Thursday, February 1, 2018
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Ninth Circuit:
Can’t Blame Twitter for Fatal Shooting By ISIS Agent in Jordan
Families of Two Americans Slain in Jordan by Gunman Sought to Impose Liability on Social Networking Service, Claiming Terrorist Organization Used It for Recruiting
By a MetNews Staff Writer
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—AP Ambulances leave the King Abdullah bin Al Hussein Training Center where a Jordanian policeman went on a shooting spree in Jordan, on Nov. 9, 2015, killing two Americans, a South African and a Jordanian and wounding two Americans and three Jordanians. The Ninth U.S. Circuit Court of Appeals yesterday held that the families of the two Americans are not liable for the wrongful deaths, rejecting the theory that the deaths would not have occurred had it not been for active recruitment efforts via Twitter. |
Twitter cannot be held liable for the deaths in Jordan of two American government contractors in an attack by ISIS, the Ninth U.S. Circuit Court of Appeals held yesterday, rejecting the theory that the networking service enabled recruitment by the terrorist organization by assigning it accounts.
“Though we do not diminish the tragedy of the events that led to this lawsuit,” the opinion says, “we hold that Plaintiffs-Appellants have not pleaded that Twitter’s provision of accounts and messaging services to ISIS had any direct relation to the injuries Plaintiffs-Appellants suffered.”
The opinion affirms the dismissal of an action by the families of the two men brought under the Anti-Terrorism Act (“ATA”). District Judge William Horsley Orrick of the Northern District of California found that the second amended complaint did not meet the act’s requirement of showing that the harm was caused “by reason of” the defendant’s conduct.
The appellants argued that there was causation in that ISIS had at least 79 accounts, was actively engaging in recruitment through those accounts, and had attracted “more than 30.000 foreign recruits” through use of those accounts.
Smith’s Opinion
Circuit Judge Milan D. Smith Jr. wrote:
“The gravamen of the parties’ disagreement is the scope of the ATA’ ‘by reason of’ requirement. Appropriately, the parties do not dispute that the ATA’s ‘by reason of’ language requires a showing of proximate causation. Rather, they disagree concerning what such a showing entails. Plaintiffs-Appellants contend that proximate causation is established under the ATA when a defendant’s ‘acts were a substantial factor in the sequence of responsible causation,’ and the injury at issue ‘was reasonably foreseeable or anticipated as a natural consequence.’…Twitter argues that the standard is higher, requiring Plaintiffs-Appellants to show that Twitter’s conduct ‘led directly’ to their injuries. The district court declined to decide the question because it concluded that Plaintiffs-Appellants’ pleading was insufficient under either standard. We conclude that Twitter has the better of the argument, and hold that to satisfy the ATA’s ‘by reason of’ requirement, a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant’s acts.”
The words “by reason of,” he noted, are used in the Sherman Act, Clayton Act, and Racketeer Influenced and Corrupt Organizations Acts. Smith said it is reasonable to assume that in enacted the ATA, Congress intended that the same “direct relationship” standard—not mere “foreseeability”—be employed as it has been in connection with those earlier acts.
Congressional Intent
“Communication services and equipment are highly interconnected in modem economic and social life, such that the provision of these services and equipment to terrorists could be expected to cause ripples of harm to flow far beyond the defendant’s misconduct,” Smith said, declaring that nothing in the ATA “indicates that Congress intended to provide a remedy to every person reached by these ripples.”
He added:
“Moreover, we are troubled by the seemingly boundless litigation risks that would be posed by extending the ATA’s bounds as far as foreseeability may reach.”
The case is Fields v. Twitter, No. 16-17165.
Police Training Facility
The action was brought by the families of former Deputy Sheriff Lloyd “Carl” Fields Jr.. and former policeman James Damon Creach who were engaged in training law enforcement officers at the International Police Training Center. One of the students, a Jordanian police captain, on Nov. 9, 2015, entered the facility without being searched and opened fire, slaying Fields and Creach, as well as a South African and three Jordanians.
He was himself fatally shot.
Twitter announced on Sept. 19, 2017 it had suspended 299,649 accounts in the first six months of the year based on pro-terrorism content, and had suspended 935,897 accounts in the period from Aug. 1, 2015 through June 30, 2017.
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