that “[b]ecause ‘all the

relevant conduct’ regarding those violations ‘took place

outside the United States,’ we did not need to determine . . .

the statute’s ‘focus.’” 136 S. Ct. at 2101 (citation omitted)

(quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,

124 (2013)). The Gonzalez Plaintiffs misread RJR Nabisco. 

The passage they rely upon explained only that, on the facts

of Kiobel, an inquiry into the focus of the statute was
GONZALEZ V. GOOGLE 27

unnecessary because all the relevant conduct was foreign. 

Id.7

The Gonzalez Plaintiffs next argue that even if the RJR

Nabisco framework is applied, the framework demonstrates

that the their claims involve an extraterritorial application of

§ 230. Again, we are not persuaded.

RJR Nabisco requires that we begin by asking whether the

statute “gives a clear, affirmative indication that it applies

extraterritorially.” 136 S. Ct. at 2101. Neither party

identifies any indication that Congress intended § 230 to

apply extraterritorially, so we proceed to step two.

At step two, to determine whether claims involve a

domestic application of the statute, we must identify “the

statute’s focus.” Id. A statute’s focus is “the object of its

solicitude, which can include the conduct it seeks to regulate,

as well as the parties and interests it seeks to protect or

vindicate.” WesternGeco, 138 S. Ct. at 2137 (internal

quotations and alterations omitted). “If the conduct relevant

to the statute’s focus occurred in the United States . . . , then

7 Google separately argues that because § 230 does not directly

regulate conduct, extraterritoriality principles are not implicated at all. 

The Ninth Circuit addressed a similar situation in a pre-RJR Nabisco case. 

See Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008). 

There, our court concluded that the General Aviation Revitalization Act’s

statute of repose did not “impermissibly regulate conduct that ha[d]

occurred abroad.” Id. at 953. Instead, the statute “merely eliminate[d] the

power of any party to bring a suit for damages . . . after the limitation

period.” Id. “Accordingly, the presumption against extraterritoriality

simply [was] not implicated . . . .” Id. Because we conclude this case

does not involve an impermissibly extraterritorial application of law under

the RJR Nabisco framework, we need not decide the applicability of

Blazevska. See also Force, 934 F.3d at 74.
28 GONZALEZ V. GOOGLE

the case involves a permissible domestic application of the

statute.” Id. at 2136 (internal quotation marks omitted)

(quoting RJR Nabisco, 136 S. Ct. at 2101).

The object of § 230(c)(1)’s solicitude is to encourage

providers of interactive computer services to monitor their

websites by limiting liability. Force, 934 F.3d at 74

(concluding § 230’s “primary purpose is limiting civil

liability in American courts”). Section 230 “immunizes

providers of interactive computer services against liability

arising from content created by third parties.” Roommates,

521 F.3d at 1162 (footnote omitted); see also Barnes,

570 F.3d at 1100 (observing § 230(c)(1) “precludes

liability”). This limitation of liability had the dual purposes

of “promot[ing] the free exchange of information and ideas

over the Internet and . . . encourag[ing] voluntary monitoring

for offensive or obscene material.” Carafano, 339 F.3d 1122. 

Because the focus of § 230(c)(1) is limiting liability, the

conduct relevant to the statute’s focus occurs at the location

associated with the imposition of liability. RJR Nabisco,

136 S. Ct. at 2101.

In other words, because § 230(c)(1) focuses on limiting

liability, the relevant conduct occurs where immunity is

imposed, which is where Congress intended the limitation of

liability to have an effect, rather than the place where the

claims principally arose. As such, the conduct relevant to

§ 230’s focus is entirely within the United States—i.e., at the

situs of this litigation. See Force, 934 F.3d at 74 (“The

regulated conduct—the litigation of civil claims in federal

courts—occurs entirely domestically in its application

here.”). We therefore conclude the Gonzalez Plaintiffs’

claims involve a domestic application of § 230.
GONZALEZ V. GOOGLE 29

C

The Gonzalez Plaintiffs also argue that § 230 immunity

does not shield liability arising from violations of the ATA

because § 230 was impliedly repealed. Specifically, they

contend that when Congress amended the ATA in 2016 by

enacting JASTA, it impliedly repealed § 230. In support of

this argument, the Gonzalez Plaintiffs rely on JASTA’s

statement of purpose, which explains that the aim of the

amendment was “to provide civil litigants with the broadest

possible basis, consistent with the Constitution of the United

States, to seek relief” for acts of international terrorism. 

JASTA § 2(b) (emphasis added). As explained, JASTA

altered the ATA by adding, among other things, secondary

liability. See 18 U.S.C. § 2333(d). Despite its broad purpose,

JASTA did not impliedly repeal § 230.

“[A]bsent a clearly expressed congressional intention,

repeals by implication are not favored.” Branch v. Smith,

538 U.S. 254, 273 (2003) (internal quotation marks and

citations omitted). “An implied repeal will only be found

where provisions in two statutes are in ‘irreconcilable

conflict,’ or where the latter Act covers the whole subject of

the earlier one and ‘is clearly intended as a substitute.’” Id.

(quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503

(1936)). “Irreconcilable conflict occurs if ‘there is a positive

repugnancy’ between competing provisions or if those

provisions cannot ‘mutually co-exist.’” King v. Blue Cross

& Blue Shield of Ill., 871 F.3d 730, 740 (9th Cir. 2017)

(quoting Radzanower v. Touche Ross & Co., 426 U.S. 148,

155 (1976)). “[W]hen two statutes are capable of coexistence, it is the duty of the courts . . . to regard each as

effective.” Id. (alterations in original) (quoting Radzanower,

426 U.S. at 155).
30 GONZALEZ V. GOOGLE

To determine whether JASTA had any effect on the

application of § 230, we start by examining the statutory

language, and not—as the Gonzalez Plaintiffs

urge—JASTA’s statement of purpose. Preambles and

prefatory language are insufficient to alter the substance of

the phrases they precede, even when codified. See, e.g.,

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,

1978 (2016) (observing that the “clause announc[ing] an

objective . . . [did] not change the plain meaning of the

operative clause”). The Gonzalez Plaintiffs do not identify

any substantive provision of JASTA that conflicts with § 230. 

As we have recognized, § 230 protects from liability only a

specific class of defendants facing a particular type of

claim—i.e., it protects providers and users of interactive

computer services from claims seeking to treat them as

publishers or speakers of information provided by others. See

Barnes, 570 F.3d at 1100–01; see also § 230(c)(1). Thus, by

its own terms, § 230 creates “an affirmative defense to

liability under Section 2333 [of the ATA] for only the narrow

set of defendants and conduct to which Section 230 applies.” 

Force, 934 F.3d at 72. There is no provision of JASTA to the

contrary. JASTA expanded the scope of § 2333 liability for

acts of international terrorism, see 18 U.S.C. § 2333(d), but

it did not modify or repeal § 230 immunity, Force, 934 F.3d

at 72 (“JASTA merely expanded Section 2333’s cause of

action to secondary liability; it provides no obstacle . . . to

applying Section 230”).

Accordingly, JASTA and § 230(c)(1) can both be

enforced without contradicting the other, or depriving the

other of “any meaning at all.” Radzanower, 426 U.S. at 153

(quoting T. Sedgwick, The Interpretation of Statutory and

Constitutional Law 98 (2d ed. 1874)). Courts have “not

hesitated to give effect to two statutes that overlap, so long as
GONZALEZ V. GOOGLE 31

each reaches some distinct cases.” J.E.M. Ag Supply, Inc. v.

Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144 (2001). Under

the Gonzalez Plaintiffs’ reading of JASTA, any liabilityimposing statute enacted after § 230 would have to be

construed to limit § 230 immunity. Such a reading runs

directly contrary to the presumption against finding implied

repeal. For these reasons, we conclude JASTA did not

impliedly repeal § 230.

D

Finally, the Gonzalez Plaintiffs argue that § 230 immunity

can never apply to ATA claims because the ATA permits

private civil enforcement of counter-terrorism provisions that

otherwise give rise to criminal liability, and § 230(e)(1)

includes an exception providing that “[n]othing in this section

shall be construed to impair the enforcement of . . . any . . .

Federal criminal statute.” 47 U.S.C. § 230(e)(1). Google

responds that the exception in § 230(e)(1) extends only to

criminal prosecutions, not to actions for civil damages like

this one. On this point, Google has the better argument.

Courts have consistently held that § 230(e)(1)’s limitation

on § 230 immunity extends only to criminal prosecutions, and

not to civil actions based on criminal statutes. For example,

the First Circuit concluded that a civil remedy provision in

the Trafficking Victims Protection Reauthorization Act,

which allowed victims to bring suit against perpetrators of

sex trafficking, did not fall within the § 230(e)(1) exception. 

Doe v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. 2016). 

The court principally relied on the meaning of the statutory

phrase “enforcement of . . . any . . . Federal criminal statute,”

which excludes civil statutes, but also reasoned that any

ambiguity in the subsection’s text was resolved by its title,
32 GONZALEZ V. GOOGLE

“[n]o effect on criminal law,” id. (alteration in original),

because this language “indicate[d] that the provision [was]

limited to criminal prosecutions,” id. The Second Circuit

recently agreed with this analysis when it considered the

application of § 230 to ATA claims. See Force, 934 F.3d

at 72 (“We . . . join the First Circuit in concluding that

Section 230(e)(1) is ‘quite clearly . . . limited to criminal

prosecutions.’” (second alteration in original) (quoting

Backpage.com, 817 F.3d at 23)). We agree with the First and

Second Circuits, and hold that § 230(e)(1) is limited to

criminal prosecutions. Accordingly, § 230(e)(1) does not

preclude the application of § 230(c)(1) immunity.

E

Having concluded that the Gonzalez Plaintiffs’ claims are

not categorically excluded from the reach of § 230 immunity,

we next consider the application of § 230 to the Gonzalez

TAC. The Gonzalez Plaintiffs argue that the immunity

afforded by § 230 does not bar their claims because § 230

immunizes only those who publish content created by third

parties, and their claims are directed to content created by

Google. Google responds that the content the TAC

challenges was indeed created by third parties—presumably,

ISIS—and that the Gonzalez Plaintiffs’ claims impermissibly

seek to treat Google as a publisher of that content. We affirm

the district court’s ruling that § 230 bars all of the TAC’s

claims except to the extent the TAC presents claims premised

on the allegation that Google shared advertising revenue with

ISIS.8

8 The Gonzalez Plaintiffs also argue that it was improper for the

district court to consider the application of § 230 on a motion to dismiss. 

We disagree. “Whether a particular ground for opposing a claim may be
GONZALEZ V. GOOGLE 33

Section 230(c)(1) precludes liability for “(1) a provider or

user of an interactive computer service (2) whom a plaintiff

seeks to treat . . . as a publisher or speaker (3) of information

provided by another information content provider.”9 Barnes,

570 F.3d at 1100–01 (footnote omitted). We first address the

Gonzalez Plaintiffs’ theories of liability that are not directed

to revenue-sharing, considering each element of § 230

separately.

1

As to the first element of § 230, the parties do not dispute

that Google is an “interactive computer service” provider as

defined in 47 U.S.C. § 230(f)(2). We agree. Roommates,

521 F.3d at 1162 n.6 (“[T]he most common interactive

computer services are websites.”); see also Kimzey v. Yelp!,

Inc., 836 F.3d 1263, 1268 (9th Cir. 2016) (“Yelp is plainly a

provider of an ‘interactive computer service’ . . . , a term that

the basis for dismissal for failure to state a claim depends on whether the

allegations in the complaint suffice to establish that ground.” Jones v.

Bock, 549 U.S. 199, 215 (2007). Here, “the ‘allegations in the complaint

suffice to establish’ the defense,” and thus the “affirmative defense may

be considered properly.” Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th

Cir. 2013) (quoting Jones, 549 U.S. at 215); see also Ricci v. Teamsters

Union Local 456, 781 F.3d 25, 27 (2d Cir. 2015) (per curiam) (considering

whether § 230 immunity barred plaintiffs’ claims on a 12(b)(6) motion to

dismiss).

9 Barnes limited its summary of § 230(c)(1) eligibility requirements

to instances where “plaintiff[s] seeks to treat [the defendant], under a state

law cause of action, as a publisher or speaker” because that case only

concerned state law claims. 570 F.3d at 1100 (emphasis added). In

Roommates, we acknowledged that § 230 immunity is not limited to cases

in which plaintiffs assert state law claims. 521 F.3d at 1164; see also

Barnes, 570 F.3d at 1100 n.4.
34 GONZALEZ V. GOOGLE

we interpret expansively under the CDA.” (quotations and

alterations omitted)).

2

As to the second element, the Gonzalez Plaintiffs argue

their claims do not inherently require a court to treat Google

as a publisher or speaker. Google responds that the thrust of

the Gonzalez Plaintiffs’ claims is that Google did not do

enough to block or remove content, and that such claims

necessarily require the court to treat Google as a publisher. 

On this point, we agree with Google.

What matters when we assess this element is “whether the

cause of action inherently requires the court to treat the

defendant as the ‘publisher or speaker’ of content provided by

another.” Barnes, 570 F.3d at 1102. This element is satisfied

when “the duty that the plaintiff alleges the defendant

violated derives from the defendant’s status or conduct as a

‘publisher or speaker.’” Id.

The Gonzalez Plaintiffs argue that their claims do not

treat Google as a publisher, but instead assert a simple “duty

not to support terrorists.” They maintain that just as the ATA

prohibits a retailer like Wal-Mart “from supplying fertilizer,

knives, or even food to ISIS,” the ATA prohibits Google from

supplying ISIS with a communication platform. The

Gonzalez Plaintiffs’ characterization of their claim as

asserting a “duty not to support terrorists” overlooks that

publication itself is the form of support Google allegedly

provided to ISIS. See Force, 934 F.3d at 65 (recognizing that

supplying a platform and communication services “falls

within the heartland of what it means to be the ‘publisher’ of

information under Section 230(c)(1)”). The Plaintiffs’ non-
GONZALEZ V. GOOGLE 35

revenue sharing claims seek to impose liability for the content

Google allowed to be posted on its platform.

Publishing encompasses “any activity that can be boiled

down to deciding whether to exclude material that third

parties seek to post online . . . .” Roommates, 521 F.3d at

1170–71. “[P]ublication involves reviewing, editing, and

deciding whether to publish or to withdraw from publication

third-party content.” Barnes, 570 F.3d at 1102; see also

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

2014) (“[T]he very essence of publishing is making the

decision whether to print or retract a given piece of content

. . . .”). Here, the Gonzalez Plaintiffs assert that Google failed

to prevent ISIS from using its platform, and thereby allowed

ISIS to disseminate its message of terror. Because the nonrevenue sharing claims seek to impose liability for allowing

ISIS to place content on the YouTube platform, they seek to

treat Google as a publisher. 

3

The Gonzalez Plaintiffs argue that Google does more than

merely republish content created by third parties; the TAC

alleges that Google “creat[es]” and “develop[s]” the ISIS

content that appears on YouTube, at least in part, and

therefore receives no protection under § 230. Again, we

disagree. This argument is precluded by this court’s § 230

precedents.

The Gonzalez Plaintiffs are correct that § 230 immunity

only applies to the extent interactive computer service

providers do not also provide the challenged information

content. Roommates, 521 F.3d at 1162–63; see also

Carafano, 339 F.3d at 1123. An “information content
36 GONZALEZ V. GOOGLE

provider” is defined as “any person or entity that is

responsible, in whole or in part, for the creation or

development of information provided through the Internet or

any other interactive computer service.” 47 U.S.C.

§ 230(f)(3) (emphasis added).

We have held that a website that “creat[es] or develop[s]”

content “by making a material contribution to [its] creation or

development” loses § 230 immunity. Kimzey, 836 F.3d

at 1269. A “material contribution” does not refer to “merely

. . . augmenting the content generally, but to materially

contributing to its alleged unlawfulness.” Roommates,

521 F.3d at 1167–68 (emphasis added). This test “draw[s]

the line at the ‘crucial distinction between, on the one hand,

taking actions” to display “actionable content and, on the

other hand, responsibility for what makes the displayed

content [itself] illegal or actionable.” Kimzey, 836 F.3d at

1269 n.4 (internal quotation marks omitted) (quoting Jones v.

Dirty World Ent. Recordings LLC, 755 F.3d 398, 413–14 (6th

Cir. 2014)). Other circuits have adopted this “material

contribution” test, acknowledging that making a material

contribution does not mean “merely taking action that is

necessary to the display of the allegedly illegal content,” but

rather, “being responsible for what makes the displayed

content allegedly unlawful.” Dirty World Ent., 755 F.3d

at 410; see also, e.g., FTC v. LeadClick Media, LLC, 838 F.3d

158, 176 (2d Cir. 2016); Klayman, 753 F.3d at 1358; Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

257–58 (4th Cir. 2009); FTC v. Accusearch Inc., 570 F.3d

1187, 1197–1201 (10th Cir. 2009). Absent this sort of

“material contribution,” Google does not qualify as an
GONZALEZ V. GOOGLE 37

“information content provider,” and may be eligible for § 230

immunity. See Kimzey, 836 F.3d at 1269–70.10

Plainly, an interactive computer service does not create or

develop content by merely providing the public with access

to its platform. A “website does not create or develop content

when it merely provides a neutral means by which third

parties can post information of their own independent

choosing online.” Kimzey, 836 F.3d at 1270 (quoting

Klayman, 753 F.3d at 1358). Thus, in Kimzey, we concluded

that a provider does not create or develop content when its

website “does ‘absolutely nothing to enhance the defamatory

sting of the message’ beyond the words offered by the [thirdparty] user.” Id. (quoting Roommates, 521 F.3d at 1172).

The Gonzalez Plaintiffs concede that Google did not

initially create any ISIS videos, but allege that Google creates

the “mosaics” by which that content is delivered. According

to the Gonzalez TAC, Google makes a material contribution

to the unlawfulness of ISIS content by pairing it with selected

advertising and other videos because “pairing” enhances user

engagement with the underlying content. Our case law

forecloses the argument that this type of pairing vitiates § 230

immunity.

10 The Gonzalez Plaintiffs argue in passing that the district court erred

by “conflat[ing]” the definitions of “creation” and “development” in

§ 230(f)(3). According to the Gonzalez Plaintiffs, because Roommates

described its “material contribution” test in the context of construing

“development,” it “has nothing to do with the definition of ‘creation.’” 

Whatever the distinction between creation and development, our case law

makes clear that an entity that does not materially contribute to the alleged

unlawfulness of the content is neither a creator nor a developer for

purposes of § 230(f)(3). See Kimzey, 836 F.3d at 1269–70.
38 GONZALEZ V. GOOGLE

In Roommates, we recognized that a website is not

transformed into a content creator or developer by virtue of

supplying “neutral tools” that deliver content in response to

user inputs. See 521 F.3d at 1171; see also id. at 1169;

Kimzey, 836 F.3d at 1270. Roommates relied on our earlier

decision in Carafano, which concerned a prankster’s

unauthorized creation of a libelous profile impersonating

actress Christianne Carafano on an online dating site. 

Roommates, 521 F.3d at 1171; see also Carafano, 339 F.3d

at 1121–22. Carafano sued the online dating site for invasion

of privacy, misappropriation of the right of publicity,

defamation, and negligence. Carafano, 339 F.3d at 1121–22.

We determined that the dating website in Carafano

“provided neutral tools specifically designed to match

romantic partners depending on their voluntary inputs.” 

Roommates, 521 F.3d at 1172. The website was not

transformed into the creator or developer of libelous content

contained in users’ dating profiles, even though its

matchmaking functionality allowed that content to be more

effectively disseminated. See id. Carafano held that the

dating website’s “decision to structure the information

provided by users [in order to] . . . offer additional features,

such as ‘matching’ profiles with similar characteristics” was

consistent with § 230 immunity. 339 F.3d at 1124–25. “[S]o

long as a third party willingly provides the essential published

content, the interactive [computer] service provider receives

full immunity regardless of the specific editing or selection

process.” Id. at 1124.

Critically, Carafano’s “neutral tools” were neutral

because the website did not “encourage the posting of

defamatory content” by merely providing a means for users

to publish the profiles they created. Roommates, 521 F.3d at
GONZALEZ V. GOOGLE 39

1171. “[I]ndeed, the defamatory posting was contrary to the

website’s express policies.” Id.

In contrast, the defendant in Roommates operated a

website for matching renters with prospective tenants that did

contribute to the alleged illegality. Before users could search

listings or post housing opportunities, the website required

them to create profiles. Id. at 1161. To do so, users were

directed through a series of questions to disclose their sex,

sexual orientation, and whether they had children. Id. They

were also required to describe their preferred renter or tenant

with respect to these same three criteria, and encouraged to

“provide ‘Additional Comments’ describing themselves and

their desired roommate in an open-ended essay.” Id.

The plaintiffs in Roommates alleged that the website

operator violated federal and state laws barring discrimination

in housing. Id. at 1162. The defendant website operator

argued that it was entitled to § 230 immunity. Id. Our en

banc court concluded the website—by requiring users to

disclose their sex, sexual orientation, whether they had

children, and the traits they preferred in their roommate—was

designed to encourage users to post content that violated fair

housing laws. Id. at 1161, 1164–66. “By requiring

subscribers to provide the information as a condition of

accessing its service,” and requiring subscribers to choose

between “a limited set of pre-populated answers” the website

became “much more than a passive transmitter,” and instead

became “the developer, at least in part, of that information.” 

Id. at 1166. The Roommates website did not employ “neutral

tools”; it required users to input discriminatory content as a

prerequisite to accessing its tenant-landlord matching service. 

See id. at 1169. The website therefore lost its § 230 immunity

with respect to the discriminatory content it prompted, but it
40 GONZALEZ V. GOOGLE

retained immunity for generically asking users to provide

“Additional Comments” without telling them “what kind of

information they should or must include.” Id. at 1174.

We recently revisited the scope of § 230 immunity in

Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093 (9th

Cir. 2019). There, an online messaging board called the

Experience Project allowed users to share first-person

experiences, post and answer questions, and interact with

other users about various topics. Id. at 1094. A user named

Wesley Greer posted an inquiry about opportunities to buy

heroin, and received a response from another user. Id. at

1095. A day after meeting up with the responder, Greer died

because the heroin he purchased had been laced with

fentanyl. Id. Greer’s mother filed suit against the website

operator, and the website moved to dismiss based on § 230

immunity. Id. at 1095–96.

The plaintiff in Dyroff argued that the website created and

developed online content because the website “used features

and functions, including algorithms, to analyze user posts . . .

and recommend other user groups.” Id. at 1098. We

concluded “[t]hese functions—recommendations and

notifications—[were] tools meant to facilitate the

communication and content of others,” and “not content in

and of themselves.” Id. The message board in Dyroff

employed neutral tools similar to the ones challenged by the

Gonzalez Plaintiffs. Though we accept as true the TAC’s

allegation that Google’s algorithms recommend ISIS content

to users, the algorithms do not treat ISIS-created content

differently than any other third-party created content, and

thus are entitled to § 230 immunity. Id.; see also Roommates,

521 F.3d at 1171–72; Carafano, 339 F.3d at 1124.
GONZALEZ V. GOOGLE 41

We conclude the TAC does not allege that Google’s

YouTube service is materially distinguishable from the

matchmaking website at issue in Carafano or the algorithms

employed by the message board in Dyroff. It alleges that

Google recommends content—including ISIS videos—to

users based upon users’ viewing history and what is known

about the users. The Gonzalez Plaintiffs allege that Google

similarly targets users for advertising based on the content

they have selected and other information about users. In this

way, a user’s voluntary actions inform Google about that

user’s preferences for the types of videos and advertisements

the user would like to see. Rather than suggesting matches

for dating, Google matches what it knows about users based

on their historical actions and sends third-party content to

users that Google anticipates they will prefer. This system is

certainly more sophisticated than a traditional search engine,

which requires users to type in textual queries, but the core

principle is the same: Google’s algorithms select the

particular content provided to a user based on that user’s

inputs. See Roommates, 521 F.3d at 1175 (observing that

search engines are immune under § 230 because they provide

content in response to a user’s queries “with no direct

encouragement to perform illegal searches or to publish

illegal content”).

The Gonzalez complaint is devoid of any allegations that

Google specifically targeted ISIS content, or designed its

website to encourage videos that further the terrorist group’s

mission. Instead, the Gonzalez Plaintiffs’ allegations suggest

that Google provided a neutral platform that did not specify

or prompt the type of content to be submitted, nor determine

particular types of content its algorithms would promote. The

Gonzalez Plaintiffs concede Google’s policies expressly

prohibited the content at issue. See id. at 1171. Accordingly,
42 GONZALEZ V. GOOGLE

the type of algorithm challenged here, without more, is

indistinguishable from the one in Dyroff and it does not

deprive Google of § 230 immunity.

We are not alone in reaching this conclusion. In a case

involving allegations that Facebook unlawfully provided a

communications platform to Hamas in violation of the ATA,

the Second Circuit concluded that Facebook was entitled to

§ 230 immunity. Force, 934 F.3d at 64–72. The plaintiffs in

Force, surviving family members of victims allegedly

murdered by Hamas, sought to treat Facebook as a publisher

of third-party information, even where “it use[d] tools such as

algorithms that [were] designed to match that [third-party]

information with a consumer’s interests.” Id. at 66. The

Second Circuit recognized that Facebook’s algorithms may

have made content more visible or available, but held this did

not amount to developing the underlying information. Id. at

70. Force further observed that since the early days of the

Internet, websites “have always decided . . . where on their

sites . . . particular third-party content should reside and to

whom it should be shown” but no case law denies § 230

immunity “because of the ‘matchmaking’ results of such

editorial decisions.” Id. at 66–67. Our precedent requires

that we reach the same outcome and we hold, consistent with

our case law, that Google is entitled to § 230 immunity with

respect to the Gonzalez Plaintiffs’ theories of liability that are

not directed to revenue-sharing.

Our dissenting colleague argues § 230 should not

immunize Google from liability for the claims related to its

algorithms, which the dissent characterizes as amplifying and

contributing to ISIS’s originally posted content. The dissent

shares the views expressed by the partial concurrence and
GONZALEZ V. GOOGLE 43

dissent in Force. 934 F.3d at 76–89 (Katzmann, C.J.,

concurring in part, dissenting in part).

As explained, Force also arose fromterrorist attacks. The

Force plaintiffs alleged that “Facebook collect[ed] detailed

information about its users” and Facebook’s algorithms

“utilize[d] the collected data to suggest friends, groups,

products, services and local events, and [to] target ads based

on each user’s input.” Id. at 82 (internal quotation marks

omitted).

For two reasons, the partial dissent in Force argued that

Facebook’s friend- and content-suggestion algorithms created

new content, and thus Facebook was not entitled to § 230

immunity. Id. First, the partial dissent reasoned that

Facebook’s algorithms communicated their own

message—i.e., the algorithms suggested the user would likely

be interested in certain additional content. Id. Second,

Facebook’s friend- and content-suggestion algorithms created

and maintained “real-world social networks.” Id.

Citing our circuit’s decision in Roommates, the partial

dissent in Force reasoned that suggestions generated by

Facebook’s algorithms based on users’ shared interest in

terrorism “directly related to the alleged illegality of the site,”

and therefore Facebook went beyond the role of a mere

publisher. Id. at 82–83. Respectfully, this is not a correct

reading of Roommates. The Roommates website required

users to identify themselves by sex, sexual orientation, and

whether they had children, then directed users to describe

their preferred tenant or landlord using pre-populated answers

concerning the same criteria. 521 F.3d at 1161, 1169–70. In

this way, the website prompted discriminatory responses that

violated fair housing laws. Id. at 1169–70. Because the
44 GONZALEZ V. GOOGLE

website itself generated the options for selecting a tenant or

landlord based on discriminatory criteria, our en banc court

concluded the website materially contributed to the

unlawfulness of the posted content. Id.

As we have explained, Google’s algorithms function like

traditional search engines that select particular content for

users based on user inputs. See Roommates, 521 F.3d at 1175

(observing search engines are entitled to § 230 immunity

because they provide content in response to users’ inquires

“with no direct encouragement to perform illegal searches or

to publish illegal content”). The TAC does not allege that

Google’s algorithms prompted ISIS to post unlawful content. 

Nor does the TAC allege that Google’s algorithms treated

ISIS-created content differently than any other third-party

created content. See id. at 1171–72. Contrary to the dissent’s

assertion, we do not hold that “machine-learning algorithms

can never produce content within the meaning of Section

230.” We only reiterate that a website’s use of contentneutral algorithms, without more, does not expose it to

liability for content posted by a third-party. Under our

existing case law, § 230 requires this result.

The dissent concedes algorithms can be neutral, but it

argues § 230 immunity should not apply when the published

“message itself is the danger.” But this is not where Congress

drew the line. At the time Congress enacted § 230, many

considered it “impossible for service providers to screen each

of their millions of postings for possible problems.” 

Carafano, 339 F.3d at 1124 (emphasis added) (quoting

Zeran, 129 F.3d at 330–31). Against this backdrop, Congress

did not differentiate dangerous, criminal, or obscene content

from innocuous content when it drafted § 230(c)(1). Instead,

it broadly mandated that “[n]o provider . . . of an interactive
GONZALEZ V. GOOGLE 45

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) (emphasis added).

We share the dissent’s concerns about the breadth of

§ 230. As the dissent observes, “there is a rising chorus of

judicial voices cautioning against an overbroad reading of the

scope of Section 230 immunity,” and the feasibility of

screening for dangerous content is being revisited. For

example, websites are leveraging new technologies to detect,

flag, and remove large volumes of criminal content such as

child pornography.11In light of the demonstrated ability to

detect and isolate at least some dangerous content, Congress

may well decide that more regulation is needed. In the

meantime, our decision does not extend what the dissent

rightly describes as § 230’s sweeping scope.

11 According to the Department of Justice, “the vast majority of

[National Center for Missing & Exploited Children (NCMEC)] reports

come from direct messaging services and are usually generated as a result

of platforms’ use of automated hashing measures (such as PhotoDNA),

grooming indicators, artificial intelligence and other technologies to

identify and report child sexual abuse material.” DOJ Office of Public

Affairs, Acting AG and Five Country Statement on the Temporary

Derogation to the ePrivacy Directive toCombat Child Sexual Exploitation

and Abuse, United States Department of Justice (Jan. 12, 2021),

https://www.justice.gov/opa/pr/acting-ag-and-five-country-statement-te

mporary-derogation-eprivacy-directive-combat-child. Facebook reports

that “[i]n addition to photo-matching technology, [Facebook is] using

artificial intelligence and machine learning to proactively detect child

nudity and previously unknown child exploitative content when it’s

uploaded” and to report it to NCMEC. See Antigone Davis, New

Technology to Fight Child Exploitation, Facebook (Oct. 24, 2018),

https://about.fb.com/news/2018/10/fighting-child-exploitation.
46 GONZALEZ V. GOOGLE

In his partial concurrence and partial dissent in Force,

Chief Judge Katzmann provided a thorough analysis of

§ 230’s legislative history. Force, 934 F.3d at 77–80

(Katzmann, C.J., concurring in part and dissenting in part). 

The Force partial dissent persuasively explains that when it

enacted § 230, “Congress was focused squarely on protecting

minors from offensive online material” and sought to

“provide[] ‘Good Samaritan’ protections from civil liability

for providers or users of an interactive computer service.” Id.

at 79–80 (quoting S. Rep. No. 104-230, at 194 (1996) (Conf.

Rep.)). Despite this clear goal, the language Congress

adopted in § 230(c)(1) cuts a much wider swath. Id.

(“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.’”). Chief Judge

Katzmann urged his colleagues to conclude § 230(c)(1) need

not be interpreted to immunize websites’ friend- and contentsuggestion algorithms, but as we explain, Ninth Circuit case

law forecloses his argument.

In sum, though we agree the Internet has grown into a

sophisticated and powerful global engine the drafters of § 230

could not have foreseen, the decision we reach is dictated by

the fact that we are not writing on a blank slate. Congress

affirmatively immunized interactive computer service

providers that publish the speech or content of others.12

12 The dissent would create a new federal common law cause of action

treating social media companies as makers and sellers of products through

forced advertising, thereby circumventing § 230’s expansive immunity. 

Even if we agree Congress should act to narrow the scope of § 230

immunity or regulate the use of neutral algorithms, we are not free to

manufacture entirely new causes of action merely because the political

branches have not acted. The Supreme Court has explained “[t]he vesting
GONZALEZ V. GOOGLE 47

F

The Gonzalez Plaintiffs’ revenue-sharing theory is

distinct from the other theories of liability raised in the TAC. 

This theory is premised on the allegation that because it

shared advertising revenue with ISIS, Google should be held

directly liable for providing material support to ISIS pursuant

to § 2333(a) and secondarily liable for providing substantial

assistance to ISIS pursuant to § 2333(d). The district court’s

order excluded the Gonzalez Plaintiffs’ revenue-sharing

claims from its application of § 230. On appeal, Google does

not separately respond to the Gonzalez Plaintiffs’ revenuesharing claims. Instead, Google lumps all of the TAC’s

theories together for purposes of its § 230 argument. Based

on our review of case law, the question whether § 230

immunizes an interactive computer service provider’s

revenue-sharing payments appears to be one of first

impression for the courts of appeal. We conclude that § 230

does not immunize Google from the claims premised on

revenue-sharing.

Plaintiffs allege that Google generates revenue by selling

advertising space through its AdSense program, including

advertising space that appears on YouTube. Through

AdSense, Google sells advertising opportunities and displays

advertisements to YouTube viewers accessing other content. 

Google targets advertisements based on the content of the

of jurisdiction in the federal courts does not in and of itself give rise to

authority to formulate federal common law . . . nor does the existence of

congressional authority under Art. I mean that federal courts are free to

develop a common law to govern those areas until Congress acts.” Texas

Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–41 (1981)

(internal citation omitted).
48 GONZALEZ V. GOOGLE

advertisements, what is known about the viewer, and the

content of the posted video. If a YouTube user elects to

participate in the AdSense program, Google shares with the

user a portion of the revenue generated by the advertisements

on the user’s videos. For example, suppose a user

participating in the AdSense program posts a video tutorial

about proper house-painting techniques. In this scenario,

viewers of the video tutorial might see advertisements for

paint or paintbrushes, and Google would share a portion of

the resulting ad revenue with the user that posted the video

tutorial.

The Gonzalez Plaintiffs allege that “each YouTube video

must be reviewed and approved by Google before Google

will permit advertisements to be placed with that video,” and

that “Google has reviewed and approved ISIS videos” for

advertising. The Gonzalez Plaintiffs also allege that, because

it approved ISIS videos for the AdSense program, Google

shared a percentage of revenues generated from those

advertisements with ISIS.

We have explained that § 230 grants immunity from

claims seeking to hold providers of interactive computer

services liable as publishers or speakers of third-party

content. The Gonzalez Plaintiffs’ revenue-sharing allegations

are not directed to the publication of third-party information. 

These allegations are premised on Google providing ISIS

with material support by giving ISIS money. Thus, unlike the

Gonzalez Plaintiffs’ other allegations, the revenue-sharing

theory does not depend on the particular content ISIS places

on YouTube; this theory is solely directed to Google’s

unlawful payments of money to ISIS.
GONZALEZ V. GOOGLE 49

It is well settled that § 230 “bars only liability that treats

a website as a publisher or speaker of content provided by

somebody else.” Internet Brands, 824 F.3d at 851. Perhaps

the best indication that the Gonzalez Plaintiffs’ revenuesharing allegations are not directed to any third-party content

is that Google’s alleged violation of the ATA could be

remedied without changing any of the content posted by

YouTube’s users. See id.; see also HomeAway.com, Inc. v.

City of Santa Monica, 918 F.3d 676, 683 (9th Cir. 2019)

(concluding that a city ordinance that did “not proscribe,

mandate, or even discuss the content of the listings that the

[plaintiffs] display[ed] on their websites” fell outside the

scope of immunity provided by § 230). The Gonzalez

Plaintiffs’ allegations of revenue-sharing do not seek to hold

Google liable for any content provided by a third-party. 

Accordingly, we conclude that § 230 does not bar the

Gonzalez Plaintiffs’ claims premised on sharing revenue with

ISIS.13

IV

Having concluded that § 230 only immunizes Google

from liability for all of the Gonzalez Plaintiffs’ non-revenue

sharing claims, we next address whether, based on the TAC’s

revenue-sharing theory, the Gonzalez Plaintiffs’ adequately

allege claims for direct liability and secondary liability under

the ATA. We address the direct liability claims first.

13 The district court dismissed the revenue-sharing claims without

prejudice for failure to adequately allege proximate cause. The Gonzalez

Plaintiffs chose not to amend, and a final judgment was subsequently

entered on that basis.
50 GONZALEZ V. GOOGLE

The civil remedies provision of the ATA, 18 U.S.C.

§ 2333(a), “allows any United States national ‘injured in his

or her person, property, or business by reason of an act of

international terrorism, or his or her estate, survivors or

heirs,’ to sue in federal court and recover treble damages and

attorney’s fees.” Fields, 881 F.3d at 743 (quoting § 2333(a)). 

It is undisputed that the Gonzalez Plaintiffs, Taamneh

Plaintiffs, andClayborn Plaintiffs are United States nationals.

The ATA includes several criminal provisions, “the

violation of which can provide the basis for a cause of action

under § 2333(a).” Id. The Gonzalez Plaintiffs argue that

Google directly committed acts of international terrorism by

providing material support for terrorism, providing material

support for foreign terrorist organizations, and financing

terrorism in violation of sections 2339A(a), 2339B(a)(1), and

2339C(c), respectively. They also allege that Google violated

Executive Order No. 13224, 31 C.F.R. Part 594, and

50 U.S.C. § 1705.

Section 2333(a) is directed to “act[s] of international

terrorism.” “[I]nternational terrorism” is statutorily defined

in 18 U.S.C. § 2331(1). See generally Fields, 881 F.3d at 743

n.3; Linde v. Arab Bank, PLC, 882 F.3d 314, 326–27 (2d Cir.

2018). Acts constituting international terrorismmust “appear

to be intended—(i) to intimidate or coerce a civilian

population; (ii) to influence the policy of a government by

intimidation or coercion; or (iii) to affect the conduct of a

government by mass destruction, assassination, or

kidnapping.” Id. § 2331(1)(B).

The operative Gonzalez complaint contends that Google’s

conduct qualified as an act of “international terrorism,” citing

§ 2331(1). We conclude their complaint fails to plausibly
GONZALEZ V. GOOGLE 51

allege that Google directly perpetrated an act of international

terrorism as required by § 2331(1)(B).

Whether an act appears to be intended to intimidate or

coerce a civilian population or to influence or affect a

government, “does not depend on the actor’s beliefs, but

imposes on the actor an objective standard to recognize the

apparent intentions of actions.” Weiss v. Nat’l Westminster

Bank PLC, 768 F.3d 202, 207 n.6 (2d Cir. 2014); see also

Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685,

694 (7th Cir. 2008) (en banc) (“[I]t is a matter of external

appearance rather than subjective intent, which is internal to

the intender.”).

The Gonzalez Plaintiffs argue that the knowing provision

of resources to a terrorist organization necessarily constitutes

“international terrorism,” and satisfies the requirements

identified in § 2331(1)(B). We disagree. Nothing in the

statutory scheme suggests that material support always

qualifies as international terrorism because such conduct may

or may not objectively appear to be intended to intimidate or

coerce. Medical assistance rendered to known terrorists by

Doctors Without Borders illustrates this point. See Boim,

549 F.3d at 699. Such assistance might arguably provide

material support to terrorists in violation of § 2339B, but it

would not appear to be intended to intimidate or coerce a

civilian population, or to affect the conduct of a government. 

See id. To qualify as international terrorism, the defendant’s

acts must satisfy each of the criteria contained in § 2331(1),

Linde, 882 F.3d at 325–26; see also Fields, 881 F.3d at 743

n.3, and “the provision of material support to a terrorist

organization does not invariably equate to an act of

international terrorism,” Linde, 882 F.3d at 326.
52 GONZALEZ V. GOOGLE

The Gonzalez Plaintiffs rely heavily on the Seventh

Circuit’s en banc decision in Boim, but that reliance is

misplaced. The issue in Boim was whether defendants who

had donated money to Hamas and Hamas-affiliated

charities—knowing that Hamas used its resources to finance

the killing of Israeli Jews—could be held liable under the

ATA for Hamas’s 1994 murder of an American teenager in

Israel. Boim, 549 F.3d at 688–690. The en banc court stated

that a knowing donor’s contributions to Hamas would satisfy

the definitional requirements of “international terrorism” set

forth in § 2331(1). Id. at 690, 694. Boim reasoned that

“donations to Hamas . . . would enable Hamas to kill or

wound, or try to kill” more people in Israel. Id. at 694. The

Seventh Circuit concluded that such donations would appear

to be intended to intimidate or coerce a civilian population

because of the foreseeability of these consequences.14Id. 

The Gonzalez Plaintiffs’ reliance on Boim is misplaced

because the allegations here are not at all similar to those in

Boim, which involved voluntary donations specifically and

purposefully directed to a foreign terrorist organization.

Taking as true the allegation that Google shared

advertising revenue with ISIS as part of its AdSense program,

that action does not permit the inference that Google’s actions

objectively appear to have been intended to intimidate or

coerce civilians, or to influence or affect governments. The

Seventh Circuit’s decision in Kemper v. Deutsche Bank AG,

911 F.3d 383 (7th Cir. 2018), illustrates this point. There, the

court concluded that the plaintiff failed to plausibly allege

14 We express no view on whether Boim would be decided the same

way today. Notably, that decision was issued before Congress enacted

JASTA, thereby creating secondary liability for aiding and abetting acts

of international terrorism. See 18 U.S.C. § 2333(d)(2).
GONZALEZ V. GOOGLE 53

that Deutsche Bank’s institution of procedures to evade U.S.

sanctions and facilitate Iranian banking transactions qualified

as international terrorism. Id. at 390. The court reasoned that

Deutsche Bank’s actions did “not appear intended to

intimidate or coerce any civilian population or government”

because, “[t]o the objective observer, its interactions with

Iranian entities were motivated by economics.” Id.

Similarly here, the Gonzalez Plaintiffs did not allege that

Google’s actions were motivated by anything other than

economic self-enrichment. The TAC alleges that Google is

a commercial service in the business of selling advertising,

and that “Google uses the AdSense monetization program to

earn revenue, and as an incentive to encourage users to post

videos on YouTube.” These allegations are easily

distinguished from those involving donations to a known

terrorist organization. See Boim, 549 F.3d at 690, 694. The

Gonzalez Plaintiffs did not allege that Google shared ISIS’s

vision and objectives, nor that Google intended ISIS to

succeed in any future acts of terrorism. Rather, the

complaint’s allegations suggest that Google split ad revenue

with ISIS in furtherance of its own financial best interest.

The TAC fails to allege that Google’s provision of

material support appeared to be intended to intimidate or

coerce a civilian population, or to influence or affect a

government as required by the ATA. See 18 U.S.C.

§ 2331(1)(B). For this reason, the Gonzalez complaint does

not adequately allege the requirements necessary to establish

direct liability for an act of international terrorism pursuant to

§ 2333(a), and we need not reach whether the Gonzalez

Plaintiffs sufficiently alleged that Google’s actions

proximately caused Nohemi Gonzalez’s death.
54 GONZALEZ V. GOOGLE

V

Turning to the Gonzalez Plaintiffs’ secondary liability

claims based on revenue-sharing, Google argues that the

Gonzalez complaint fails to state a claim for secondary

liability pursuant to 18 U.S.C. § 2333(d)(2). We agree.15

As originally enacted, the ATA allowed only claims

alleging direct liability against the perpetrators of acts of

international terrorism. Rothstein, 708 F.3d at 97; see also

Linde, 882 F.3d at 319–20. In 2016, Congress amended the

ATA by enacting JASTA, which extends civil liability to

persons who aid and abet by providing substantial assistance

to persons who commit acts of international terrorism, and to

those who conspire to commit such acts. 18 U.S.C.

§ 2333(d)(2). Secondary liability for aiding or abetting acts

of terrorism applies only when the principal act of

international terrorism is “committed, planned, or authorized

by an organization . . . designated as a foreign terrorist

organization.” Id.

The Gonzalez Plaintiffs raise claims for both aiding-andabetting and conspiracy liability. We address these theories

separately.

15 The district court concluded that the Gonzalez Plaintiffs advanced

a revenue-sharing theory only with respect to their claims for direct

liability. We find the TAC somewhat ambiguous on this point, but

assume for purposes of deciding this appeal that the Gonzalez Plaintiffs

raised a revenue-sharing theory with respect to both their direct liability

and secondary liability claims.
GONZALEZ V. GOOGLE 55

A

Under § 2333(d)(2) of the ATA, “liability may be asserted

as to any person who aids and abets, by knowingly providing

substantial assistance” to “the person who committed . . . an 

act of international terrorism” as set forth in § 2333(a). 

18 U.S.C. § 2333(d)(2). JASTA specifies that the D.C.

Circuit’s decision in Halberstam v. Welch, 705 F.2d 472

(D.C. Cir. 1983), describes “the proper legal framework” for

assessing aiding-and-abetting liability under § 2333(d). Pub.

L. No. 144-222, § 2(a)(5), 130 Stat. at 852; see also Siegel v.

HSBC N. Am. Holdings, Inc., 933 F.3d 217, 223 (2d Cir.

2019).

Halberstam addressed the scope of secondary liability for

common law causes of action. See 705 F.2d at 474. The

plaintiff, Elliott Halberstam, was the widow of Michael

Halberstam. Id. Michael Halberstam was a physician killed

by Bernard Welch during the course of a burglary. Id. 

Halberstam’s widow brought a wrongful death action against

Linda Hamilton, Welch’s live-in girlfriend, alleging that

Hamilton was civilly liable for Michael Halberstam’s death,

both as an aider-abettor and a co-conspirator. Id. at 474–76. 

Hamilton provided assistance to Welch during the course of

his multi-year campaign of burglaries, including preparing

letters of sale for stolen goods, falsifying tax returns to

conceal income derived from stolen goods, maintaining

accounts on Welch’s behalf, and handling financial

transactions. Id. at 475, 486, 488. The D.C. Circuit

ultimately concluded that Hamilton was civilly liable for

Halberstam’s death, even though Welch killed Halberstam

during a robbery and Hamilton was not present. The court

concluded that Hamilton was liable under a conspiracy theory

and also an aiding-and-abetting theory. Id. at 489.
56 GONZALEZ V. GOOGLE

The scenario presented in Halberstam is, to put it mildly,

dissimilar to the one at issue here. But Congress selected

Halberstam as the governing standard for secondary liability

ATA claims because Halberstam “has been widely

recognized as the leading case regarding Federal civil aiding

and abetting . . . liability.” Pub. L. No. 144-222, § 2(a)(5),

130 Stat. at 852.

In Halberstam, the D.C. Circuit identified three elements

that a plaintiff must prove in order to establish aiding-andabetting liability: “(1) the party whom the defendant aids

must perform a wrongful act that causes an injury; (2) the

defendant must be generally aware of his role as part of an

overall illegal or tortious activity at the time that he provides

the assistance; [and] (3) the defendant must knowingly and

substantially assist the principal violation.” 705 F.2d at 477.

1

The first element of aiding and abetting liability requires

a showing that the party the defendant aided committed an act

of international terrorism that injured the plaintiff. 18 U.S.C.

§ 2333(d)(2); Halberstam, 705 F.2d at 477; see also Siegel,

933 F.3d at 223.16 The parties dispute whether the relevant

principal actor is the ISIS organization as a whole or the

individual terrorists who perpetrated the Paris Attacks. We

agree with the Gonzalez Plaintiffs that ISIS is the relevant

16 As noted, the ATA’s secondary liability provision only applies

where a designated “foreign terrorist organization” “committed, planned,

or authorized” the act of international terrorism. § 2333(d)(2). The parties

do not dispute that the Paris Attacks were an act of international terrorism,

nor do they dispute that the killing of Nohemi Gonzalez during the Paris

Attacks was an injury to the Gonzalez Plaintiffs.
GONZALEZ V. GOOGLE 57

“person who committed . . . an act of international terrorism.” 

18 U.S.C. § 2333(d)(2).

The TAC alleges that coordinated teams of ISIS terrorists

planned and carried out the Paris Attacks. Specifically, it

alleges that the café shooters who murdered Nohemi

Gonzalez—Abaaoud, Abdeslam, and Akrouh—were

members of ISIS. The Gonzalez Plaintiffs further allege that

Abaaoud, the operational leader of the Paris Attacks, traveled

to Syria to join ISIS in March 2013, joined ISIS while in

Syria, and publicly declared his affiliation with ISIS. We

accept as true the allegations that, in 2014, Abaaoud posted

a link on his Facebook profile to an ISIS recruiting video in

which he described his life and role with ISIS, and, that in

2015, ISIS’s English-language magazine, Dabiq, featured an

interview with Abaaoud. These allegations distinguish the

TAC from the claims presented in Crosby v. Twitter, Inc.,

where the Sixth Circuit rejected the plaintiffs’ ATA claims

because the complaint contained “no allegations that ISISwas

involved with the Pulse Night Club shooting” perpetrated by

Omar Mateen. 921 F.3d 617, 626 (6th Cir. 2019); see also

18 U.S.C. § 2333(d)(2). We conclude the Gonzalez Plaintiffs

satisfied the first element of aiding-and-abetting liability

because the TAC plausibly alleged that ISIS, a designated

terrorist organization, “committed, planned, or authorized”

the Paris Attacks.

2

The second element of aiding-and-abetting liability

requires a showing that Google was generally aware of its

role in ISIS’s terrorist activities at the time it provided

assistance to ISIS. 18 U.S.C. § 2333(d)(2); Halberstam,
58 GONZALEZ V. GOOGLE

705 F.2d at 477; see also Linde, 882 F.3d at 329. The

Gonzalez Plaintiffs also satisfied this element.

Just as the Halberstam court concluded that Linda

Hamilton was generally aware of her role in Bernard Welch’s

ongoing burglary operation because she “knew about and

acted to support” it, the Gonzalez Plaintiffs must plausibly

allege that, by sharing revenue with ISIS, Google was aware

that it was assuming a role in ISIS’s terrorist activities. See

Halberstam, 705 F.2d at 488; see also Linde, 882 F.3d at 329

(requiring a showing that “the bank was ‘generally aware’

that [by providing financial services,] it was thereby playing

a ‘role’ in Hamas’s violent or life-endangering activities”

(quoting Halberstam, 705 F.2d at 477)). Notably, this

element does not require a showing of “the specific intent

demanded for criminal aiding and abetting culpability,” i.e.,

an “intent to participate in a criminal scheme as ‘something

that he wishes to bring about and seek by his action to make

it succeed.’” Linde, 882 F.3d at 329 (quoting Rosemond v.

United States, 572 U.S. 65, 76 (2014)). Nor does it require

that Google “knew of the specific attacks at issue.” Id.

The TAC adequately alleges that Google was aware of the

role it played in ISIS’s terrorist activities. Specifically, the

Gonzalez Plaintiffs allege that Google knowingly shared

advertising revenue with ISIS and that Google did so despite

numerous reports from news organizations that Google

placed advertisements on ISIS videos. Under these

circumstances, the allegation that Google knowingly gave

“fungible dollars to a terrorist organization” plausibly alleges

that Google was aware of the role it played in activities that

“may be ‘dangerous to human life.’” Cf. Kemper, 911 F.3d

at 390; see also Fields, 881 F.3d at 748; Boim, 549 F.3d

at 693.
GONZALEZ V. GOOGLE 59

We are mindful that “aiding and abetting an act of

international terrorism requires more than the provision of

material support to a designated terrorist organization.” 

Linde, 882 F.3d at 329. Thus, the mens rea required for the

general awareness element of secondary liability under

§ 2333(d) may not be coextensive with the showing required

for material support under § 2339B. The latter “requires only

knowledge of the organization’s connection to terrorism, not

intent to further its terrorist activities or awareness that one is

playing a role in those activities.” See id. at 330 (citing

Holder, 561 U.S. at 16–17); see also, e.g., Siegel, 933 F.3d

at 224 (concluding plaintiffs failed to plead general awareness

with allegations “suggest[ing] that in providing banking

services to [a Saudi Arabian bank], HSBC had little reason to

suspect that it was assuming a role in [al-Qaeda in Iraq’s]

terrorist activities”). But here, we are satisfied that the

allegations indicating Google knowingly contributed money

to ISIS suffice to show that Google understood it played a

role in the violent and life-endangering activities undertaken

by ISIS, and therefore establish the second element of aidingand-abetting liability for purposes of § 2333(d)(2).

3

The third element of aiding-and-abetting liability requires

that the plaintiff show the defendant knowingly and

substantially assisted the act of terrorism that injured the

plaintiff. 18 U.S.C. § 2333(d)(2); see also Halberstam,

705 F.2d at 488 (holding the defendant must have “knowingly

and substantially assist[ed] the principal violation”). This

element contains two components: (1) “knowing[]”

assistance, and (2) “substantial[]” assistance. See

Halberstam, 705 F.2d at 477; see also id. at 488 (evaluating

whether Linda Hamilton assisted Bernard Welch “with
60 GONZALEZ V. GOOGLE

knowledge that he had engaged in illegal acquisition of

goods” separate from considering whether her “assistance

was ‘substantial’”).

The Halberstam court identified six factors relevant to

assessing whether the substantial assistance component is

satisfied: “(1) the nature of the act encouraged, (2) the

amount of assistance given by defendant, (3) defendant’s

presence or absence at the time of the tort, (4) defendant’s

relation to the principal, (5) defendant’s state of mind, and

(6) the period of defendant’s assistance.” Linde, 882 F.3d

at 329 (citing Halberstam, 705 F.2d at 483–84).17

The parties dispute whether the relevant “principal

violation” for analyzing the third element is ISIS’s broader

campaign of terrorism or the Paris Attacks. See Halberstam,

705 F.2d at 488. But Halberstam explained that the extent of

liability under aiding-and-abetting encompasses

foreseeability, such that a defendant “who assists a tortious

act may be liable for other reasonably foreseeable acts done

in connection with it.” 705 F.2d at 484. For example, the

common law cases Halberstam drew upon established that a

thirteen-year-old boy who broke into a church with some

17 In dicta, the Second Circuit suggested that these factors determine

“whether the defendant’s assistance was sufficiently knowing and

substantial to qualify as aiding and abetting.” Linde, 882 F.3d at 329 n.10

(emphasis added). However, Halberstam appears to treat “knowing”

assistance as an inquiry separate from “substantial” assistance. See

Halberstam, 705 F.2d at 478 (explaining that the listed factors aid “in

making th[e] determination” of “how much encouragement or assistance

is substantial enough” (emphasis added)). Indeed, the Halberstam court

explicitly acknowledged that “the scienterrequirement in the third element

of aiding-abetting” requires that “an aider-abettor must knowingly assist

the underlying violation.” See id. at 485 n.14.
GONZALEZ V. GOOGLE 61

companions could be held liable for damage to the church

caused by his companions’ failure to extinguish torches they

used to light their way in the church attic. Id. at 482–83

(citing Am. Family Mut. Ins. Co. v. Grim, 440 P.2d 621,

625–26 (Kan. 1968)). Because the need for lighting could

have been anticipated, “the boy who had not used a torch, nor

even expected one to be lighted, could be liable for the

damage caused by the torches.” Id. at 483. By contrast, the

Halberstam court cited an example from the Restatement

(Second) of Torts where liability was not imposed: if A

supplies wire cutters to B to allow B to unlawfully enter the

land of C to recapture chattels belonging to B, and B

intentionally sets fire to C’s house in the course of his

trespass, A is not liable for the destroying the house. Id. at

483 n.12 (quoting Restatement (Second) of Torts § 876, cmt.

d (1976)).

Halberstam concluded that Linda Hamilton was liable for

Welch killing Michael Halberstam because of the nature and

extent of her assistance to Welch’s illegal burglary enterprise. 

Id. at 488. In the court’s view, the killing “was a natural and

foreseeable consequence of the activity Hamilton helped

Welch to undertake.” Id. “[W]hen she assisted him, it was

enough that she knew he was involved in some type of

personal property crime at night—whether as a fence, burglar,

or armed robber made no difference—because violence and

killing is a foreseeable risk in any of these enterprises.” Id.

We have little difficulty concluding that the Paris Attacks

were a foreseeable result of ISIS’s broader campaign of

terrorism. Accordingly, when assessing whether the TAC

satisfies the third element of aiding-and-abetting liability, we

consider ISIS’s broader campaign of terrorism to be the

relevant “principal violation.”
62 GONZALEZ V. GOOGLE

Pursuant to § 2333(d)(2), liability attaches to an aiderabettor who “knowingly provid[es] substantial assistance.” 

18 U.S.C. § 2333(d)(2) (emphasis added). Thus, a plaintiff

must show that the defendant “knowingly gave ‘substantial

assistance’ to someone who performed wrongful conduct.” 

Halberstam, 705 F.2d at 478; see also id. at 485 n.14 (noting

“the scienter requirement in the third element” addresses the

issue of “whether an aider-abettor must knowingly assist the

underlying violation”).

We conclude that the Gonzalez Plaintiffs adequately

allege knowing assistance. The TAC alleges “each YouTube

video must be reviewed and approved by Google” before

advertisements are placed with that video, and “Google has

reviewed and approved ISIS videos . . . for ‘monetization,’”

and Google therefore “shared revenue with ISIS.” The TAC

alleges that, prior to the Paris Attacks, numerous news

organizations reported on Google’s placement of

advertisements in or alongside ISIS videos, and Google

responded to these media reports by stating it worked to

prevent ads from appearing on any video once it determined

the content was not appropriate for advertising partners.

In Halberstam, the knowledge requirement of the third

element was satisfied because Linda Hamilton’s actions

“were performed knowingly to assist Welch in his illicit

trade.” 705 F.2d at 486; see also id. at 488 (noting that

Hamilton had “assisted Welch with knowledge that he had

engaged in illegal acquisition of goods”). Here, the Gonzalez

Plaintiffs allege that Google reviewed and approved ISIS

videos for monetization and thereby knowingly provided ISIS

with financial assistance for its terrorist operations. 

According to the TAC, Google did so despite its awareness

that these videos were created by ISIS and posted by ISIS
GONZALEZ V. GOOGLE 63

using known ISIS accounts. Taking these allegations as true,

they are sufficient to plausibly allege that Google’s assistance

was knowing as required by § 2333(d)(2).

That leaves the question whether the Gonzalez Plaintiffs

sufficiently allege that Google’s assistance was “substantial.” 

Based on our review of the six Halberstam factors, we

conclude the Gonzalez Plaintiffs did not allege that Google’s

assistance rose to this level. See Linde, 882 F.3d at 329; see

also Halberstam, 705 F.2d at 483–84.

As to the first factor—the nature of the act

encouraged—Halberstam explained that the nature of the

principal’s act “dictates what aid might matter, i.e., be

substantial.” Halberstam, 705 F.2d at 484. For example,

verbal support might be of great import when a “defendant’s

war cry for more blood” contributes to an “assaulter’s

hysteria,” but less important in a case involving a defamation. 

See id. Here, the Gonzalez Plaintiffs allege that Google

assisted ISIS’s long-running terrorist campaign. Financial

support is “indisputably important” to the operation of a

terrorist organization, id. at 488, and any money provided to

the organization may aid its unlawful goals. Fields, 881 F.3d

at 748; cf. Siegel, 933 F.3d at 225.

The second factor considers “the amount of assistance

given by the defendant.” Halberstam, 705 F.2d at 478. This

factor recognizes that not all assistance is equally important,

see id. at 484, and the TAC contains no information about the

amount of assistance provided by Google. It only alleges that

Google shared some advertising revenue with ISIS.

Third, we consider the defendant’s “presence or absence

at the time of the tort” to assess whether the defendant’s
64 GONZALEZ V. GOOGLE

assistance was “substantial.” Id. at 478. The Gonzalez

Plaintiffs concede that Google was not present at the time of

the Paris Attacks. However, if the relevant tort is viewed as

ISIS’s broader campaign of terrorism, including the

dissemination of propaganda on Google’s website before and

after the Paris Attacks, Google was arguably present for at

least some of the terroristic activities that comprise the

“principal violation.”

The fourth factor considers the defendant’s “relation” to

the principal, recognizing that some persons—e.g., those in

positions of authority, or members of a larger group—may

possess greater powers of suggestion. Id. at 478, 484. 

Halberstam also cautioned that courts should be “especially

vigilant” in evaluating a spouse’s assistance, “so as not to

infuse the normal activities of a spouse with the aura of a

concerted tort.” Id. at 484. Google allowed members of ISIS

who posted videos on YouTube to opt into AdSense, and by

approving ISIS videos for monetization, Google agreed to

share some percentage of the resulting advertising revenue

with those ISIS members. Thus, the allegations in the TAC

describe arms-length business transactions between Google

and YouTube users who opted into the AdSense program.

The fifth factor is directed to the defendant’s “state of

mind.” Id. at 478. Evidence of a defendant’s state of mind

may show that a defendant was “one in spirit” with the

principal actor. Id. at 484. The Gonzalez Plaintiffs do not

allege that Google had any intent to finance, promote, or

carry out ISIS’s terrorist acts. See Siegel, 933 F.3d at 225. 

Nor does the TAC suggest that Google shared any of ISIS’s

objectives. Instead, the allegations show, at most, that

Google intended to profit from the AdSense program. The

TAC incorporates by reference articles that indicate Google
GONZALEZ V. GOOGLE 65

took some steps to prevent ads from appearing on ISIS

videos.18

Finally, the sixth factor concerns the “duration of the

assistance provided.” Halberstam, 705 F.2d at 484. 

Halberstam explained that “[t]he length of time an alleged

aider-abettor has been involved with a tortfeasor almost

certainly affects the quality and extent of their relationship

and probably influences the amount of aid provided as well;

additionally, it may afford evidence of the defendant’s state

of mind.” Id. Here, the TAC lacks specific allegations about

the length of time Google provided assistance to ISIS in the

form of revenue-sharing, but it cites several news articles

from March 2015 and March 2016 describing the placement

of advertisements on YouTube videos posted by ISIS. The

TAC also provides an example from a video published on

May 28, 2015. Thus, at most, the Gonzalez Plaintiffs allege

that advertisements were placed on ISIS’s YouTube videos

during those periods of time.

We conclude that these allegations fall short of

establishing that Google’s assistance was sufficiently

“substantial” for purposes of § 2333(d)(2) liability. When we

review an order granting a 12(b)(6) motion to dismiss we are

required to assess whether the allegations in the complaint,

taken as true, state a claim of substantial assistance. See

Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1177 (9th Cir.

2021) (“Our case law does not permit plaintiffs to rely on

anticipated discovery to satisfy Rules 8 and 12(b)(6); rather,

18 See, e.g., Ads Shown Before YouTube ISIS Videos

Catch Companies Off-Guard, NBC News (Mar. 10,

2015), http://www.nbcnews.com/storyline/isis-terror/ads-shownisis-videos-youtube-catchcompanies-guard-n320946.
66 GONZALEZ V. GOOGLE

pleadings must assert well-pleaded factual allegations to

advance to discovery”).

Although monetary support is undoubtedly important to

ISIS’s terrorism campaign, the TAC is devoid of any

allegations about how much assistance Google provided. As

such, it does not allow the conclusion that Google’s

assistance was substantial. Nor do the allegations in the TAC

suggest that Google intended to assist ISIS. Accordingly, we

conclude the Gonzalez Plaintiffs failed to state a claim for

aiding-and-abetting liability under the ATA. We do not

consider whether the identified defects in the Gonzalez

Plaintiffs’ revenue-sharing claims—principally, the absence

of any allegation regarding the amount of the shared

revenue—could be cured by further amendment because the

Gonzalez Plaintiffs were given leave to amend those claims

and declined to do so. See WMX Techs., Inc. v. Miller,

104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

B

Section 2333(d)(2) also permits claims for secondary

liability “as to any person . . . who conspires with the person

who committed . . . an act of international terrorism” as set

forth in § 2333(a). As with aiding-and-abetting liability,

JASTA specifies that the D.C. Circuit’s decision in

Halberstam provides “the proper legal framework” for

assessing conspiracy liability under § 2333(d). Pub. L. No.

144-222, § 2(a)(5), 130 Stat. at 852. Halberstam concluded

that proof of conspiracy requires three elements: (1) “an

agreement to do an unlawful act or a lawful act in an unlawful

manner,” (2) “an overt act in furtherance of the agreement by

someone participating in it,” and (3) “injury caused by the

act.” 705 F.2d at 487. We conclude the Gonzalez Plaintiffs’
GONZALEZ V. GOOGLE 67

TAC does not state an actionable claim for conspiracy

liability.

The TAC’s allegations are insufficient to plausibly

suggest that Google reached an agreement with ISIS to carry

out the Paris Attacks that caused Nohemi Gonzalez’s death. 

Halberstam requires the overt act causing plaintiffs’ injury

must be “done pursuant to and in furtherance of the common

scheme.” Id. at 477. Google’s sharing of revenues with

members of ISIS does not, by itself, support the inference that

Google tacitly agreed to commit homicidal terrorist acts with

ISIS, where Nohemi Gonzalez’s murder was an overt act

perpetrated pursuant to, and in furtherance of, that common

scheme.19 We therefore conclude that the Gonzalez Plaintiffs

fail to state a claim for conspiracy liability under the ATA,

and affirm the district court’s dismissal with prejudice of the

TAC.

VI

We now turn to the Taamneh appeal. As we have

explained, although the complaints in Gonzalez and Taamneh

are similar, our decision in Taamneh is largely dictated by the

path Taamneh took to reach our court. Because the bulk of

the Gonzalez Plaintiffs’ claims were properly dismissed on

the basis of § 230 immunity, our decision in Gonzalez

principally focuses on whether the Gonzalez Plaintiffs’

19 The Gonzalez Plaintiffs seek to enlist the TAC’s allegation that

“Google . . . conspired with ISIS, its members[,] and affiliates” to

promote, plan, and carry out “the acts of international terrorism that

injured the plaintiffs.” But this conclusory allegation is insufficient to

survive a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555–56 (2007).
68 GONZALEZ V. GOOGLE

revenue-sharing theory sufficed to state a claim under the

ATA. In contrast, the district court in Taamneh did not reach

§ 230; it only addressed whether the Taamneh Plaintiffs

plausibly alleged violations of the ATA for purposes of Rule

12(b)(6). The Taamneh appeal is further limited by the fact

that the Taamneh Plaintiffs only appealed the dismissal of

their aiding-and-abetting claim.

The Taamneh Plaintiffs’ aiding-and-abetting claim stems

from Abdulkadir Masharipov’s murder of Nawras Alassaf at

the Reina nightclub on January 1, 2017. Masharipov’s

connection to ISIS is not disputed. He filmed his

“martyrdom” video, wherein he stated that he was going to

carry out a suicide attack in the name of ISIS, and requested

that his son grow up to be a suicide bomber like him.

20 About

one year before the Reina Attack, ISIS instructed Masharipov

to move to Turkey with his family and await further orders. 

ISIS provided Masharipov with an assault rifle, ammunition,

and stun grenades, and directed Masharipov when and where

to attack. ISIS also sent Masharipov footage taken inside the

Reina nightclub, and Masharipov viewed it at length to

memorize the floor plan in preparation for his attack. 

1

Taamneh Plaintiffs’ aiding-and-abetting claim is

governed by the standards set forth in Halberstam. The first

Halberstam element requires that “the party whom the

20 The operative complaint alleges “[m]artyrdom videos, shared via

Defendants’ websites, are tools of propaganda frequently used by ISIS. 

These videos are used as psychological weapons in ISIS’s attempt to

establish validity for their actions, inspire fear in their enemies, or spread

their ideology for political or religious ambitions.”
GONZALEZ V. GOOGLE 69

defendant aids must perform a wrongful act that causes an

injury.” 705 F.2d at 477. The parties do not dispute that the

Reina Attack was an “act of international terrorism” that was

“committed, planned, or authorized” by ISIS. Nor do the

parties dispute that the Reina Attack caused the Taamneh

Plaintiffs’ injury—the killing of Nawras Alassaf.

2

The second Halberstam element of aiding-abetting

liability requires the defendant to be “generally aware of his

role as part of an overall illegal or tortious activity at the time

that he provides the assistance.” Id. The Taamneh Plaintiffs

also satisfied this element.

The Taamneh Plaintiffs allege that, at the time of the

Reina Attack, defendants were generally aware that ISIS used

defendants’ platforms to recruit, raise funds, and spread

propaganda in support of their terrorist activities. The FAC

alleges that, despite “extensive media coverage” and legal

and governmental pressure, defendants “continued to provide

these resources and services to ISIS and its affiliates, refusing

to actively identify ISIS’s Twitter, Facebook, and YouTube

accounts, and only reviewing accounts reported by other

social media users.” These allegations suggest the

defendants, after years of media coverage and legal and

government pressure concerning ISIS’s use of their platforms,

were generally aware they were playing an important role in

ISIS’s terrorism enterprise by providing access to their

platforms and not taking aggressive measures to restrict

ISIS-affiliated content. See Linde, 882 F.3d at 329; see also

Halberstam, 705 F.2d at 477.
70 GONZALEZ V. GOOGLE

3

The third Halberstam element requires the plaintiff to

allege the defendant knowingly and substantially assisted the

principal violation. 705 F.2d at 477. We conclude the

Taamneh Plaintiffs’ complaint satisfied this element.

The Taamneh Plaintiffs adequately allege that defendants

knowingly assisted ISIS. Specifically, the FAC alleges that

ISIS depends on Twitter, Facebook, and YouTube to recruit

individuals to join ISIS, to promote its terrorist agenda, to

solicit donations, to threaten and intimidate civilian

populations, and to inspire violence and other terrorist

activities. The Taamneh Plaintiffs’ complaint alleges that

each defendant has been aware of ISIS’s use of their

respective social media platforms for many years—through

media reports, statements from U.S. government officials,

and threatened lawsuits—but have refused to take meaningful

steps to prevent that use. The FAC further alleges that

Google shared revenue with ISIS by reviewing and approving

ISIS’s YouTube videos for monetization through the

AdSense program. Taken as true, these allegations

sufficiently allege that defendants’ assistance to ISIS was

knowing.

We next consider whether the Taamneh Plaintiffs

plausibly allege that defendants’ assistance was “substantial,”

applying the six Halberstam factors.21 First, the act

21 Many of the allegations we discuss in the context of Taamneh were

also raised in a similar form in the Gonzalez TAC. But because of the

application of § 230 immunity in Gonzalez, we did not have occasion to

consider them in our evaluation of the Gonzalez Plaintiffs’ aiding-andabetting claim.
GONZALEZ V. GOOGLE 71

encouraged is ISIS’s terrorism campaign, and the FAC

alleges that this enterprise was heavily dependent on social

media platforms to recruit members, to raise funds, and to

disseminate propaganda. The FAC alleges that by providing

ISIS with access to robust communications platforms free of

charge, defendants facilitated ISIS’s ability to reach and

engage audiences it could not otherwise reach, and served as

a matchmaker for people around the globe who were

sympathetic to ISIS’s vision. It also alleges ISIS’s terrorist

enterprise relies on financial support, as any money provided

to the organization may aid its unlawful goals. Fields,

881 F.3d at 748.

The second factor—the amount of assistance given by a

defendant—is addressed by the Taamneh Plaintiffs’

allegation that the social media platforms were essential to

ISIS’s growth and expansion. The Taamneh Plaintiffs allege

that, without the social media platforms, ISIS would have no

means of radicalizing recruits beyond ISIS’s territorial

borders. Before the era of social media, ISIS’s predecessors

were limited to releasing short, low-quality videos on

websites that could handle only limited traffic. According to

the FAC,ISIS recognized the power of defendants’ platforms,

which were offered free of charge, and exploited them. ISIS

formed its own media divisions and production companies

aimed at producing highly stylized, professional-quality

propaganda. The FAC further alleges that defendants’ social

media platforms were instrumental in allowing ISIS to instill

fear and terror in civilian populations. By using defendants’

platforms, the Taamneh Plaintiffs allege that ISIS has

expanded its reach and raised its profile beyond that of other

terrorist groups. These are plausible allegations that the

assistance provided by defendants’ social media platforms
72 GONZALEZ V. GOOGLE

was integral to ISIS’s expansion, and to its success as a

terrorist organization.

The third factor considers the defendant’s presence or

absence at the time of the tort. At oral argument, Taamneh

Plaintiffs unambiguously conceded the act of international

terrorism they allege is the Reina Attack itself. There is no

dispute that defendants were not present during the Reina

Attack.

Fourth, we consider the defendant’s relation to the

principal actor, ISIS. The FAC indicates that defendants

made their platforms available to members of the public, and

that billions of people around the world use defendants’

platforms. By making their platforms generally available to

the market, defendants allowed ISIS to exploit their

platforms; but like the Gonzalez TAC, these allegations

indicate that defendants had, at most, an arms-length

transactional relationship with ISIS. The alleged relationship

may be even further attenuated than the ones defendants have

with some of their other users because the FAC alleges

defendants regularly removed ISIS content and ISIS-affiliated

accounts. The Taamneh Plaintiffs do not dispute that

defendants’ policies prohibit posting content that promotes

terrorist activity or other forms of violence.

The fifth factor concerns the defendant’s state of mind. 

Here, the Taamneh Plaintiffs do not allege that defendants

had any intent to further or aid ISIS’s terrorist activities, see

Siegel, 933 F.3d at 225, or that defendants shared any of

ISIS’s objectives. Indeed, the record indicates that

defendants took steps to remove ISIS-affiliated accounts and

videos. With respect to advertisements on ISIS YouTube

videos, the articles incorporated into the complaint suggest
GONZALEZ V. GOOGLE 73

that Google took at least some steps to prevent ads from

appearing on ISIS videos.

The sixth factor addresses the period of the defendant’s

assistance. The Taamneh Plaintiffs allege that defendants

provided ISIS with an effective online communications

platforms for many years. The FAC alleges that ISISaffiliated accounts first appeared on Twitter in 2010. 

According to the Taamneh Plaintiffs’ FAC, ISIS used

Facebook as early as 2012, and used YouTube as early as

2013.

Taking the FAC’s allegations as true, we conclude the

Taamneh Plaintiffs adequately allege that defendants’

assistance to ISIS was substantial. The FAC alleges that

defendants provided services that were central to ISIS’s

growth and expansion, and that this assistance was provided

over many years.

We are mindful that a defendant’s state of mind is an

important factor, and that the FAC alleges the defendants

regularly removed ISIS-affiliated accounts and content. See

Halberstam, 705 F.2d at 488 (noting that Hamilton’s state of

mind “assume[d] a special importance” because her knowing

assistance evidenced “a deliberate long-term intention to

participate in an ongoing illicit enterprise” and an “intent and

desire to make the venture succeed”). But the Taamneh

Plaintiffs also allege that defendants allowed ISIS accounts

and content to remain public even after receiving complaints

about ISIS’s use of their platforms.

We also recognize the need for caution in imputing

aiding-and-abetting liability in the context of an arms-length

transactional relationship of the sort defendants have with
74 GONZALEZ V. GOOGLE

users of their platforms. Not every transaction with a

designated terrorist organization will sufficiently state a claim

for aiding-and-abetting liability under the ATA. But given

the facts alleged here, we conclude the Taamneh Plaintiffs

adequately state a claim for aiding-and-abetting liability.

VII

Finally, we turn to Clayborn. The claims in Clayborn

arise from a fatal shooting in San Bernardino, California in

which Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos

lost their lives. The district court did not address § 230

immunity and the Clayborn Plaintiffs only appeal the

dismissal oftheir ATAclaimfor aiding-and-abetting liability.

The Clayborn Plaintiffs allege that Google, Twitter, and

Facebook provided key assistance to the two shooters, Farook

and Malik. To plausibly allege an aiding-and-abetting claim

under the ATA, the Clayborn Plaintiffs must allege that ISIS

“committed, planned, or authorized” the San Bernardino

Attack. 18 U.S.C. § 2333(d)(2); see also Halberstam,

705 F.2d at 477. The district court held the Clayborn

Plaintiffs failed to plausibly allege that ISIS committed,

authorized, or planned the San Bernardino Attack because the

ties between the attack and ISIS were “insufficient to

plausibly plead claims for indirect liability.” The court

interpreted § 2333(d)(2) to require “evidence that ISIS itself

planned or carried out the attack,” requiring more than

allegations that ISIS sought to “generally radicalize”

individuals and that ISIS promoted terrorist attacks.

On appeal, the Clayborn Plaintiffs argue three “central

allegations” sufficiently connect ISIS to Farook and Malik:

(1) ISIS claimed responsibility for the San Bernardino Attack
GONZALEZ V. GOOGLE 75

after the fact; (2) Malik pledged allegiance to then-ISIS

leader Abu Bakr al-Baghdadi at some point during the attack;

and (3) “the FBI confirmed evidence that Farook had face to

face meetings a few years prior to the attack with five people

the Bureau investigated and labeled [as] having ‘links to

terrorism.’” From these allegations, the Clayborn Plaintiffs

urge us to infer “that ISIS authorized the San Bernardino

shooting sometime before the attack.”

We conclude the operative complaint does not plausibly

allege that ISIS “committed, planned, or authorized” the San

Bernardino Attack. It is undisputed that Farook and Malik

planned and carried out the mass killing, but the Clayborn

Plaintiffs’ allegations suggest only that ISIS approved of the

shooting after learning it had occurred, not that it authorized

the attack beforehand. The allegations in the operative

complaint indicate some connection between the shooters and

ISIS is possible, but more is needed in order to plausibly

allege a cognizable claim for aiding-and-abetting liability.

Twombly, 550 U.S. at 555 (“Factual allegations must be

enough to raise a right to relief above the speculative level . . .

on the assumption that all of the complaint’s allegations are

true . . . .” (internal citation omitted)).

The Sixth Circuit decision in Crosby aligns with our

conclusion. In Crosby, plaintiffs filed claims against Google,

Twitter, and Facebook under the ATA following the mass

shooting at the Pulse Night Club in Orlando, Florida. 

621 F.3d at 619. The plaintiffs alleged “ISIS ‘virtually

recruited’ people through online content, [the shooter] saw

this content at some point before the shooting, and [the

shooter] injured Plaintiffs.” Id. at 626. The Crosby plaintiffs

also alleged that ISIS took responsibility for the attack after

the fact. Id. at 619. Even taking the allegations as true, the
76 GONZALEZ V. GOOGLE

SixthCircuit concluded the complaint alleged the shooter was

“self-radicalized” and never had any contact with ISIS, and

failed to allege that ISIS gave permission for the attack. Id. 

Thus, the Sixth Circuit held “there [were] insufficient facts to

allege that ISIS ‘committed, planned, or authorized’ the Pulse

Night Club shooting.” Id. at 626.

The dissent would hold that the Clayborn Plaintiffs

adequately stated a claim for aiding and abetting liability. 

Specifically, the dissent relies on the Clayborn Plaintiffs’

allegation that Farook and Malik used a tactic a Department

of Justice report described as “a frequent, well documented

practice in international terrorism incidents” that had been

outlined in Al Qaeda and ISIS magazines disseminated on

defendants’ platforms. We disagree. Farook and Malik’s use

of well-known terrorist tactics do not give rise to an inference

that their attack was “implicitly authorized” by ISIS.

The dissent urges us to apply common law principles of

agency to conclude that ISIS authorized the San Bernardino

Attack by ratifying it after the fact. We cannot agree this

element is adequately alleged. Section 2333(d)(2) requires

plaintiffs to demonstrate the act of international terrorismwas

“committed, planned, or authorized” by a foreign terrorist

organization. The language Congress adopted gives no

indication that the “committed, planned, or authorized”

element is satisfied merely because a foreign terrorist

organization praises an act of terrorism.

Even if Congress intended “authorized” to include acts

ratified by terrorist organizations after the fact, ISIS’s

statement after the San Bernardino Attack fell short of

ratification. The complaint alleges that ISIS stated, “Two

followers of Islamic State attacked several days ago a center
GONZALEZ V. GOOGLE 77

in San Bernardino in California, we pray to God to accept

them as Martyrs.” This clearly alleges that ISIS found the

San Bernardino Attack praiseworthy, but not that ISIS

adopted Farook’s and Malik’s actions as its own. See

Restatement (Third) of Agency, § 4.01 cmt. b, (1933) (“The

act of ratification consists of an externally observable

manifestation of assent to be bound by the prior act of another

person.”).

Because the Clayborn Plaintiffs’ allegations do not

plausibly allege that ISIS “committed, planned, or

authorized” the San Bernardino Attack, the Clayborn

Plaintiffs did not adequately state a claim for aiding and

abetting an act of international terrorism under § 2333(d)(2). 

See Crosby, 921 F.3d at 626.22

VIII

The plaintiffs in these three cases suffered devastating

losses from acts of extreme and senseless brutality, and their

claims highlight an area where technology has dramatically

outpaced congressional oversight. There is no indication the

drafters of § 230 imagined the level of sophistication

algorithms have achieved. Nor did they foresee the

22 The district court did not reach whether the San Bernardino Attack

was an “act of international terrorism.” (emphasis added). This question

appears to be much closer in Clayborn than either of the other appeals

before us. See 18 U.S.C. § 2331(1)(C). In Clayborn, the attack was

planned and executed in the United States by a U.S. citizen and his wife. 

Although the San Bernardino Attack was undoubtably an act of terror, it

is less clear whether the complaint alleged sufficient international activity

to qualify the San Bernardino Attack as an instance of “international

terrorism.” Having held the Clayborn Plaintiffs failed to state a claim for

secondary liability on other grounds, we do not decide that question.
78 GONZALEZ V. GOOGLE

circumstance we now face, in which the use of powerful

algorithms by social media websites can encourage, support,

and expand terrorist networks. At the time § 230 was

enacted, it was widely considered “impossible for service

providers to screen each of their millions of postings for

possible problems.” Carafano, 339 F.3d at 1124 (emphasis

added) (quoting Zeran, 129 F.3d at 330–31). But it is

increasingly apparent that advances in machine-learning

warrant revisiting that assumption. Indeed, social media

companies are reportedly making laudable strides to develop

tools to identify, flag, and remove inherently illegal content

such as child pornography.23 Section 230’s sweeping

immunity is likely premised on an antiquated understanding

of the extent to which it is possible to screen content posted

by third parties.

There is no question § 230(c)(1) shelters more activity

than Congress envisioned it would. Whether social media

companies should continue to enjoy immunity for the thirdparty content they publish, and whether their use of

algorithms ought to be regulated, are pressing questions that

Congress should address. 

IX

With respect to Gonzalez, we affirm the district court’s

ruling that § 230 immunity bars the plaintiffs’ non-revenue

sharing claims. We also affirm the district court’s dismissal

of the direct liability revenue-sharing claims for failure to

adequately allege proximate cause. Separately, we conclude

the TAC’s direct liability revenue-sharing claims did not

plausibly allege that Google’s actions qualified as acts of

23 Supra note 11.
GONZALEZ V. GOOGLE 79

international terrorism within the meaning of § 2331(1), and

that the secondary liability revenue-sharing claims failed to

plausibly allege either conspiracy or aiding-and-abetting

liability under the ATA.

With respect to Taamneh, we reverse the district court’s

judgment that the FAC failed to adequately state a claim for

secondary liability under the ATA.

With respect to Clayborn, we affirm the judgment of the

district court that Clayborn Plaintiffs failed to state a claim

for secondary liability under the ATA.24

The judgment in No. 18-16700 is AFFIRMED.

The judgment in No. 18-17192 is REVERSED AND

REMANDED.

The judgment in No. 19-15043 is AFFIRMED.

24 Amicus Electronic Frontier Foundation (EFF) moves to file an

amicus brief in this appeal. We grant the motion, and grant the Gonzalez

Plaintiffs’ motion to file an oversized reply brief in order to respond to

EFF. In its amicus brief, EFF raises several arguments concerning the

First Amendment. We often “decline to consider” amicus briefs that seek

“to raise issues not raised or briefed by the parties.” Am. Trucking Ass’ns,

Inc. v. City of Los Angeles, 559 F.3d 1046, 1053 n.11 (9th Cir. 2009)

(citing Day v. Apoliona, 496 F.3d 1027, 1035 n.11 (9th Cir. 2007)). Here,

because the parties did not raise the First Amendment, the panel declines

to consider EFF’s arguments on this issue.
80 GONZALEZ V. GOOGLE

BERZON, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately

to explain that, although we are bound by Ninth Circuit

precedent compelling the outcome in this case, I join the

growing chorus of voices calling for a more limited reading

of the scope of section 230 immunity. For the reasons

compellingly given by Judge Katzmann in his partial dissent

in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), cert.

denied, 140 S. Ct. 2761 (2020), if not bound by Circuit

precedent I would hold that the term “publisher” under

section 230 reaches only traditional activities of publication

and distribution—such as deciding whether to publish,

withdraw, or alter content—and does not include activities

that promote or recommend content or connect content users

to each other. I urge this Court to reconsider our precedent en

banc to the extent that it holds that section 230 extends to the

use of machine-learning algorithms to recommend content

and connections to users.

47 U.S.C. § 230(c)(1) provides: “No 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.” “This grant of immunity

applies only if the interactive computer service provider is not

also an ‘information content provider,’ which is defined as

someone who is ‘responsible, in whole or in part, for the

creation or development of’ the offending content.” Fair

Hous. Council of San Fernando Valley v. Roommates.Com,

LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (quoting

47 U.S.C. § 230(f)(3)). Although the statute was enacted in

response to the risk of liability for defamation, the language

of the statute applies to any cause of action based on the

publication or speaking of information content. See Barnes
GONZALEZ V. GOOGLE 81

v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009). This

Court has held that immunity under section 230 extends to

“(1) a provider or user of an interactive computer service

(2) whom a plaintiff seeks to treat, under a state law cause of

action, as a publisher or speaker (3) of information provided

by another information content provider.” Dyroff v. Ultimate

Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019),

cert. denied, 140 S. Ct. 2761 (2020) (quoting Barnes,

570 F.3d at 1100–01).

The key issue as to the non-revenue-sharing claims in

Gonzalez v. Google is whether Google, through YouTube, is

being treated “as a publisher” of videos posted by ISIS for

purposes of these claims. We have previously held that

“publication involves reviewing, editing, and deciding

whether to publish or to withdraw from publication thirdparty content.” Barnes, 570 F.3d at 1102. A website’s

decisions to moderate content, restrict users, or allow third

parties full freedom to post content and interact with each

other all therefore fall squarely within the actions of a

publisher shielded from liability under section 230.

But the conduct of the website operators here—like the

conduct of most social media website operators today—goes

very much further. The platforms’ algorithms suggest new

connections between people and groups and recommend long

lists of content, targeted at specific users. As Judge Gould’s

dissent cogently explains, the complaint alleges that the

algorithms used by YouTube do not merely publish user

content. Instead, they amplify and direct such content,

including violent ISIS propaganda, to people the algorithm

determines to be interested in or susceptible to those

messages and thus willing to stay on the platform to watch

more. Dissent at 96–97. Similarly, “Facebook uses the
82 GONZALEZ V. GOOGLE

algorithms to create and communicate its own message: that

it thinks you, the reader—you, specifically—will like this

content. And . . . Facebook’s suggestions contribute to the

creation of real-world social networks.” Force, 934 F.3d

at 82 (Katzmann, C.J., concurring in part and dissenting in

part).

In my view, these types of targeted recommendations and

affirmative promotion of connections and interactions among

otherwise independent users are well outside the scope of

traditional publication. Some sites use their algorithms to

connect users to specific content and highlight it as

recommended, rather than simply distributing the content to

anyone who chooses to engage with it. Others suggest that

users communicate with designated other users previously

unknown to the recipient of the suggestion. See Dyroff,

934 F.3d at 1095. Traditional publication has never included

selecting the news, opinion pieces, or classified ads to send to

each individual reader based on guesses as to their

preferences and interests, or suggesting that one reader might

like to exchange messages with other readers. The actions of

the social network algorithms—assessing a user’s prior posts,

friends, or viewing habits to recommend new content and

connections—are more analogous to the actions of a direct

marketer, matchmaker, or recruiter than to those of a

publisher. Reading the statute without regard to our postBarnes case law, I would hold that a plaintiff asserting a

claim based on the way that website algorithms recommend

content or connections to users is not seeking to treat the

interactive computer service as a “publisher” within any usual

meaning of that term. Instead, the website is engaging in its

own communications with users, composing and sending

messages to users concerning what they might like to view or

who they might like to interact with.
GONZALEZ V. GOOGLE 83

Nothing in the history of section 230 supports a reading

of the statute so expansive as to reach these websitegenerated messages and functions. Section 230 “provide[d]

internet companies with immunity from certain claims ‘to

promote the continued development of the Internet and other

interactive computer services.’” HomeAway.com, Inc. v. City

of Santa Monica, 918 F.3d 676, 681 (9th Cir. 2019) (quoting

47 U.S.C. § 230(b)(1)). But as Judge Katzmann thoroughly

explained in his dissent in Force, the aim of section 230 was

to avoid government regulation of internet content while

“empower[ing]interactive computer service providers to selfregulate, and . . . provid[ing] tools for parents to regulate,

children’s access to inappropriate material.” Force, 934 F.3d

at 79 (Katzmann, C.J., concurring in part and dissenting in

part). A New York state court had just held that an Internet

provider that hosted online bulletin boards could be held

liable for defamation as a publisher because it actively

monitored and removed offensive content. See Batzel v.

Smith, 333 F.3d 1018, 1029 (9th Cir. 2003) (citing Stratton

Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *4

(N.Y. Sup. Ct. May 24, 1995) (unpublished)). So section

230, responding to Stratton Oakmont, prevented providers

from being treated as the publisher of third-party content,

47 U.S.C. § 230(c)(1), and eliminated liability for actions

taken to restrict access to objectionable material, id.

§ 230(c)(2). Although “Congress grabbed a bazooka to swat

the Stratton-Oakmont fly,” Force, 934 F.3d at 80 (Katzmann,

C.J., concurring in part and dissenting in part), still, neither

the text nor the history of section 230 supports a reading of

“publisher” that extends so far as to reach targeted,

affirmative recommendations of content or of contacts by

social media algorithms.
84 GONZALEZ V. GOOGLE

BUT: As the majority opinion explains, our case law

squarely and irrefutably holds otherwise. There is just no

getting around that conclusion, as creatively as Judge Gould’s

dissent tries to do so.

Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093,

involved a social networking website that allowed users

anonymously to share their experiences on any topic and post

and answer questions. Importantly, the website, Experience

Project, also “recommended groups for users to join, based on

the content of their posts and other attributes, using machinelearning algorithms.” Id. at 1095. One user, Wesley Greer,

posted a question about buying drugs in a heroin-related

group, and the website sent him a notification when a nearby

drug dealer posted in the same group. Id. Greer bought

heroin laced with fentanyl from the dealer and died from the

drug. Id.

Dyroff held that “[b]y recommending user groups and

sending email notifications, [the website] was acting as a

publisher of others’ content. These functions—

recommendations and notifications—are tools meant to

facilitate the communication and content of others. They are

not content in and of themselves.” Id. at 1098. To me, those

two sentences actually illustrate why the recommendation and

email notifications are not actions taken in the role of

publisher. The activities highlighted do involve

communication by the service provider, and so are activities

independent of simply providing the public with content

supplied by others.

The recommendations and notifications in Dyroff are not

meaningfully different than the recommendations and

connections provided by the social media companies in the
GONZALEZ V. GOOGLE 85

cases at issue here. Greer’s mother alleged that Experience

Project “steered users to additional groups dedicated to the

sale and use of narcotics” and “sent users alerts to posts

within groups that were dedicated to the sale and use of

narcotics,” both actions that relied on algorithms to amplify

and direct users to content. Id. at 1095. Like the

recommendations provided by YouTube, Experience

Project’s recommendations communicated to each user that

the website thought that user would be interested in certain

posts and topics. And, as here, the recommended connection

was to individuals openly engaged in illegal activity, and the

consequences were fatal. Just as the terrorist group’s deadly

activities were, according to the complaints in these cases,

facilitated by recommending their gruesome message to

potential recruits, so the drug dealers’ illegal activities in

Dyroff were directly facilitated by connecting them with

potential customers. And in both instances, the consequences

of the service provider’s recommendations were deadly.

The problem in our case law goes considerably further

back than Dyroff. Before Dyroff, Fair Housing Council of

San Fernando Valley v. Roommates.com, LLC, held that

section 230 did not immunize a website that “induced third

parties to express illegal preferences” by including

discriminatory criteria in a required form for people setting

up profiles, 521 F.3d at 1165. Roommates.com operated a

website listing rentals and people seeking rooms and required

subscribers to list information about their own and their

preferred roommates’ sex, sexuality, and family status. 

Roommates held that although the information itself was

provided by third parties, the mandatory nature of the

information and the “limited set of pre-populated answers”

made Roommates.com into “much more than a passive

transmitter of information provided by others; it becomes the
86 GONZALEZ V. GOOGLE

developer, at least in part, of that information.” Id. at 1166. 

Roommates distinguished between “providing neutral tools

[for users] to carry out what may be unlawful or illicit

searches” or “allow[ing] users to specify whether they will or

will not receive emails by means of user-defined criteria” and

operating “in a manner that contributes to the alleged

illegality.” Id. at 1169.

As the majority discusses, Maj. Op. at 38, Roommates

relied on our prior decision in Carafano v. Metrosplash.com,

Inc., 339 F.3d 1119 (9th Cir. 2003), which held that a dating

website was not liable for an unauthorized and libelous

profile created by a third party, see id. at 1122, 1125. The

dating website “provided neutral tools specifically designed

to match romantic partners depending on their voluntary

inputs.” Roommates, 521 F.3d at 1172. Carafano determined

that the website was being treated as a publisher and that the

“additional features, such as ‘matching’ profiles with similar

characteristics” were not sufficient to make the website into

the “creator” or “developer” of the content in user profiles

under 47 U.S.C. § 230(f)(3). 339 F.3d at 1125; see id.

at 1124–25. Instead, the Court determined that such features

were more akin to editing or selection. Id. at 1124. A tool

matching two people who choose to share similar information

about themselves is nearly identical to Facebook’s algorithm

suggesting possible connections and is similar to algorithms

recommending new videos based on past user viewing habits,

and to the recommendation and notification functions of the

Experience Project at issue in Dyroff. Dyroff concluded that

“[t]he [Experience Project’s] recommendation and
GONZALEZ V. GOOGLE 87

notification functions,” like the tools in Carafano, could not

give rise to liability, because they “helped facilitate . . . userto-user communication, but . . . did not materially contribute

. . . to the alleged unlawfulness of the content,” 934 F.3d

at 1099.

The partial dissent considers the Gonzalez Plaintiffs’

allegations “more akin to those in Roommates.com than

Dyroff because of the unique threat posed by terrorism

compounded by social media.” Dissent at 99. But the subject

matter of the third-party content does not dictate whether an

interactive computer service is being treated as a publisher of

that content. Nor does the test proposed in the partial dissent,

which focuses on “message[s] designed to recruit individuals

for a criminal purpose” and material contribution “to a

centralized cause giving rise to a probability of grave harm,”

id. at 100, meaningfully distinguish our case law, particularly

Dyroff. The sale of heroin is a criminal purpose, and many

drug dealers operate as part of criminal networks. Although

the harm caused by a terrorist attack is immense, the harm

caused by the sale of fentanyl-laced heroin is certainly

“grave”—it led to Greer’s death in Dyroff. The allegation

that the recommendation to users of illegal terrorist messages

establishes the illegality of Google’s actions under the AntiTerrorism Act (ATA), 18 U.S.C. § 2333, exactly parallels the

allegation in Dyroff that the dissemination of messages

connecting drug dealers to buyers contributed to the harms

Congress intended to combat by prohibiting drug trafficking.

I therefore concur in full in the majority opinion, as we

are bound by this Court’s precedent in Dyroff extending

immunity under section 230 to targeted recommendations of

content and connections. But I agree with the dissent and

Judge Katzmann that recommendation and social connectivity
88 GONZALEZ V. GOOGLE

algorithms—as distinct from the neutral search functions

discussed in Roommates—provide a “message” from the

social media platforms to the user about what content they

will be interested in and other people with whom they should

connect. Transmitting these messages goes beyond the

publishers’ role insulated from liability by section 230.

I urge the Court to take this case en banc to reconsider our

case law and hold that websites’ use of machine-generated

algorithms to recommend content and contacts are not within

the publishing role immunized under section 230. These

cases demonstrate the dangers posed by extending section

230 immunity to such algorithmic recommendations, an

extension, in my view, compelled by neither the text nor

history of the statute. As Judge Gould and Judge Katzmann

both emphasize, algorithms on social media sites do not offer

just one or two suggestions; they operate cumulatively and

dominate the user experience. “The cumulative effect of

recommend[ations] . . . envelops the user, immersing her in

an entire universe filled with people, ideas, and events she

may never have discovered on her own.” Force, 934 F.3d

at 83 (Katzmann, C.J., concurring in part and dissenting in

part). If viewers start down a path of watching videos that the

algorithms link to interest in terrorist content, their immersive

universe can easily become one filled with ISIS propaganda

and recruitment. Even if the algorithm is based on contentneutral factors, such as recommending videos most likely to

keep the targeted viewers watching longer, the platform’s

recommendations of what to watch send a message to the

user. And that message—“you may be interested in watching

these videos or connecting to these people”—can radicalize

users into extremist behavior and contribute to deadly

terrorist attacks like these.
GONZALEZ V. GOOGLE 89

I concur—but, for the reasons stated, reluctantly—in the

majority opinion.

GOULD, Circuit Judge, concurring in part and dissenting in

part:

I

I concur in part in the majority opinion in its Parts I and

II, Part III.A through III.D, Part III.F, and Part VI, but

respectfully dissent in part as to Part III.E, and Parts IV, V,

and VII. These cases involve several shooting or bombing

incidents involving ISIS terrorists at far-flung worldwide

locations of Paris, France; Istanbul, Turkey; and San

Bernardino, California, in the United States. They also

involve claims that Internet or social media companies such

as Google, YouTube, Facebook, and Twitter contributed to

acts of terrorism because of the operation of their procedures

and platforms. I concur insofar as the majority would reverse

in part the dismissal of revenue-sharing claims in Gonzalez v.

Google, and insofar as it would reverse the district court’s

judgment in Taamneh v. Twitter that the complaint failed to

adequately state a claim for secondary liability under the

Anti-Terrorism Act (“ATA”). However, I respectfully

dissent as to the majority’s dismissal of the Gonzalez claims

on grounds of Section 230 immunity, and of failure to state a

claimfor direct or secondary liability under the ATA, because

of the majority’s mistaken conclusion that there was no act of

international terrorism, and I also would hold that the

complaint adequately alleged that there was proximate cause

supporting damages on those claims.
90 GONZALEZ V. GOOGLE

I further note that the majority here makes its dismissive

rulings solely on the pleadings and with no discovery to

illuminate Plaintiffs’ well-plead factual contentions. Federal

Rule of Civil Procedure 12(b)(6) permits dismissal of claims

without pondering evidence in cases where a complaint fails

to state a claim. FRCP 12(b)(6) has an important role to play

in efficiently clearing the courts of suits that lack plausible

allegations or where a legal barrier like preemption exists. 

Yet in a case that does not warrant such a prompt dismissal,1

we do the legal system a disservice by dismissing a case

before considering the evidence that can arise in a properly

monitored discovery period. A defendant that actually has

immunity is a good candidate for 12(b)(6) dismissal, but if

the district court’s conception of the scope of immunity is

incorrect, as I believe it was here, then its dismissal under that

rule will be untenable.

I would hold that Section 230 of the Communications

Decency Act (“CDA”) does not bar the Gonzalez Plaintiffs’

claims for direct and secondary liability under the ATA, and

I would allow those claims to proceed to the district court for

a reasonable period for discovery. I agree that claims can

proceed in the Taamneh case, and accordingly agree with

reversing and remanding in that case. And on the Clayborn

1 Doubtless the Defendant social media companies would benefit

from 12(b)(6) dismissal at the outset—in a case where they are actually

immune—to avoid expensive and time-consuming discovery procedures. 

However, while that relief would be “swift,” it would not necessarily be

just. I am reminded of the often-quoted observation by Justice Potter

Stewart, when he was a U.S. Circuit Judge and before his elevation to the

Supreme Court, that: “Swift justice demands more than just swiftness.” 

Henderson v. Bannan, 256 F.2d 363, 385 (6th Cir. 1958) (Stewart, J.,

dissenting) (capitalization altered). This observation has currency in civil

cases as well, and not only in the criminal justice context.
GONZALEZ V. GOOGLE 91

v. Twitter case, I respectfully dissent because I think that the

majority’s conception of an attack authorized by ISIS is

inconsistent with the allegations of the operative complaint

and well-established principles of tort and agency law. 

Further, on all these claims, I would permit amendment if

sought by plaintiffs based on a theory that the claims are

supported by specialized federal common law that may be

applied in cases involving a particularly strong national

interest and a gap in applicable statutory law.2

I further urge that regulation of social media companies

would best be handled by the political branches of our

government, the Congress and the Executive Branch, but that

in the case of sustained inaction by them, the federal courts

are able to provide a forum responding to injustices that need

to be addressed by our justice system. Here, that means to me

that the courts should be able to assess whether certain

procedures and methods of the social media companies have

created an unreasonably dangerous social media product that

proximately caused damages, and here, the death of many.

The issues here cannot be considered without

contemplating the specific facts alleged in the operative

2 We do not ordinarily consider an issue that was not raised in the

district court, e.g., Am. President Lines Ltd. v. Int’l Longshore &

Warehouse Union, Alaska Longshore Div., Unit 60, 721 F.3d 1147, 1157

(9th Cir. 2013), and similarly do not normally consider issues that are not

presented to us in the briefing, e.g., United States v. Garcia, 149 F.3d

1008, 1010 (9th Cir. 1998). However, these rules have exceptions that are

applied by us in extraordinary cases where permitting such an issue to be

considered is necessary to avoid a miscarriage of justice. See Hormel v.

Helvering, 312 U.S. 552, 557 (1941). Here, the three complaints involve

sufficiently strong interests of the families with loved ones lost to the ISIS

attacks, so that these cases fall within the exception to the rule.
92 GONZALEZ V. GOOGLE

complaints. Because the treatment by the majority of the

facts of the three cases captioned above is not contested by

me, I mention only the briefest thumbnail sketch of what is

involved in the three cases that are now on appeal:

Gonzalez v. Google, 18-16700, involved an ISIS shooting

in Paris on November 13, 2015, which took the life of

Nohemi Gonzalez, a 26-year-old U.S. citizen. This shooting

was one among a broader series of ISIS attacks in Paris on the

same day, including several suicide bombings and mass

shootings.

Taamneh v. Twitter, 18-17192, concerns the notorious

January 1, 2017 mass shooting by an ISIS operative at the

Reina nightclub in Istanbul, Turkey, which left 39 people

dead, 69 others injured, and resulted in the death of Nawras

Alassaf.

Clayborn v. Twitter, 19-15043, concerns the December 2,

2015 attack by ISIS supporters at the Inland Regional Center

in San Bernardino, California, which left 14 people dead and

22 others injured.

All of these terrorist incidents involved ISIS’s supporters. 

In all three cases, Plaintiffs alleged that Google, through

YouTube, and Twitter and Facebook, through their features,

provided material support to international terrorismand aided

and abetted international terrorism in violation of the ATA,

as amended in 2016 by the Justice Against Sponsors of

Terrorism Act (“JASTA”). I would hold that the challenged

conduct of the social media companies is not immunized by

Section 230 and that the complaints’ allegations are sufficient

to plausibly allege that the Defendant social media companies

violated positive statutory law and proximately caused
GONZALEZ V. GOOGLE 93

damages to Plaintiffs. In addition, I would hold that the same

types of claims can permissibly be asserted as a matter of

federal common law upon amendment of the complaints. See

infra, Section V.

II

My colleagues hold that Section 230 immunizes Google

from the Gonzalez Plaintiffs’ claims that the YouTube

platform’s content-generating algorithms aid and abet

international terrorism by repeatedly recommending the

propaganda videos of ISIS to users and by broadly

disseminating violent and radicalizing terrorist messages.3

It

is true that: “No provider or user of an interactive computer

service shall be treated as the publisher or speaker of any

3 The problem I challenge is not that the social media companies

republish harmful propaganda from ISIS; the problem is the algorithms

devised by these companies to keep eyes focused on their websites. 

Historian Anne Applebaum, who has evaluated the stresses on

democracies in several countries in light of modern communications and

technology, notes the following: “[S]ocial media algorithms themselves

encourage false perceptions of the world. People click on the news they

want to hear; Facebook, YouTube, and Google then show them more of

whatever it is that they already favor, whether it is a certain brand of soap

or a particular form of politics. The algorithms radicalize those who use

them too. If you click on perfectly legitimate anti-immigration YouTube

sites, for example, these can lead you quickly, in just a few more clicks,

to white nationalist sites and then to violent xenophobic sites. Because

they have been designed to keep you online, the algorithms also favor

emotions, especially anger and fear. And because the sites are addictive,

they affect people in ways they don’t expect. Anger becomes a habit. 

Divisiveness becomes normal. Even if social media is not yet the primary

news source for all Americans, it already helps shape how politicians and

journalists interpret the world and portray it. Polarization has moved from

the online world into reality.” See Anne Applebaum, Twilight of

Democracy—The Seductive Lure of Authoritarianism (1st ed. 2020).
94 GONZALEZ V. GOOGLE

information provided by another information content

provider.” 47 U.S.C. § 230(c)(1). But in my view, Section

230 was not intended to immunize, nor does its literal

language suggest that it immunizes, companies providing

interactive computer services from liability for serious harms

knowingly caused by their conduct. Plaintiffs raise a genuine

factual issue of whether Defendants knew that ISIS and its

supporters were inserting propaganda videos into their

platforms, which permits the inference that these social media

companies were aware of the risks to the public from

incipient terrorists who, inflamed by ISIS videos, would

wreak havoc upon “infidels” who might be encountered by

them.

Even if under Section 230 Google should not be

considered the publisher or speaker of propaganda messages

posted by ISIS or its sympathizers, the YouTube platform

nonetheless magnified and amplified those communications,

joining them with similar messages, in a way that contributed

to the ISIS terrorists’ message beyond what would be done by

considering them alone. Because ISIS depended on recruits

to carry out its campaign of worldwide hatred and violence,

disseminating its terrorist messages through its propaganda

videos was a proximate cause of the terrorist attacks at issue

here. When fairly read with notice pleading principles in

mind, the complaints plausibly allege ISIS’s dependence on

recruitment through social media’s free publicity and vast

network.

I do not believe that Section 230 was ever intended to

immunize such claims for the reasons stated in Chief Judge

Katzmann’s cogent and well-reasoned opinion concurring in

part and dissenting in part in Force v. Facebook, Inc.,

934 F.3d 53, 76–89 (2d Cir. 2019). Chief Judge Katzmann’s
GONZALEZ V. GOOGLE 95

partially dissenting opinion in Force v. Facebook is appended

as Attachment A to this partial dissent. Although I

substantially agree with Judge Katzmann’s reasoning

regarding Section 230 immunity, I add some thoughts of my

own. In short, I do not believe that Section 230 wholly

immunizes a social media company’s role as a channel of

communication for terrorists in their recruiting campaigns

and as an intensifier of the violent and hatred-filled messages

they convey. The law should not give social media platforms

total immunity, and in my view it does not, because the

conduct plausibly alleged does have “some direct

relationship,” Fields v. Twitter, Inc., 881 F.3d 739, 744 (9th

Cir. 2018), between the asserted injuries of the Plaintiff

families and the Defendant social media companies’ conduct. 

Further, Plaintiffs plausibly alleged aiding and abetting

claims because providing the channels of communication for

inflammatory videos should be considered substantial

assistance to the primary violations of terrorist shootings or

bombings.

The majority splits Plaintiffs’ claims into two categories:

claims based on Google’s content-generating algorithms (the

“non-revenue sharing claims”), and claims based on ISIS’s

use of Google’s advertising program, AdSense (the “revenue

sharing claims”). The majority ultimately concludes that

Section 230 shields Google from liability for its contentgenerating algorithms. I disagree. I would hold that

Plaintiffs’ claims do not fall within the ambit of Section 230

because Plaintiffs do not seek to treat Google as a publisher

or speaker of the ISIS video propaganda, and the same is true

as to the content-generating methods and devices of Facebook

and Twitter.
96 GONZALEZ V. GOOGLE

Accepting plausible complaint allegations as true, as we

must, Google, through YouTube, and Facebook and Twitter

through their various platforms and programs, acted

affirmatively to amplify and direct ISIS content, repeatedly

putting it in the eyes and ears of persons who were

susceptible to acting upon it. For example, YouTube’s

platform did so by serving up an endless stream of violent

propaganda content after any user showed an inclination to

view such material. At the same time, it permitted its

platforms to be used to convey recruiting information for

ISIS-seeking potential terrorists.

Consider how the Google/YouTube algorithm appears to

operate: To illustrate, let’s assume that a person went to

YouTube and asked it to play a favorite song of some artist

like Elvis Presley or Linda Ronstadt, or a classical symphony

by Ludwig van Beethoven or Wolfgang Amadeus Mozart, or

a jazz piece by Miles Davis or Charlie Parker. After that

requested song played, the viewer or listener would see

automatically a queue of similar or related videos showing

either other songs of the requested artist or of some other

artists within similar genre. Similarly, if one went to

YouTube to see a video about the viewer’s favorite National

Park, the viewer would soon see a line of videos about other

national parks or similar scenery. And here’s the difficulty:

If a person asked YouTube to play a video showing one

bloody ISIS massacre or attack, other such ISIS attacks would

be lined up, or even starting to play automatically. Thus, the

seemingly neutral algorithm instead operates as a force to

intensify and magnify a message. That poses no problem

when the video shows Elvis Presley or Linda Ronstadt

performing a musical song, or shows a beautiful National

Park. But when it shows acts of the most brutal terrorism

imaginable, and those types of images are magnified and
GONZALEZ V. GOOGLE 97

repeated over and over again, often coupled with incendiary

lectures, then the benign aspects of Google/YouTube,

Facebook and Twitter have been transformed into a chillingly

effective propaganda device, the results of which were

effectively realized in this case.

Section 230 of the CDA was aimed at giving Internet

companies some breathing space to permit rapid growth of

them and the economy by providing that when information

was posted on a website, the interactive computer service

hosting that website would not be liable for the substance of

the content posted by the user. Pub. L. 104-104, § 509, 110

Stat. 56, 56, 137–39; Reno v. ACLU, 521 U.S. 844, 857–58

(1997). Our circuit has developed and consistently applied a

three-part test, the Barnesfactors, for when immunity applies. 

See Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093,

1097 (9th Cir. 2019). Under those factors, a defendant is

entitled to Section 230 immunity when: (1) the defendant is

“a provider or user of an interactive computer service,

(2) whom the plaintiff seeks to treat, under a state law cause

of action, as a publisher or speaker,” (3) “of information

provided by another information content provider.” Id.

at 1097 (quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096,

1100–01 (9th Cir. 2009)).

The factor at issue here is the second. Although Section

230 arguably means that Google and YouTube cannot be

liable for the mere content of the posts made by ISIS, that

provision in no way provides immunity for other conduct of

Google or YouTube or Facebook or Twitter that goes beyond

merely publishing the post. Here, Plaintiffs allege that

Google’s “Services” include not just publishing content, but

also “use of Google’s infrastructure, network, applications,

tools and features, communications services,” and other
98 GONZALEZ V. GOOGLE

specialized tools like “Social Plugins” and “Badges.” Similar

allegations are made about other platforms’ tools and

procedures. I would affirm in part to the extent the district

court applied Section 230 immunity to YouTube or other

platforms simply carrying the posts fromISIS on its platform,

but not to the extent that it amplified and in part developed

the terrorist message by encouraging similar views to be

given to those already determined to be most susceptible to

the ISIS cause.

I believe that my view is consistent with our decision in

Dyroff. The majority relies on Dyroff for the proposition that

Google’s algorithms, which recommend ISIS content to

users, are “neutral tools” meant to facilitate communication

and the content of others. According to my colleagues, then,

under Section 230, Google does not transcend the role of a

publisher by merely recommending terrorism-related content

based on past content viewed.

In Dyroff, Plaintiff challenged a social networking

website called “Experience Project,” which allowed users to

anonymously share their first-person experiences, post and

answer questions, and interact with other users about different

topics. 934 F.3d at 1094. The website interface “did not

limit or promote the types of experiences users

shared”—instead, it was up to the user to use the site’s “blank

box” approach to generate content. Id. The site also used

machine-learning algorithms to recommend groups for users

to join based on the content of their posts. Id. at 1095. 

Plaintiff alleged that the site’s functions, including

recommendations of new groups and notifications from

groups of which the user is a member, facilitated an illegal

drug sale that resulted in the death of Plaintiff’s son, Wesley

Greer. Id. Greer posted on the site asking about where to
GONZALEZ V. GOOGLE 99

find heroin in a particular city, and a fellow user responded

and sold fentanyl-laced heroin to Greer. Id. Greer was sent

an email notification when the other user posted, which

resulted in the drug transaction. Id. We held that the site was

entitled to Section 230 immunity because Plaintiff sought to

treat the defendant as the publisher of Greer and his dealer’s

content. Id. at 1097.

We distinguished the facts in Dyroff from Fair Housing

Council of San Fernando Valley v. Roommates.com, 521 F.3d

1157, 1167–69 (9th Cir. 2008) (en banc). In Roommates, we

held that Section 230 did not immunize a website that

matched people renting rooms with people looking for

somewhere to live from liability under federal and state

housing anti-discrimination laws. Id. at 1161–62. The

Roommates.com website design guided users through

required discriminatory criteria, “inducing third parties to

express illegal preferences,” id. at 1165, and therefore the

website itself “directly participate[d] in developing the

alleged illegality.” Dyroff, 934 F.3d at 1099. In Dyroff, then,

we drew a distinction between true material contribution to a

third party’s content—which would involve “responsibility

for what makes the displayed content illegal or

actionable”—and “actions (traditional to publishers) that are

necessary to the display of unwelcome and actionable

content.” Id. (quoting Kimzey v. Yelp! Inc., 836 F.3d 1263,

1269 n.4 (9th Cir. 2016) (citation omitted)).

I would hold that the Gonzalez Plaintiffs’ allegations are

more akin to those in Roommates.com than Dyroff because of

the unique threat posed by terrorism compounded by social

media. ISIS content on YouTube is a pervasive phenomenon. 

Plaintiffs allege that “[t]he expansion and success of ISIS is

in large part due to its use of the internet and social media
100 GONZALEZ V. GOOGLE

platforms to promote and carry out its terrorist activities.” 

One study by the Counter Extremism Project found that

between March and June 2018, 1,348 ISIS videos were

uploaded to YouTube, garnering 163,391 views.

4 Though

websites using neutral tools like algorithms are generally

immunized by Section 230, I would hold that where the

website (1) knowingly amplifies a message designed to

recruit individuals for a criminal purpose, and (2) the

dissemination of that message materially contributes to a

centralized cause giving rise to a probability of grave harm,

then the tools can no longer be considered “neutral.” Further,

a lack of reasonable review of content posted that can be

expected to be harmful to the public, like ISIS’s violent

propaganda videos, also destroys neutrality.5

4 The Counter Extremism Project, White Paper, The eGlyph

Web Crawler: ISIS Content on YouTube (July 2018),

https://www.counterextremism.com/sites/default/files/eGLYPH_web_c

rawler_white_paper_July_2018.pdf.

5 Google suggests in its briefing that it tries to keep ISIS content from

YouTube. But the record in this case suggests that if so, the control has

been ineffective. The record shows that despite extensive media coverage,

legal warnings, and congressional hearings, social media companies

continued to provide a platform and communication services to ISIS

before the Paris attacks, and these resources and services went heedlessly

to ISIS and its affiliates, as the social media companies refused to actively

identify ISIS YouTube accounts, and only reviewed accounts reported by

other YouTube users. If, for example, a social media company must take

down within a reasonable time sites identified as infringing copyrights, it

follows with stronger logic that social media companies should take down

propaganda sites of ISIS, once identified, within a reasonable time to

avoid death and destruction to the public, which may be victimized by

ISIS supporters. Moreover, if social media companies can ban certain

speakers who flout their rules by conveying lies or inciting violence, as

was widely reported in the aftermath of tweets and posts relating to the

recent “insurrection” of January 6, 2021, then it is hard to see why such
GONZALEZ V. GOOGLE 101

In the case of terrorist recruiting, the dissemination itself

“contributes materially to the alleged illegality of the

conduct,” Roommates.com, 521 F.3d at 1168, in a way that

disseminating other violent videos would not. There can be

no doubt that ISIS’s use of violence and threats of violence is

part of its program of terrorism. Contrary to the majority’s

contention that Google “merely provid[ed] the public with

access to its platform,” Google affirmatively sent a message

in substance to users that individuals who enjoy watching

ISIS content may also be interested in joining its ranks.

Much as allowing a roommate-matching website to screen

candidates by discriminatory criteria presents the same harm

as doing such screening in person or by telephone (which is

clearly prohibited by statute), a search engine that knowingly

transmits recruitment messages to prospective terrorists

presents the exact danger—material support to the terrorist

cause—that Congress intended to combat with the ATA. 

Though indeed there are some situations where tools like

algorithms can be “neutral,” where the message itself is the

danger, the tool necessarily contributes to the alleged

illegality of the conduct.6

companies could not police and prohibit the transmission of violent ISIS

propaganda videos, in the periods preceding a terrorist attack. See

Kate Conger & Mike Isaac, Twitter Permanently Bans Trump,

Capping Online Revolt, N.Y. TIMES (Jan. 8, 2021),

https://www.nytimes.com/2021/01/08/technology/twitter-trumpsuspended.html.

6 The majority contends that my view, which considers the danger

inherent in the message amplified by Google, is inconsistent with

congressional intent in enacting Section 230(c)(1). Though it is true that

an interactive computer service is immune when it is “treated as the

publisher or speaker of any information provided by another information

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

portion of the statute makes clear that for Section 230 to apply, the
102 GONZALEZ V. GOOGLE

Plaintiffs’ allegations underscore the danger of

amplifying ISIS’s recruiting messages. Plaintiffs allege that

ISIS has used YouTube “to cultivate and maintain an image

of brutality, to instill greater fear and intimidation,” and to

distribute videos “made in anticipation of the [Paris] attack

showing each of the ISIS terrorists who carried out the attacks

telling of their intentions and then executing a captive for the

camera.” Plaintiffs allege that ISIS “not only uses YouTube

for recruiting, planning, inciting, and giving instructions for

terror attacks,” but also uses it “to issue terroristic threats . . .

intimidate and coerce civilian populations, take credit for

terror attacks, communicate its desired messages about the

terror attacks . . . [and] demand and attempt to obtain results

from the terror attacks.”

I note that Chief Judge Katzmann’s concurrence in part

and dissent in part in Force v. Facebook, Inc., 934 F.3d 53,

76–89 (2d Cir. 2019), relied on a reading of Roommates.com

that is consistent with my view here. Chief Judge Katzmann

contended that Facebook is developing content by actively

providing friend suggestions between users who have

expressed similar interests—in other words, the algorithms

provided a “message” from Facebook to the user. Id.

plaintiffs must be attempting through their suit to treat the website as a

publisher or speaker. But emphasizing the danger of the terrorist message

shows that because Google is amplifying ISIS’s recruitment

message—and thus acting as a content generator, not merely a

publisher—the inherent danger of dissemination materially contributes to

the illegality of the conduct. See Roommates, 521 F.3d at 1168. If a

website is acting as a publisher, then under Section 230 it will be immune

no matter what information it publishes from another source. But if, as is

the case here, the dangerous nature of the message makes amplifying that

message transform what would otherwise be mere publishing into content

development, then the website is no longer immune under Section 230.
GONZALEZ V. GOOGLE 103

at 82–83. In the same way, YouTube is “proactively creating

networks of people,” id. at 83, who are sympathetic to the

ISIS cause, and Google is delivering the message that those

YouTube users may be interested in contributing to ISIS in a

more tangible way.

Furthermore, propagating ISIS messages has an

amplification effect that is greater than the sum of each

individual connection. See Force, 934 F.3d at 83 (Katzmann,

J., dissenting in part) (“The cumulative effect of

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.”). Plaintiffs allege that Google does so in part by

“us[ing] YouTube to direct viewers to other online sites,

postings, media, and other social network media.” When an

ISIS recruitment video manages to reach one person via

YouTube that it might not otherwise have reached, that

person could join the cause by donating their time, money, or

even their life.7 With each person that joins its ranks, ISIS

grows in power and resources. It is the fact of recruitment to

7 As the Counter Extremism Project observes, “there is a clear

link between extremist videos and individuals who have sought to

support or join ISIS. A joint study from the University of

Chicago’s Project on Security and Threats and the Australian

Strategic Policy Institute’s Counter-Terrorism Policy Center found that

83% of Americans who committed or were charged with ISIS-related

crimes between March 2014 and August 2016 watched ISIS

propaganda videos.” See White Paper, eGlyph at 2 (citing Robert

Pape, et al., “The American Face of ISIS,” Australian Strategic Policy

Institute (Feb. 2017), https://s3-ap-southeast-2.amazonaws.com/adaspi/import/ASPI_CPOST_ISIS_Indictees.pdf?2Tbn8TshXmujb1ft8f7P

IR7sukzyr hka).
104 GONZALEZ V. GOOGLE

a centralized organization with the ability to cause

disproportionate harm that distinguishes a terrorist venture

from a “normal” criminal venture (as in Dyroff). In Dyroff,

though the website connected Greer with a drug dealer that he

might not have otherwise met, the singular connection

between the two was unlikely to contribute to a centralized

effort to commit international atrocities. I contend that the

ATA codifies a “duty not to provide material support to

terrorism” precisely because Congress recognized the

exponential impact of such conduct. See Force, 934 F.3d

at 83–84 (Katzmann, J., dissenting in part) (noting that “ATA

torts are atypical” because the Act premises liability “not on

publishing qua publishing, but rather on Facebook’s

provision of services and personnel to Hamas”).

For the foregoing reasons, I would hold that Section 230

does not immunize Google from liability for its contentgenerating algorithms insofar as they develop a message to

ISIS-interested users. The same reason supports lack of

immunity for the other Defendant social media companies’

use of their own algorithms, procedures, users, friends, or

other means to deliver similar content from ISIS to the users

of the social media. But even if Dyroff cannot be fairly

distinguished, then our circuit should take this case en banc

to modify or clarify the rule that machine-learning algorithms

can never produce content within the meaning of Section

230,8

or the Supreme Court should take up the proper

8The majority distinguishes Chief Judge Katzmann’s dissent in Force

in part by emphasizing that “Ninth Circuit case law forecloses his

argument,” though it recognizes that the Force dissent maintains that

Section 230(c)(1) “need not be interpreted to immunize websites’ friendand-content-suggestion algorithms.”
GONZALEZ V. GOOGLE 105

interpretation of Section 230 and bring its wisdom and

learning to bear on this complex and difficult topic.9

III

Having determined that Section 230 does not immunize

Google for liability for either set of claims (non-revenue

I disagree that our case law must be read to foreclose the Gonzalez

Plaintiffs’ argument, but the majority’s apparent recognition that friendand-content-suggestion algorithms could fairly be interpreted as outside

of Section 230’s ambit lends support to a potential en banc call in this

case.

9 Recently, Justice Thomas commented in connection with the denial

of a writ of certiorari in Malwarebytes, Inc. v. Enigma Software Group

USA, LLC, 141 S. Ct. 13 (2020), that the Court would soon find it

appropriate to take up a case interpreting Section 230. Justice Thomas

notes that a new look at the statute is warranted because “[w]hen Congress

enacted the statute, most of today’s major Internet platforms did not

exist.” Id. at 13 (Thomas, J., writing separately). Despite this, “many

courts have construed the law broadly to confer sweeping immunity on

some of the largest companies in the world.” Id. Justice Thomas goes on

to explain that courts’ views of Section 230 have gone from a “modest

understanding” to beyond what plausibly could have been intended by

Congress, including conferring immunity “even when a company

distributes content that it knowsis illegal. Id. at 15 (emphasis in original). 

In this separate statement, Justice Thomas made clear his view that the

scope of Section 230 immunity should be narrowed in line with

congressional intent. I agree with Justice Thomas that Section 230 has

mutated beyond the specific legal backdrop from which it developed, and

I cannot join a majority opinion that seeks to extend this sweeping

immunity further. When one considers the analysis in the statement of

Justice Thomas in Malwarebytes, the dissent of Chief Judge Katzmann in

Force v. Facebook, and the concurring opinion of Judge Tymkovich in

FTC v. Accusearch, 570 F.3d 1187 (10th Cir. 2009), I believe that there

is a rising chorus of judicial voices cautioning against an overbroad

reading of the scope of Section 230 immunity.
106 GONZALEZ V. GOOGLE

sharing and revenue sharing), I next consider whether

Plaintiffs properly stated a claim for direct liability under the

ATA.

The majority holds that Section 230 immunizes Google

from liability for Plaintiffs’ non-revenue sharing claims, so it

does not address whether Plaintiffs adequately alleged

primary liability for those claims. Having held that Section

230 does not preclude it from considering that issue for the

revenue sharing claims, however, the majority concludes that

Plaintiffs still do not state a claim for primary liability under

that theory. Specifically, my colleagues would decide that

Plaintiffs fail to plausibly allege that Google committed an

act of international terrorism, or that Google’s actions

proximately caused Nohemi Gonzalez’s death. I address both

bases for the majority’s conclusion in turn.

A

I would hold that the Plaintiffs plausibly stated a claim

that Google could be held primarily liable under the ATA

based on both Google’s revenue-sharing procedure and

Google’s content-generating algorithms. At the motion to

dismiss stage, we accept all factual allegations in the

complaint as true and construe them in the light most

favorable to the nonmoving party. Campidoglio LLC v. Wells

Fargo & Co., 870 F.3d 963, 970 (9th Cir. 2017) (citation

omitted).

The civil remedies provision of the ATA, 18 U.S.C.

§ 2333(a), allows a United States national who is a victim of

“an act of international terrorism” to sue for damages in

federal court. Acts constituting international terrorism

“involve violent acts or acts dangerous to human life that are
GONZALEZ V. GOOGLE 107

a violation of the criminal laws of the United States or of any

State . . . .” 18 U.S.C. § 2331(1)(A). Such acts must “appear

to be intended . . . (i) to intimidate or coerce a civilian

population; (ii) to influence the policy of a government by

intimidation or coercion; or (iii) to affect the conduct of a

government by mass destruction, assassination, or

kidnapping.” Id. § 2331(1)(B).

1

The majority acknowledges that Section 230 does not

shield Google from liability on the revenue sharing claims

because the allegations are “premised on Google providing

ISIS with material support by giving ISIS money.” I concur

with that aspect of the opinion, but I would also add that

providing monetary support to a foreign terrorist

organization, with the constructive knowledge that that

money would likely be used as part of the terrorist enterprise,

qualifies as an “act of international terrorism.” 18 U.S.C.

§ 2333(a).

I begin with the contours of Plaintiffs’ revenue sharing

claim. The complaint alleges that Google is aware of ISIS’s

presence on YouTube because it has received complaints

about ISIS content, and it has “suspended or blocked selected

ISIS-related accounts at various times.” Plaintiffs also allege

that Google shares a percentage of the revenue it generates

frompairing advertisements and videos with the video poster. 

Through Google’s commercial service, AdSense, users can

register their accounts for “monetization.” Plaintiffs allege

that ISIS uses the AdSense monetization program to earn

revenue. Before the YouTube video can be approved for

advertisements, Google must review and approve the video. 

Google has therefore “reviewed and approved ISIS videos,
108 GONZALEZ V. GOOGLE

including videos posted by ISIS-affiliated users, for

‘monetization’ through Google’s placement of ads in

connection with those videos.” Through those approvals,

Google gains constructive knowledge of the fact that it

provided financial support to ISIS and incentivized ISIS to

continue to post videos on YouTube. Plaintiffs’ allegations

about Google’s knowledge is bolstered by contentions that

various news outlets reported on the kind of ads appearing

before ISIS YouTube videos.

The majoritymistakenly concludes that Google’s conduct

could not qualify as international terrorism because it is not

“intended to intimidate or coerce a civilian population or to

influence or affect a government.” I disagree. The standard

for intent under the ATA is not subjective; rather, it is a

“matter of external appearance.” Boim v. Holy Land Found.

for Relief & Dev., 549 F.3d 685, 694 (7th Cir. 2008) (en

banc). I would hold that, on the facts alleged, a knowing

provision of resources to a terrorist organization constitutes

aid to international terrorism because an entity like Google

appears to intend the natural and foreseeable consequences of

its actions. See Restatement (Second) of Torts, § 8A (1965).

The majority relies on Linde v. Arab Bank, PLC, 882 F.3d

314 (2d Cir. 2018), to conclude that knowingly providing

material support to a terrorist organization is not “an act of

international terrorism” if it is motivated by economics. 

Besides the fact that Linde is a sister circuit decision that is

not binding on our court, its facts and holding are also

distinguishable. In Linde, the court expressly held that it was

error for the district court to instruct the jury that proof that

Arab Bank provided material support to a designated foreign

terrorist organization, in violation of § 2339B, “necessarily

proved the bank’s commission of an act of international
GONZALEZ V. GOOGLE 109

terrorism.” Id. at 325. Thus, the Second Circuit held only

that violating § 2339B does not inherently create an act of

terrorism. The court’s reasoning continually references the

context of its decision: whether it could find that the jury

instruction error was harmless. Id. at 327 (holding that “the

mere provision of routine banking services to organizations

and individuals said to be affiliated with terrorists does not

necessarily establish causation”) (internal quotation marks

and citation omitted) (emphasis added). Indeed, the court did

not even decide whether Arab Bank’s financial services to

Hamas should be viewed as “routine” under the court’s

precedent, because that issue raised a question of fact for the

jury to decide. Id.

Even accepting that providing material aid “does not

invariably equate” to an act of international terrorism under

§ 2331(1), Linde, 883 F.3d at 326, there are clearly situations

where providing such aid operates to endanger human life

and manifests an apparent intent to coerce or intimidate

civilians or to influence or affect governments. The Seventh

Circuit’s Boim decision represents such a case, despite the

majority incorrectly characterizing Plaintiffs’ reliance on it as

“misplaced.” In Boim, the court held that a jury could find

defendants liable under the ATA when they had donated

money toHamas and Hamas-affiliated charities, knowing that

Hamas used such money to finance violence towards at least

some American citizens. 549 F.3d at 690. Because donating

money to Hamas was like “giving a loaded gun to a child,” it

did not matter that the act of giving money is not a violent act

itself because, in context, it would be “dangerous to human

life.” Id. (citation omitted). The Seventh Circuit recognized

that imposing liability for providing money to a terrorist

group “makes good sense as a counterterrorism measure,”

because “[d]amages are a less effective remedy against
110 GONZALEZ V. GOOGLE

terrorists and their organizations than against their financial

angels.” Id.

Boim relied on the foreseeability of the consequences of

donating to Hamas to support its sensible holding that the

donations would appear to be intended to intimidate or coerce

a civilian population. Id. at 694; see also Linde, 883 F.3d at

327 (discussing Boim’s reasoning and stating that “given such

foreseeable consequences,” the donations met the statutory

definition for an act of terrorism). The court analogized

donating to a terrorist organization to giving a small child a

loaded gun because in both cases, the actor is “doing

something extremely dangerous and without justification.” 

Id. at 693. “If the actor knows that the consequences are

certain, or substantially certain, to result fromhis act, and still

goes ahead, he is treated by the law as if he had in fact

desired to produce the result.” Id. (quoting Restatement

(Second) of Torts, § 8A (1965)). The fact that the actor was

not motivated by a desire for the child to shoot anyone is of

no matter to the tort inquiry. Id.

The Gonzalez Plaintiffs allege that Google knewISIS was

using its AdSense program, and that therefore Google knew

it was providing material support to a terrorist organization. 

The fact that Google was not motivated by a desire to

augment ISIS’s efforts to recruit other terrorists is irrelevant. 

The majority’s argument—that Google’s interactions with

ISIS via revenue sharing are not intended to intimidate or

coerce civilian populations because Google was “motivated

by economics”—is an arbitrary line divorced from Section

2333’s text and established principles of tort law. Boim—a

decision properly based upon Section 2333’s text and

history—does not attempt to draw a line based on motivation. 

In fact, it rejects such a line as irrelevant to the question of
GONZALEZ V. GOOGLE 111

intent because a person intends what he knows is

substantially certain to result from his act. 549 F.3d at 693. 

My colleagues attempt to distinguish Boim by noting that a

donor to Hamas would likely share that organization’s vision

and objectives, but Boim did not rely on that aspect of

targeted donation. Instead, the Seventh Circuit reasoned that

“[a] knowing donor to Hamas” is “a donor who knew the

aims and activities of the organization.” Id. at 693–94

(emphasis added). It was the donor’s knowledge of Hamas’

activities, rather than his approval of it, that gave rise to

liability.

2

Because amplifying ISIS’s message and creating new

networks of prospective terrorist recruits foreseeably provides

material support to a terrorist organization, I would likewise

hold that the complaint in Gonzalez v. Google states a claim

that Google is primarily liable on a non-revenue sharing

theory.

Terrorism is, in part, psychological warfare. The record

shows that for ISIS terrorism is a psychological weapon. 

ISIS’s most potent and far-reaching weapon is the Internet. 

The Gonzalez complaint alleges that “Google’s YouTube

platform has played an essential role in the rise of ISIS,”

which has become one of the largest perpetrators of violence

in the world. ISIS uses YouTube to recruit members, plan

terrorist attacks, issue threats, take credit for attacks, and

demand and attempt to obtain results from the attacks by

influencing government policies and conduct. While one of

ISIS’s goals is to commit acts of violence, “the physical

attack itself and the harm to the individual victims of the

attack” is just one piece of the puzzle—ISIS also uses terror
112 GONZALEZ V. GOOGLE

attacks as a means to communicate its political message and

instill fear in those it considers its combatants. Thus, the

impact of ISIS’s terrorism is dependent upon its ability to

communicate its message and reach its intended audiences. 

Id. Plaintiffs allege that “ISIS’s use of violence and threats

of violence [are] part of its program of terrorism, designed

. . . to gain attention, instill fear and ‘terror’ in others, send a

message, and obtain results.” Because the communication of

ISIS violence and threats is part of the terrorist attack,

repeated postings and encouraged viewings of ISIS videos, as

effected by Google’s algorithms, is also part of the attack.

When a terrorist group blows up or shoots up or carves up

passengers on an airplane, railroad car or a subway car, they

do not do it merely to destroy property or injure people

involved in those bombings, shootings, and knifing attacks. 

Instead, they aim to create fear in the public so that people

will be afraid to use airplanes or railroad cars or subways or

any general public area to go about their business as usual. 

Publicizing the event is just as essential to terrorists’ success

as is the bombing, shooting, or knifing itself. So-called

“neutral” algorithms created by Facebook, Twitter, and

Google, are then transformed into deadly missiles of

destruction by ISIS, even though they were not initially

intended to be used that way. But once there is a consistent

stream of conduct by ISIS, it should be understood that

defendants who passively ignore that conduct can be held to

have intended the natural and probable consequences of their

actions. See Restatement (Second) of Torts, § 8A (1965).

Just as sharing revenue with ISIS is “dangerous to human

life,” Boim, 549 F.3d at 690 (citation omitted), so is

amplifying its message and encouraging recruitment to its

ranks. Perhaps even more so because unlike money, which
GONZALEZ V. GOOGLE 113

is fungible, YouTube has a virtual monopoly on hosting

extremist videos.10ISIS can get operating funds from a

variety of sources, but very few platforms have the

international network and infrastructure to which YouTube

has access. Imposing liability on social media platforms for

affirmatively amplifying ISIS’s message can therefore “cut

the terrorists’ lifeline.” See id. at 691.

B

Direct liability claims under the ATA require that

plaintiffs show they suffered injury “by reason of an act of

international terrorism.” 18 U.S.C. § 2333(a). The “by

reason of” phrasing has been understood to impose a

requirement of proximate causation. See, e.g., Fields v.

Twitter, 881 F.3d 739, 744 (9th Cir. 2018). To meet this

requirement, “a plaintiff must show at least some direct

relationship between the injuries that he or she suffered and

the defendant’s acts.” Id. at 744.

On my view of the case, the proximate cause issue must

be reached, and I believe that it is satisfied. The ATA’s

purpose in part is to provide a financial remedy to victims of

terrorism. Indeed, ATA’s legislative history demonstrates

Congress’s intent to authorize the “imposition of liability at

any point along the causal chain of terrorism.” S. Rep. No.

102-342, at 22 (1992) (referencing “the flow of money” to

terrorist groups).

10

See, e.g., Neima Jahromi, The Fight for the Future of YouTube,

NEWYORKER (July 8, 2019), https://www.newyorker.com/tech/annals-oftechnology/the-fight-for-the-future-of-youtube.
114 GONZALEZ V. GOOGLE

My view is consistent with our decision in Fields v.

Twitter. In Fields, we acknowledged that acts of international

terrorism are foreseeable consequences of financial support

to a terrorist organization, but we also noted that such

fungibility “does not relieve claimants of their burden to

show causation.” Id. at 749. Fields requires that a plaintiff

plausibly allege a “direct relationship between a defendant’s

act and [a plaintiff’s] injur[ies],” id. at 748, and that element

is met here because there is a sufficient nexus.

Plaintiffs allege that ISIS operatives involved in the Paris

Attacks posted links to ISIS YouTube videos. The sum of

Plaintiffs’ allegations demonstrate that the terrorists

responsible for Plaintiffs’ injuries used YouTube as an

integral component of recruiting, and that such recruiting is

necessary to carry out attacks at the scale of those in Paris.

Specifically, Plaintiffs allege that at least two of the

twelve ISIS terrorists who carried out the Paris Attacks,

Abaaoud and Laachraoui, used online social media platforms

to post links to ISIS recruitment YouTube videos and “jihadi

YouTube videos.” Plaintiffs allege that Abaaoud,

“considered the operational leader of the Paris Attack,” was

an active user of social media, including YouTube. In a

March 2014 ISIS YouTube video, “Abaaoud gave a

monologue (in French) recruiting jihadi fighters for ISIS.”

Plaintiffs also allege that at the time of the attacks these

two ISIS terrorists, who were “instrumental in the Paris

Attack,” were members of or at least involved with ISIS

networks in Belgium called “The Zerkani Network” and

Sharia4Belgium. The Belgian networks “used and relied on

social media to build and maintain connections with ISIS

recruits.” Plaintiffs allege that there was a pervasive network
GONZALEZ V. GOOGLE 115

of ISIS recruiters in Belgium, which has been called “the

epicenter of the Islamic State’s efforts to attack Europe.” 

Sharia4Belgium maintained several active YouTube

channels, still active at the time of the Paris Attacks, “which

it used to post sermons, speeches, news events, and other

materials to lure, recruit, and indoctrinate young Muslims to

travel to Syria and Iraq to join ISIS.” Plaintiffs allege that

there was significant overlap and coordination over time

between Sharia4Belgium and “The Zerkani Network.” 

Plaintiffs allege that Laachraoui was involved with

Sharia4Belgium at the time of the Paris Attacks, and his

social media accounts appear to show that he followed ISIS

social media and posted links to jihadi YouTube videos on

his own account.

Though Plaintiffs do not specifically allege how the

perpetrators of the Paris Attack were radicalized, such an

allegation is not necessary to plausibly state their claim. It is

enough that the complaint alleged that the perpetrators

themselves actively used YouTube to recruit others to ISIS,

gaining resources with which to plan and implement their

attacks; absent the participation of the social media

companies for their own profit-centered purposes, terrorist

groups like ISIS would not have these resources. 

Additionally, Plaintiffs alleged that “The Zerkani Network”

recruited one of the shooters, Abaaoud, “an active user of

social media, including YouTube,” and also alleged that the

network “used and relied on social media” to recruit,

permitting the inference that it is probable Abbaoud was

radicalized through social media. Viewing these allegations

in the light most favorable to the nonmoving party, as we

must, Campidoglio, 870 F.3d at 970, Plaintiffs have plausibly

alleged a sufficient nexus between Google’s conduct and the
116 GONZALEZ V. GOOGLE

Paris Attack victims’ injuries to satisfy a proximate cause

threshold standard.11

A possible analogy may help to illustrate how the social

media companies’ enhancement and spread of ISIS

propaganda promoting violence and seeking to convert

recruits has a direct relation to the damages caused here. 

Let’s assume that a person on one side of a crowded football

stadium fires a high-powered rifle aimed at a crowd on the

opposite side of the stadium, filled with people, though all

identities are unclear. Would the majority here say that the

rifle shot striking an unidentified viewer on the other side of

the stadium had no “direct relation” to the shooter and that

the shot did not proximately cause a resulting death? I think

not. There is direct relation between shooter and victim there

sufficient to satisfy Fields and there is similar direct relation

here between the challenged conduct of the Defendant social

media companies and the victims of ISIS violence in these

cases to say that the challenged conduct, if shown to be

illegal, was a proximate cause of damages.

11 It is worth noting that the contrary conclusion, espoused by the

majority, would put these and future plaintiffs in an untenable position. 

If we required plaintiffs to specify exactly how an individual terrorist

became radicalized without the benefit of discovery, then it is unlikely that

any such claims could go forward. At the motion to dismiss stage, with

notice pleading principles in mind, the Gonzalez Plaintiffs need only

plausibly allege “some direct relation” between the terrorist’s actions and

the social media companies’ conduct. See Fields, 881 F.3d at 749

(citation omitted). Here, Plaintiffs alleged that the perpetrator of the Paris

Attack was a member of a particular network that used social media to

recruit its members, and that the perpetrator himself was a regular user of

social media. Given that it is unlikely potential terrorists will announce

the avenues by which they were radicalized, such inferences are

permissible.
GONZALEZ V. GOOGLE 117

IV

I next turn to whether Plaintiffs have adequately alleged

claims against Google for secondary liability under JASTA. 

As with primary liability, the majority addressed only the

revenue sharing claims in its opinion, but I would hold that

for either set of claims, Plaintiffs have successfully stated a

claim for secondary liability.

Congress amended the ATA by enacting JASTA in 2016,

Pub. L. No. 144-222, 130 Stat. 854 (Sept. 28, 2016), which

extends liability to persons who aid and abet by providing

substantial assistance to persons who commit acts of

international terrorism, and those who conspire to commit

such acts. 18 U.S.C. § 2333(d)(2). Under § 2333(d)(2) of the

ATA, “liability may be asserted as to any person who aids

and abets, by knowingly providing substantial assistance” to

“the person who committed . . . an act of international

terrorism.” Id. I recognize the proper legal framework for

analyzing such claims as that described in Halberstam v.

Welch, 705 F.2d 472 (D.C. Cir. 1983). Like the majority, I

first conclude that the first two Halberstam factors have been

satisfied here: (1) the party whom the defendant aids

performed a wrongful act that caused an injury; and (2) the

defendant was “generally aware of his role as part of an

overall illegal or tortious activity at the time that he

provide[d] the assistance.” Halberstam, 705 F.2d at 477. For

the first element, the complaint plausibly alleges that the

Paris Attacks were “committed, planned, or authorized” by

ISIS, a designated terrorist organization. See 18 U.S.C.

§ 2333(d)(2). For the second element, I agree that Google

was “generally aware of its role in ISIS’s terrorist activities”

at the time it used its content-generating algorithms to send a

message to YouTube users and at the time it shared revenue
118 GONZALEZ V. GOOGLE

through AdSense. In both cases, Google was aware that it

assumed a role in ISIS’s terrorist activities. See Halberstam,

705 F.2d at 488; see also Linde, 882 F.3d at 329 (noting that

the element does not require a showing of “specific intent” as

in criminal aiding and abetting, nor does it require that the

defendant “knew of the specific attacks at issue”).

Unlike my colleagues, however, I also conclude that the

final element is met: the defendant “knowingly and

substantially assisted[ed] the principal violation.” 

Halberstam, 705 F.2d at 488. The majority acknowledges

that Google knowingly assisted the principal violation, but

denies that such assistance was “substantial.”12

I would hold that Google’s assistance via its contentgenerating algorithms and revenue sharing was both knowing

and substantial. I need not view the non-revenue sharing

claims and revenue sharing claims in isolation in this portion

of my analysis. Because I conclude that both sets of Plaintiffs

claims are not barred by Section 230, it is the sum of

Google’s conduct that must be considered when assessing

whether the assistance was substantial. The Halberstam court

identified six factors relevant to assessing whether the

substantial assistance component is satisfied: “(1) the nature

of the act encouraged, (2) the amount of assistance given by

12 It may be that what is considered by one person to be “substantial

assistance” is considered by anothermerely de minimis or inconsequential. 

But even if that is so, it would be a better procedure to leave that decision

to fairly selected jurors with proper jury instructions explaining the

“substantial assistance” element. But to me it is clear that ISIS could not

exist and renew itself without constant recruitment of foot soldiers to carry

out its violent missions, often at the cost of their own lives, so I regret that

I cannot persuade my colleagues here to adopt a more permissive standard

for substantial assistance.
GONZALEZ V. GOOGLE 119

defendant, (3) defendant’s presence or absence at the time of

the tort, (4) defendant’s relation to the principal,

(5) defendant’s state of mind, and (6) the period of

defendant’s assistance.” Linde, 882 F.3d at 329 (citing

Halberstam, 705 F.2d at 483–84).

Under the first factor, the Halberstam court emphasized

that the nature of the principal’s act “dictates what aid might

matter, i.e., be substantial.” 705 F.2d at 484. The remaining

factors must be viewed through this lens. ISIS’s long-running

and far-ranging terrorist campaign depends on the continued

provision of money and recruits. Google provided both. As

the majority acknowledges, financial support is “indisputably

important” to operating a terrorismcampaign, and any money

provided to the organization may aid its goals. See id. at 488;

Fields, 881 F.3d at 748. The majority also acknowledges, in

the context of reversing the district court’s dismissal of

Taamneh, that YouTube videos encourage ISIS’s terrorism

campaign—an enterprise that is “heavily dependent on social

media platforms to recruit members, to raise funds, and to

disseminate propaganda.” Google provided free exposure to

a dangerous organization, thereby facilitating ISIS’s ability to

reach and rouse prospective recruits. The Gonzalez

complaint alleges that ISIS through YouTube exaggerated its

territorial expansion by disseminating videos with maps

showing ISIS’s claims that it controlled certain regions where

other groups had pledged allegiance to ISIS. The fourth

factor also weighs in favor of recognizing substantial

assistance: defendant’s “relation” to the principal—or the

extent to which an entity “may possess greater powers of

suggestion.” YouTube’s role in cultivating extremist

behavior has been widely acknowledged and the platform

reaches a virtually unlimited number of potential recruits due

to the ubiquity of the Internet. The sixth factor, “duration of
120 GONZALEZ V. GOOGLE

the assistance provided,” concerns the length of time an

alleged aider and abettor has been involved with the

tortfeasor. See Halberstam, 705 F.2d at 484 (emphasis

omitted). Though the complaint in Gonzalez lacks specific

evidence about the length of time Google provided assistance

to ISIS, Plaintiffs allege the placement of ISIS recruiting

videos going back at least four years before the Paris Attacks,

in 2014. The complaint also alleged through news sources

that advertisements were placed on ISIS’s YouTube videos as

early as March 2015, three years before the Paris Attacks. I

would hold that years of hosting ISIS content and providing

it with a percentage of revenue is sufficient duration. Though

Plaintiffs do not allege that Google shared ISIS’s terrorist

goals, Halberstam also directs that under the fifth factor,

defendant’s “state of mind,” the court can consider the

duration factor because it “almost certainly affects the quality

and extent” of the aid, the amount of aid provided, and “it

may afford evidence of the defendant’s state of mind.” Id.

Even considering state of mind on its own and viewing that

factor in light of “the nature of the act encouraged,” see id.,

providing financial assistance and exposure to—to put it

mildly—a dangerous group, is sufficient for state of mind to

weigh against Google. As I see it, the conduct of Google,

Twitter, and Facebook as related to the risks of terrorist

attacks by ISIS, absent their more active review and policing

of sites, is either recklessly indifferent or willfully blind, as

they enjoy increased advertising revenue associated with

eyeballs on videos or posts about ISIS attacks.

Taken as true and viewed in the light most favorable to

Plaintiffs, I would hold that these allegations establish that

Google’s assistance was sufficiently “substantial” for

purposes of § 2333(d)(2). These same considerations apply
GONZALEZ V. GOOGLE 121

in all three cases, so in each I would hold there was

substantial assistance for purposes of § 2333(d)(2).

I add a brief comment about the Clayborn v. Twitter case. 

There the majority would uphold dismissal of the claims

because of its view that Plaintiffs do not plausibly allege that

ISIS “committed, planned, or authorized” the San Bernardino

attack, as is required under 18 U.S.C. § 2333(d)(2). The

majority relies on a Sixth Circuit decision, Crosby v Twitter,

Inc., 921 F.3d 617 (6th Cir. 2019), but its reasoning is not

persuasive and does not bind or even guide our circuit,

because there, the complaint produced “no allegations that

ISIS was involved with the Pulse Night Club shooting.” Id.

at 626. However, the record here is distinctly and plainly to

the contrary: The complaint expressly alleges that prior to or

during the attack, one of the perpetrators—Tashfeen

Malik—declared on her Facebook page the two shooters’

allegiance and loyalty to an ISIS leader. Two days after the

attack, ISIS issued a statement on a radio station claiming

responsibility for the attack. The FBI confirmed that one of

the shooters, a few years before the attack, had face-to-face

meetings with five people known to have “links to terrorism.” 

Further, Plaintiffs allege that FBI investigators found an

explosive device placed at the crime scene that was likely

intended to be detonated by the arrival of first responders. A

Department of Justice report described this as “a frequent,

well documented practice in international terrorism

incidents.” Importantly, FBI investigators explained that this

“terrorist tactic ha[d] been outlined in Al Qaeda’s Inspire

Magazine, as well as in ISIS’s Dabiq Magazine.” Plaintiffs

allege that these magazines are disseminated on Defendants’

platforms. Together, these allegations permit the fair

inference that the attack which was planned for at least one

year was inspired by—and implicitly authorized by—ISIS.
122 GONZALEZ V. GOOGLE

In my view, even if Malik had been “self-radicalized”

without direct communications or meetings with ISIS

operatives, Plaintiffs plausibly allege that the selfradicalization process included exposure to the violent

recruiting videos of ISIS, along with lectures from incendiary

advocates of violence against non-believers. According to

the complaint, in Senate Judiciary Committee testimony,

then-FBI Director James Comey described the pair as having

“consum[ed] poison on the internet” and been “radicalized to

jihadism and to martyrdom via social media platforms

available to them.” Finally, even assuming the perpetrators

had little advance connection with ISIS, well-established

principles of agency law illustrate that authorization can

occur not only by advance planning, but also by ratification. 

See Restatement (Third) of Agency, § 4.01(1) (1933)(defining

ratification as “the affirmance of a prior act done by another,

whereby the act is given effect as if done by an agent acting

with actual authority”).13 Because the San Bernardino

13 Contrary to the majority’s contention, there is support for applying

common law agency principles to secondary liability for acts of

international terrorism. For one thing, “statutes are presumed not to

disturb the common law, ‘unless the language of a statute [is] clear and

explicit for this purpose.’” State Eng’r of Nev. v. S. Fork Band of TeMoak Tribe of W. Shoshone Indians of Nev., 339 F.3d 804, 814 (9th Cir.

2003) (quoting Norfolk Redevelopment & Hous. Auth. v. Chesapeake &

Potomac Tel. Co. of Va., 464 U.S. 30, 35 (1983)). In my view, nothing in

the statute precludes consideration of common law principles. Second, the

Supreme Court has stated that apparent authority principles “ha[ve] long

been the settled rule in the federal system.” Am. Soc’y of Mechanical

Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 567 (1982). Section

2333(d)(2) assigns liability for injuries arising from acts of international

terrorism, where that act was authorized by a terrorist organization. See

18 U.S.C. § 2333(d)(2). In my view, asking whether a terrorist

organization authorized a particular terrorist act is properly viewed under
GONZALEZ V. GOOGLE 123

shooters pledged themselves to ISIS before or during the

attack, and an act is ratifiable “if the actor acted or purported

to act as an agent on the person’s behalf,” id. § 4.03, the

attack can be considered authorized by ISIS.

For the foregoing reasons, the complaint in Clayborn

makes allegations sufficient to state a claim for liability under

the ATA.

V

In my view, the claims asserted in the three complaints on

appeal should all be sustained and permitted to go forward in

discovery based on the statutory law standards above

discussed. But even if I am incorrect in my view of the

governing statutory law, those claims should be able to go

forward with complaint amendment based on a still extant

specialized federal common law in aid of national security

against terrorism. After the general common law regime of

Swift v. Tyson was overruled by Erie, a sphere of specialized

federal common law remains and could support Plaintiffs’

claims here. See e.g., 19 Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 4514 (3d ed. 2021). 

As the Wright & Miller treatise explains, “the federal

common law that has developed since Erie differs from the

federal general common law [rejected in] Swift v. Tyson

because it falls within an area of federal or national

competence.” Id. (footnote omitted); see also 17A Moore’s

Federal Practice, Civil § 124.40 (2020). Many federal court

precedents have applied these principles, which are

particularly well-suited when claims involve an area of

the common-law agency framework as a question of whether the

perpetrator was acting as an agent of the terrorist organization.
124 GONZALEZ V. GOOGLE

heightened federal interest, such as international terrorism, or

when gaps exist in a federal regulatory scheme. E.g., Boyle

v. United Techs. Corp., 487 U.S. 500, 507–08 (1988); Textile

Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448,

456–57 (1957); King Jewelry, Inc. v. Fed. Express Corp.,

316 F.3d 961, 964–65 (9th Cir. 2003).14

Also, our court should not ignore other potential areas of

human conduct that can be negatively impacted by an

unregulated social media regime, coupled with efforts by

groups hostile to the idea of American democracy to use

social media in order to divide or terrorize our public. Areas

of particular concern include impacts of social media in

realms such as election law, the laws governing public order

and protest, and even insurrection.

We should not of course ignore the tremendous, indeed

almost unquantifiable, benefits to the public from social

media. Social media permits friends to stay in contact, as for

example with a club or group from high school or college,

lets people make new friends, or even lets people see or be

exposed to new sights from different parts of the world. 

People met through social media, who may have different

interests, perspectives, and priorities from other social media

users, can in many cases enrich those users’ lives. Places

visited on the internet, often encouraged or directed through

social media, can serve the same benign function. But at the

14 Contrary to the majority’s contention, my view on when federal

common law may be created is narrow. Though the federal courts “are

not free to manufacture entirely new causes of action merely because the

political branches have not acted,” I believe that we can act where gaps

are present in an existing federal statutory scheme and the claim involved

is one of unique federal concern.
GONZALEZ V. GOOGLE 125

same time, benefit alone cannot end the inquiry. Social

media activities also carry with them some risks and

detriments to the public. For example, there is no doubt that

modern pharmaceutical drugs give benefits to the public that

were impossible at earlier times and are greatly valued by

those who use them. But drugs can also have harmful

impacts and, accordingly, they are regulated by the Food &

Drug Administration. Similarly, modern aircraft help people

move from one part of our world to another with great speed

and ease, but we regulate airlines through the Federal

Aviation Administration. One could go on and on as almost

every major activity in the modern world faces some type of

federal regulation.

This regulation of the social media companies would best

be examined by congressional committees with subpoena

power and the ability to create new regulatory laws if needed

and desirable. Or the government could create a new federal

agency or Board or add powers or some supplemental

standards to an existing federal agency, leaving the regulation

of social media in part to a federal executive agency that is

committed to bringing its technical expertise and knowledge

of any areas of specialized federal concerns such as

international terrorism and threats to democracy to bear on

this issue. A specialized federal agency could call witnesses

for testimony, assist meaningfully in a congressional task to

prepare appropriate legislative guidance or prohibitions, have

investigators to look into areas of concern, establish

regulatory standards, and possibly also include an arm to

enforce the law and its standards. See, e.g., Myers v. United

States, 272 U.S. 52, 129 (1926) (recognizing congressional

authority to create federal agencies and define their scope and

jurisdiction).
126 GONZALEZ V. GOOGLE

VI

These cases, and others like them pending in the federal

courts, try for basic justice, but there is a fundamental

question whether the federal courts are best suited to deliver

it. I conclude with the following thoughts.

First, it would be preferable if the political branches of

government, the legislature or the Executive Branch, would

seriously grapple with the issue of unregulated social media

power being used to amplify or to distort views asserted by

users, and sometimes even by hostile nations using social

media to wage asymmetric warfare or to impair democracy. 

But if Congress continues to sleep at the switch of social

media regulation in the face of courts broadening what

appears to have been its initial and literal language and

expressed intention under Section 230, then it must fall to the

federal courts to consider rectifying those errors itself by

providing remedies to those who are injured by dangerous

and unreasonable conduct.

Second, it would be preferable if the social media

companies monitored their own activities sufficiently to

protect the public, but in my view, to date they have not done

that. It was one thing, at the dawn of the Internet era, to give

protection to Internet companies to facilitate growth. But it

is quite another thing to provide broad immunity at a time

such as now when such companies are remarkably large and

with massive staffs and perhaps the best technical abilities. 

It is not realistic to anticipate that social media companies

will self-police adequately in the face of their incentives to

maximize profits by maximizing advertising revenues, which

means increasing the eyeballs directed to their websites. The

large corporations controlling the platforms at issue in these
GONZALEZ V. GOOGLE 127

appeals can instead be expected to act in their own best

financial interest, and to me, it makes absolutely no sense to

leave such decisions to the self-interested proclamations of

CEOs or other employees of the various social media

companies.15 Society for centuries has known that it is folly

to ask the fox to guard the henhouse.

Third, the problem with a lack of social media regulation

goes even beyond the dreadfully important subject of

terrorism. Indeed, in connection with 21st-century political

elections, some commenters have expressed concerns that

social media has the ability to distort and tribalize public

opinion, to spread falsehoods as well as truth, and to funnel

like-minded news reports to groups in a way that makes them

think there are “alternative facts” or “competing realities”

that exist, rather than recognize more correctly that there are

“truth” and “lies.”16

Fourth, to the extent any of our Ninth Circuit precedent

stands in the way of a sensible resolution of claims like those

presented on appeal here, where terrorist organizations like

ISIS have obviously played Google and YouTube like a

fiddle, then in my view we should take these or other related

cases en banc to give a full review.

15 E.g., 1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES

OF THE WEALTH OF NATIONS 13 (1776) (“It is not from the benevolence

of the butcher, the brewer, or the baker that we expect our dinner, but from

their regard to their own interest.”).

16

See Ross Douthat, Why Do So Many Americans Think

the Election Was Stolen?, N.Y. TIMES (Dec. 5, 2020),

https://www.nytimes.com/2020/12/05/opinion/sunday/trump-electionfraud.html?smid=tw-share.
128 GONZALEZ V. GOOGLE

Fifth, because the issues are difficult and only the

Supreme Court can speak with authority ultimately on federal

law, it would be desirable for the Supreme Court to take up

the subject of Section 230 immunity and perhaps any related

First Amendment issues, to the extent claims relating to

terrorist speech are properly considered under that

framework. Justice Oliver Wendell Holmes, Jr. made famous

and enshrined in our law the idea that: “The life of the law

has not been logic, it has been experience.” OLIVER

WENDELL HOLMES, JR., THE COMMON LAW, Lecture I

(1881). But when almost all claims against social media

companies are dismissed at the outset because of an

overbroad view of Section 230 immunity, how is society to

develop the experience that can guide its development of law

in a sensible way that protects people from undue harm? 

Justice Holmes also developed the idea that speech should not

be constrained absent “clear and present danger,” see Schenck

v. United States, 249 U.S. 47 (1919). To some degree this

test still resounds in our First Amendment law. See United

States v. Alvarez, 617 F.3d 1198, 1214 (9th Cir. 2010). A

variation on this view culminated in Brandenburg v. Ohio,

395 U.S. 444 (1969), where the Supreme Court suggested that

imminent lawless action was necessary before speech should

be constrained. But perhaps given the current state of society,

and the catastrophic dangers to the public that can be posed

by terrorist activities, public safety may require that speech

be limited when it poses a clear and increasing or gathering

danger, rather than only “imminent” danger as reflected in

Brandenburg, which I consider the Supreme Court’s last

word on this subject.
GONZALEZ V. GOOGLE 129

I also note that Oliver Wendell Holmes, Jr.’s famous pen

pal and intellectual collaborator, Sir Frederick Pollock,17in

his beginning primer of the law of torts, suggested that a

principal force underlying all the varied types of tort cases

was the desire of courts to provide a doctrinal basis for

remedy in the case of injuries from harmful and unreasonable

conduct. Pollock suggested that a “tort is an act or omission

(not merely the breach of a duty arising out of a personal

relation, or undertaken by contract) which is related to harm

suffered by a determinate person in one of the following

ways.” See SIRFREDERICK POLLOCK,THELAWOFTORTS: A

TREATISEONTHEPRINCIPLESOFOBLIGATIONSARISINGFROM

CIVIL WRONGS IN THE COMMON LAW 20 (4th ed. 1895). 

Among those ways a person can be harmed were these two,

which are pertinent in assessing whether Plaintiffs’ claims

can be asserted as part of a federal common law: “(c) it may

be an act or omission causing harm which the person so

acting or so omitting did not intend to cause, but might and

should with due diligence have foreseen and prevented,” and

“(d) it may in special cases consist in not avoiding or

preventing that which the party was bound, absolutely or

within limits to avoid or prevent.” Id. Here, it could be

expected that through federal common law development or

statutory positive law, the social media companies will be

held to some reasonable standard of conduct when they have

17 See Oliver Wendell Holmes Jr. & Sir Frederick Pollock,

Holmes–Pollock Letters: The Correspondence of Mr Justice Holmes and

Sir Frederick Pollock, 1874–1932 (2d ed. 1961).
130 GONZALEZ V. GOOGLE

failed to regulate their own actions in the interests of the

public.18

As a matter of federal common law, I would hold that

when social media companies in their platforms use systems

or procedures that are unreasonably dangerous to the

public—as in the case where their systems line up repeated

messages in aid of terrorists like ISIS—or when they omit to

act to avoid harm when omitting the act is unreasonably

dangerous to the public—as in the case where they fail to

review and self-regulate their websites adequately to notice

and remove propaganda videos from ISIS that are likely to

cause harm—then there should be a federal common law

claim available against them. Consider the most widely used

standard for products liability cases. See Restatement

(Second) of Torts, § 402A (1965). This suggests that

manufacturers are responsible in tort if they make

unreasonably dangerous products that cause individual or

social harm. Section 402A states: “One who sells any

product in a defective condition unreasonably dangerous to

the user or consumer or to his property is subject to liability

for physical harm thereby caused” to the user or a third party. 

Id. Here and similarly, social media companies should be

viewed as making and “selling” their social media products

through the device of forced advertising under the eyes of

users. Viewed in this light, they should be tested under a

federal tort principle with a standard similar to and adapted

from this Restatement language under a federal common law

18 Developing federal common law on these issues will require the

diligent and combined efforts of the federal courts and of legal scholars. 

See, e.g., Hon. Wade H. McCree, Jr., The Annual John Randolph Tucker

Lecture, Partners in a Process: The Academy and the Courts, 37 WASH.

& LEE. L. REV. 1041 (1981).
GONZALEZ V. GOOGLE 131

development. If social media companies use “neutral”

algorithms that cause unreasonably dangerous consequences,

under proper standards of law with limiting jury instructions,

they might be held responsible. Developing a federal

common law standard would be superior to merely dismissing

all claims against social media companies based on an overbroad interpretation of Section 230 delivering a blanket

immunity, which in my view is inconsistent with

congressional intent and detrimental to the interests of the

general public.
132 GONZALEZ V. GOOGLE

ATTACHMENT A
1

KATZMANN, Chief Judge, concurring in part and dissenting in part:ȱȱ

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 friendȬȱand contentȬ

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

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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 50Ȭ54. 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)Ȭ

(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.”ȱȱ

However, as detailed post, § 230 was designed as a privateȬsectorȬdriven

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 22,045Ȭ46 (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 truly
2

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.ȱȱ

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

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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 criminalȬlaw 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).ȱȱ

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.ȱȱ

The AntiȬTerrorism 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, Facebook
4

unleashes its algorithms to generate friend, group, and event suggestions based

on what it perceives to be the user’s interests. Id. at 345Ȭ46 ¶¶ 608Ȭ14. 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 HamasȬrelated 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 352Ȭ58 ¶¶ 646Ȭ77. 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 possibility
5

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.

104Ȭ104, § 509, 110 Stat. 56, 56, 137Ȭ39; 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 857Ȭ58. Of the myriad issues the

emerging Internet implicated, Congress tackled only one: the ease with which the
6

Internet delivers indecent or offensive material, especially to minors. See

Telecommunications Act of 1996, tit. V, subtit. A, 110 Stat. at 133Ȭ39. 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 (RȬCalifornia) and Ron Wyden (DȬOregon)

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 22,044Ȭ45. Likewise, Congressman Wyden said: “We are all against smut and

pornography, and, as the parents of two small computerȬliterate children, my wife

and I have seen our kids find their way into these chat rooms that make their

middleȬaged parents cringe.” Id. at 22,045.ȱȱ

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 obscene
8

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 CoxȬWyden Amendment therefore sought to empower interactive computer

service providers to selfȬregulate, and to provide tools for parents to regulate,

children’s access to inappropriate material. See S. Rep. No. 104Ȭ230, 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. StrattonȬOakmont, 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

StrattonȬOakmont 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). CoxȬWyden was designed, in large

part, to remove that disincentive. See S. Rep. No. 104Ȭ230, at 194.

The House having passed the CoxȬWyden 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 133Ȭ39; Reno, 521 U.S. at 858 n.24.2 The Supreme Court promptly struck

down two major provisions of the Exon Amendment as unconstitutionally

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

2 It helped that the CoxȬWyden Amendment exempted from its deregulatory

regime the very provisions that the Exon Amendment strengthened, see

Telecommunications Act of 1996, §§ 502, 507Ȭ508, 509(d)(1), 110 Stat. at 133Ȭ39, 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 StrattonȬOakmont 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 StrattonȬ

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 goodȬfaith 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. 104Ȭ230,

at 194. The “policy” section of § 230’s text reflects this goal. See 47 U.S.C.

§ 230(b)(3)Ȭ(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

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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 StrattonȬOakmont 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. 104Ȭ230, 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).ȱȱ

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

StrattonȬOakmont 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

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

4 This point—that Congress chose broaderlanguage 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 to
13

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 30Ȭ

31, 33Ȭ34, 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).

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

overrule StrattonȬOakmont, 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—whetherto establish the claim the court

must necessarily view the defendant, not as a publisher in the abstract, but rather

as the publisher of that thirdȬparty 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 thirdȬparty 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 a
15

third party’s content. Cf. Oberdorf v. Amazon.com Inc., No. 18Ȭ1041, 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 or
16

withdraw that ad) would fail underthe CDA not because newspapers traditionally

publish classified ads, but rather because such a claim would necessarily treat the

newspaper as the publisher of the adȬmaker’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).ȱȱ

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 friendȬȱand contentȬ

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 thirdȬparty 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

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

5 Many of Facebook’s algorithms mentioned in the PSAC, such as its thirdȬparty

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 realȬworld 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 ‘butȬfor’ test that would

provide immunity . . . solely because a cause of action would not otherwise have

accrued but for the thirdȬparty 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 thirdȬparty 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.ȱȱ

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 ¶¶ 612Ȭ13. 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

orimproper 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 thirdȬparty 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 realȬworld (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 of
20

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] thirdȬparty

content.” HomeAway.com, 918 F.3d at 682. Here, too, the claims regarding the
21

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 deȬpublish 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/2018Ȭ05Ȭ
24

10/terroristsȬcreepȬontoȬfacebookȬasȬfastȬasȬitȬcanȬshutȬthemȬdown. 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 AutoȬGenerates

Videos Celebrating Extremist Images, Assoc. Press (May 9, 2019),

http://apnews.com/f97c24dab4f34bd0b48b36f2988952a4. Those whose accounts

are removed often pop up again under different names or with slightly different

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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/2018Ȭ03Ȭ20/israelȬwarnsȬtwitterȬofȬlegalȬ

stepsȬoverȬincitementȬtoȬterrorism; Mike Isaac, Twitter Steps Up Efforts to Thwart

Terrorists’ Tweets, N.Y. Times (Feb. 5, 2016), http://www.nytimes.com/2016/02/06/

technology/twitterȬaccountȬsuspensionsȬterrorism.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/youtubeȬremoveȬextremistȬvideos.html.
25

language in their profiles, playing a perverse and deadly game of WhackȬaȬMole

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.ȱȱ

Take Facebook.ȱȱAs plaintiffs allege, its friendȬsuggestion 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 proȬIS accounts as recommended friends after friending just one proȬIS

account.” Waters & Postings, supra, at 78. More disturbingly, the other “received

an influx of PhilippinesȬbased IS supporters and fighters as recommended friends

after liking several nonȬextremist news pages about Marawi and the Philippines

during IS’s capture of the city.” Id. News reports indicate that the friendȬ

suggestion feature has introduced thousands of IS sympathizers to one another.

See Martin Evans, Facebook Accused of Introducing Extremists to One Another Through
26

‘Suggested Friends’ Feature, The Telegraph (May 5, 2018),

http://www.telegraph.co.uk/news/2018/05/05/facebookȬaccusedȬintroducingȬ

extremistsȬoneȬanotherȬsuggested.

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 algorithmicallyȬcreated 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/facebookȬ

enabledȬadvertisersȬtoȬreachȬjewȬhaters. 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 antiȬSemites.” Id.ȱȱ

That’s not all. Another Facebook algorithm autoȬgenerates 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 alȬQaida,

alȬShabab, and IS have such autoȬcreated pages, allowing them to recruit the

pages’ followers. Id. The page for alȬQaida 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 readyȬmade propaganda clip, complete with a thankȬyou

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 CDAȬdriven, handsȬoff 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 Presidential
28

Election 24Ȭ26, 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 25Ȭ26. 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 26Ȭ28. 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/threatȬ

intelligence/twitterbotsȬpropagandaȬdisinformation. 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 realȬworld 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 bestȬdocumented

example of foreign meddling through social media, it is not the only one. Federal
29

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/pressȬreleases/item/1915ȬjointȬstatementȬfromȬtheȬodniȬdojȬfbiȬ

andȬdhsȬcombatingȬforeignȬinfluenceȬinȬuȬsȬelections. News reports also suggest

that China targets stateȬsponsored 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/chinaȬfacebook.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, Radical
30

Ideas Spread Through Social Media. Are the Algorithms to Blame?, PBS (Mar. 28, 2019),

https://www.pbs.org/wgbh/nova/article/radicalȬideasȬsocialȬmediaȬalgorithms.

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 MassiveȬScale 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/facebookȬmoderators.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/howȬyoutubeȬdrivesȬ

viewersȬtoȬtheȬinternetsȬdarkestȬcornersȬ1518020478. YouTube has fineȬtuned 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 farȬright 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/youtubeȬradical.html.ȱȱ

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/2017Ȭ03Ȭ20/isȬ

socialȬmediaȬtoȬblameȬforȬpoliticalȬpolarizationȬinȬamerica. 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 more
32

open” to those concepts. Max Fisher & Amanda Taub, How Everyday Social Media

Users Become RealȬWorld Extremists, N.Y. Times (Apr. 25, 2018),

http://www.nytimes.com/2018/04/25/world/asia/facebookȬextremism.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

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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/socialȬ

mediaȬviolenceȬyoungȬpeopleȬgangsȬsayȬexperts; Kevin Roose, A Mass Murder of, and for,

the Internet, N.Y. Times (Mar. 15, 2019), https://www.nytimes.com/2019/03/15/

technology/facebookȬyoutubeȬchristchurchȬshooting.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/facebookȬyoutubeȬtwitterȬamplifiedȬvideoȬchristchurchȬmosqueȬshooting;

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/robertȬbowersȬpittsburghȬsynagogueȬshooter.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 offȬsite connections.8

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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/theȬintersect/wp/2014/10/30/aȬcompleteȬhistoryȬofȬtheȬriseȬandȬfallȬandȬ

reincarnationȬofȬtheȬbelovedȬ90sȬchatroom; see also Then and Now: A History of Social

Networking Sites, CBS News, http://www.cbsnews.com/pictures/thenȬandȬnowȬaȬhistoryȬ

ofȬsocialȬnetworkingȬsites (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 academy9 and in the policy

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

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 Isnȇt Just Backpage:

Revising Section 230 Immunity, 2 Geo. L. Tech. Rev. 453, 454Ȭ55 (2018); Jeff Kosseff,

Defending Section 230: The Value of Intermediary Immunity, 15 J. Tech. L. & Polȇy 123, 124

(2010); Daniela C. Manzi, Managing the Misinformation Marketplace: The First Amendment

and the Fight Against Fake News, 87 Fordham L. Rev. 2623, 2642Ȭ43 (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, 690Ȭ91 (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,

182Ȭ86 (2018); Nicole Phe, Note, Social Media Terror: Reevaluating Intermediary Liability
35

community10 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 friendȬȱ and contentȬsuggestion algorithms from judicial

scrutiny. I therefore must in part respectfully dissent, as I concur in part.

ȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

Under the Communications Decency Act, 51 Suffolk U. L. Rev. 99, 126Ȭ30 (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/howȬsocialȬnetworksȬsetȬtheȬ

limitsȬofȬwhatȬweȬcanȬsayȬonline; 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/onlineȬindustryȬimmunityȬsectionȬ230Ȭ1552241; Mark Sullivan, The

1996 Law That Made the Web Is in the Crosshairs, Fast Co. (Nov. 29, 2018),

http://www.fastcompany.com/90273352/maybeȬitsȬtimeȬtoȬtakeȬawayȬtheȬoutdatedȬ

loopholeȬthatȬbigȬtechȬexploits; cf. Darrell M. West & John R. Allen, How Artificial

Intelligence Is Transforming the World, Brookings (Apr. 24, 2018),

http://www.brookings.edu/research/howȬartificialȬintelligenceȬisȬtransformingȬtheȬ

world (“The malevolent use of AI exposes individuals and organizations to unnecessary

risks and undermines the virtues of the emerging technology.”).