Gonzalez v. Google LLC

2 F.4th 871

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.

Mehier Taamneh; Lawrence Taamneh; Sara Taamneh; Dimana Taamneh, Plaintiffs-Appellants,

v.Twitter, Inc. ; Google LLC; Facebook, Inc., Defendants-Appellees.

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. 18-16700

No. 18-17192

No. 19-15043

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 26, 2020 San Francisco, California

Filed June 22, 2021

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.

Before: Ronald M. Gould, Marsha S. Berzon, and Morgan Christen, Circuit Judges.

Concurrence by Judge Berzon ;

Partial Concurrence and Partial Dissent by Judge Gould

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 to § 2333(a) of the ATA, and secondarily liable for conspiring with, and aiding and 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-and-abetting 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 to plausibly plead their claim for aiding-and-abetting liability. We therefore affirm the 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—Abdelhamid Abaaoud, Brahim Abdeslam, 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, 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 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 matched with 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 ISIS-affiliated 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 ISIS-related 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...