Digital Rights, National Security, Privacy, Data Protection and Retention
FBI v. Fazaga
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The Supreme Court remanded the petitioner’s case back to Ninth Circuit for consideration of the complaint in light of its ruling in the Twitter v. Taamneh case. In the instant case, a series of coordinated attacks were carried out by ISIS terrorists in Paris, France, resulting in the deaths of 130 individuals, including Nohemi Gonzalez, a 23-year-old U.S. citizen. Following the attack, Gonzalez’s parents and brothers filed a lawsuit against Google, LLC, citing violations of 18 U.S.C. §§2333(a) and (d)(2). The Court held that the petitioners were unable to establish Google’s direct or secondary liability in carrying out the terrorist attack.
In 2015, a series of coordinated attacks carried out by ISIS terrorists took place in Paris, France, resulting in the deaths of 130 individuals, including Nohemi Gonzalez, a 23-year-old U.S. citizen. Following the attack, Gonzalez’s parents and brothers (the petitioners) filed a lawsuit against Google, LLC, (the respondents) citing violations of 18 U.S.C. §§2333(a) and (d)(2).
18 U. S. C. §2333(a) provides: “Any national of the United States 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, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. Section 2333(d)(2) provides: “In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U. S. C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”
The lawsuit alleged that Google was directly and secondarily responsible for the terrorist attack that claimed Gonzalez’s life [p. 1]. In terms of secondary liability, the plaintiffs claimed that Google aided and abetted ISIS and conspired with the terrorist organization. The allegations primarily revolved around the use of YouTube, which is owned and operated by Google, by ISIS and its supporters.
The District Court dismissed the petitioners’ complaint due to the failure to state a claim but gave them the option to amend their complaint. Instead of amending, the petitioners chose to appeal, and the Ninth Circuit upheld the dismissal in a combined opinion that also addressed the case of Twitter, Inc. v. Taamneh [p. 2]. The Ninth Circuit determined that most of the petitioners’ claims were prohibited by Section 230 of the Communications Decency Act of 1996, except for the claims related to Google’s alleged approval of ISIS videos for advertising purposes and revenue sharing with ISIS through YouTube. The Ninth Circuit ruled that these particular claims were not protected by Section 230, but they still found that the petitioners’ allegations did not present a viable claim. The petitioners appealed to the Supreme Court which granted certiorari to review the Ninth Circuit’s interpretation and application of Section 230 [p. 2].
The judgment of the Supreme Court of the United States was delivered unanimously in the present case. The central issue for consideration was whether the respondents could be held liable under 18 U.S.C. §§2333(a) and (d)(2) for aiding and abetting the terrorist attack in Paris. While relying on Twitter v Taamneh, Case No. 21–1496 (2023), to discuss the issue of secondary liability, the Court held that the petitioners had failed to state a claim for aiding and abetting under §2333(d)(2).
While discussing the question of direct liability, the Supreme Court affirmed the Ninth Circuit decision by stating that petitioners failed to plausibly allege that “Google reached an agreement with ISIS,” as required for conspiracy liability, and that Google’s acts were “intended to intimidate or coerce a civilian population, or to influence or affect a government,” as required for a direct-liability claim under §2333(a). The Court found it sufficient to acknowledge that much (if not all) of the petitioners’ complaint seems to fail under either its decision in Twitter or the Ninth Circuit’s unchallenged holdings.
Therefore, the Court declined to address the application of §230 to a complaint that appeared to state little, if any, plausible claim for relief. Instead, the Court remanded the case for the Ninth Circuit to consider the petitioners’ complaint in light of its decision in Twitter v Taamneh.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this succinct decision, the Supreme Court expanded freedom of expression by limiting the scope of intermediaries’ responsibilities in the context of aiding and abetting terrorism, as it was established in the case of Twitter v. Taamneh. Following the Court’s reasoning, it seems to be unlikely for platforms to be held responsible for acts of terrorism committed by their users, taking into consideration the platforms’ passive role in relation to their many users.
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