twitter – Page 2 – Attorney Evan Brown

January 31, 2018 Section 230, Social Media

Ninth Circuit upholds decision in favor of Twitter in terrorism case

Tamara Fields and Heather Creach, representing the estates of their late husbands and joined by Creach’s two minor children, sued Twitter, Inc. Plaintiffs alleged that the platform knowingly provided material support to ISIS, enabling the terrorist organization to carry out the 2015 attack in Jordan that killed their loved ones. The lawsuit sought damages under the Anti-Terrorism Act (ATA), which allows U.S. nationals injured by terrorism to seek compensation.

Plaintiffs alleged that defendant knowingly and recklessly provided ISIS with access to its platform, including tools such as direct messaging. Plaintiffs argued that these services allowed ISIS to spread propaganda, recruit followers, raise funds, and coordinate operations, ultimately contributing to the attack. Defendant moved to dismiss the case, arguing that plaintiffs failed to show a direct connection between its actions and the attack. Defendant also invoked Section 230 of the Communications Decency Act, which shields platforms from liability for content created by users.

The district court agreed with defendant and dismissed the case, finding that plaintiffs had not established proximate causation under the ATA. Plaintiffs appealed, but the Ninth Circuit upheld the dismissal. The appellate court ruled that plaintiffs failed to demonstrate a direct link between defendant’s alleged support and the attack. While plaintiffs showed that ISIS used defendant’s platform for various purposes, the court found no evidence connecting those activities to the specific attack in Jordan. The court emphasized that the ATA requires a clear, direct relationship between defendant’s conduct and the harm suffered.

The court did not address defendant’s arguments under Section 230, as the lack of proximate causation was sufficient to resolve the case. Accordingly, this decision helped clarify the legal limits of liability for platforms under the ATA and highlighted the challenges of holding technology companies accountable for how their services are used by third parties.

Three Reasons Why This Case Matters:

Sets the Bar for Proximate Cause: The ruling established that a direct causal link is essential for liability under the Anti-Terrorism Act.
Limits Platform Liability: The decision underscores the difficulty of holding online platforms accountable for misuse of their services by bad actors.
Reinforces Section 230’s Role: Although not directly addressed, the case highlights the protections Section 230 offers to tech companies.

Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir. 2018)

August 4, 2017 Copyright

Toilet paper bearing Trump tweets a copyright problem?

This report from Fox News discusses toilet paper available via Amazon printed with Donald Trump tweets. It raises the question of whether the president would be able to stop the sale of this product and seek damages for copyright infringement. Assuming the tweets are printed without his permission, could he make a claim?

There are a number of issues to consider here.

The first is the long-kicked-around question of whether tweets are copyrightable. In other words, do they contain enough and the kind of content to rise to the level of originality that copyright law requires? One would be hard pressed to argue that a tweet not comprised just of facts is outside copyright’s protection. Though only 140 characters, there is plenty of room for originality. If a tweet is not copyrightable, then neither would The Red Wheelbarrow.

The second issue is whether the tweets may not be subject to copyright because they are a work of the federal goverment. Section 105 of the Copyright Act says that “[c]opyright protection . . . is not available for any work of the United States Government.” This splits out into a couple of other issues. Are the tweets from when their author was president? And even if they are, would tweets from a personal account be a “work of the United States Government”?

The article gives us an answer to the first question, which postpones the opportunity to answer the second one. The tweets are from before he became president. So there does not appear to be much standing in the way of the Donald fighting these on copyright grounds if he were to so choose.

But not so fast. What about fair use? Obviously the nature of the product is a commentary on the content printed upon it.

What a crappy situation. Maybe Amazon will just flush this product from its site before we get there.

August 12, 2016 Section 230, Social Media

Twitter avoids liability in terrorism lawsuit

Update 1/31/2018: The Ninth Circuit upheld the court’s decision discussed below.

The families of two U.S. contractors killed in Jordan sued Twitter, accusing the platform of providing material support to the terrorist organization ISIS. Plaintiffs alleged that by allowing ISIS to create and maintain Twitter accounts, the company violated the Anti-Terrorism Act (ATA). Plaintiffs further claimed this support enabled ISIS to recruit, fundraise, and promote extremist propaganda, ultimately leading to the deaths of the contractors. The lawsuit aimed to hold Twitter responsible for the actions of ISIS and to penalize it for facilitating the organization’s digital presence.

Twitter moved to dismiss, arguing that the claims were barred under the Communications Decency Act (CDA) at 47 U.S.C. §230. Section 230 provides immunity to internet platforms from being treated as the publisher or speaker of content posted by third parties. The court had to decide whether Twitter’s role in allowing ISIS to use its platform made it liable for the consequences of ISIS’s acts.

The court dismissed the case, finding that Section 230 shielded Twitter from liability. The court ruled that plaintiffs’ claims attempted to treat Twitter as the publisher of content created by ISIS, which is precisely the type of liability Section 230 was designed to prevent. The court also concluded that plaintiffs failed to establish a plausible connection, or proximate causation, between Twitter’s actions and the deaths. Importantly, in the court’s view, plaintiffs could not demonstrate that ISIS’s use of Twitter directly caused the attack in Jordan or that the shooter had interacted with ISIS content on the platform.

The court further addressed plaintiffs’ argument regarding private messages sent through Twitter’s direct messaging feature. It ruled that these private communications were also protected under Section 230, as the law applies to all publishing activities, whether public or private.

Three reasons why this case matters:

Expanding the scope of Section 230: The case reinforced the broad immunity provided to tech companies under Section 230, including their handling of controversial or harmful content.
Clarifying proximate causation in ATA claims: The ruling highlighted the challenges of proving a direct causal link between a platform’s operations and acts of terrorism.
Balancing tech innovation and accountability: The decision underscored the ongoing debate about how to balance the benefits of open platforms with the need for accountability in preventing misuse.

Fields v. Twitter, Inc., 200 F. Supp. 3d 964 (N.D. Cal., August 10, 2016).

January 9, 2015 Anonymity, Defamation

Court orders Twitter to identify anonymous users

Defamation plaintiffs’ need for requested information outweighed any impact on Doe defendants’ free speech right to tweet anonymously.

Plaintiff company and its CEO sued several unknown defendants who tweeted that plaintiff company encouraged domestic violence and misogyny and that the CEO visited prostitutes. The court allowed plaintiffs to serve subpoenas on Twitter to seek the identity of the unknown Twitter users. Twitter would not comply with the subpoenas unless and until the court ruled on whether the production of information would violate the users’ First Amendment rights.

The court ruled in favor of the plaintiffs and ordered Twitter to turn over identifying information about the unknown users. In reaching this decision, the court applied the Ninth Circuit analysis for unmasking anonymous internet speakers set out in Perry v. Schwarzenegger, 591 F.3d. 1126 (9th Cir. 2009). The court found that the requested discovery raised the possibility of “arguable first amendment infringement,” so it continued its analysis by weighing the balance between the aggrieved plaintiffs’ interests with the anonymous defendants’ free speech rights.

The Perry balancing test places a burden on the party seeking discovery to show that the information sought is rationally related to a compelling governmental interest and that the requested discovery is the least restrictive means of obtaining the desired information.

In this case, the court found that the subpoenas were narrowly tailored to plaintiffs’ need to uncover the identities of the anonymous defendants so that plaintiffs could serve process. It also found that the “nature” of defendants’ speech weighed in favor of enforcing the subpoena. The challenged speech went “beyond criticism into what appear[ed] to be pure defamation, ostensibly unrelated to normal corporate activity.”

Music Group Macao Commercial Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015).

August 24, 2013 Defamation

Lawyer’s tweet about case was not defamatory

Plaintiff sued an attorney and his law firm for defamation over a tweet the attorney posted about one of his cases that read as follows:

[Plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees. The RICO suit was not frivolous. The 500K lawsuit is frivolous, however, so buyer be wary.

(Defenant used Twitlonger to account for the number of characters over 140.) The trial court dismissed the defamation lawsuit on an anti-SLAPP motion. Plaintiff sought review with the Court of Appeal of California. The court affirmed the dismissal.

It found that the tweet was nonactionable opinion, holding that “deprecatory statements regarding the merits of litigation are ‘nothing more than the predictable opinion of one side to the lawsuit’ and cannot be the basis for a defamation claim.” Further, insofar as the tweet asserted “[plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees,” the attorney was stating his subjective opinion with respect to corporate governance at the plaintiff company. Accordingly, the tweet was not actionable.

Getfugu, Inc. v. Patton Boggs LLP, 2013 WL 4494952 (Cal.App. 2 Dist. August 21, 2013)

June 28, 2012 Uncategorized

Social media angle on SCOTUS healthcare decision

I’ve seen three interesting social media issues arise in the hours following the Supreme Court’s decision this morning on Obamacare:

1. Premature enunciation and the ensuing bruhaha

In a rush to report on the extremely complex decision, CNN’s website briefly stated that the healthcare law had been overturned. [Screenshot] Folks on Twitter were quick to pounce, and it still seems to be kind of flying under the radar that FOX News’ side-scrolling ticker got it wrong too. The comparisons to Dewey Defeats Truman are obvious. The picture below by @garyhe captures this notion visually.

But there are a couple important differences in modern and social media versus the 1940s.

Because of the faster means to get the word out, there is even more pressure for a media outlet to be the first. (The same kind of pressure, felt by a humble blogger like me to be among the first to analyze the issues herein is making it difficult for me to type right.) And members of mainstream media are not just competing against other mainstream media participants. As @roncoleman tweeted, “[t]he central role of @SCOTUSblog in this discussion is the truly historical event occurring today.” (@SCOTUSblog’s coverage of the decision was driven largely by the work of 81-year-old Lyle Denniston.)

And it’s easy to forget that mistakes in reporting can easily be undone. Unlike the paper in the Dewey Defeats Truman situation, which had to literally stop the presses, reset the type, print out new stacks of papers and physically deliver them hours later, the CNN website was changed immediately with little human effort. And the fact that CNN got it wrong couldn’t have harmed anyone, given that there were millions of commentators on Twitter to instantly lampoon it, thereby drawing attention to the error.

2. It’s not just law professors who can be constitutional scholars

@jonathanwpeters observed the profundity of how the discourse on Twitter had become erudite by simply noting: “June 28, 2012: the day that “Commerce Clause” trended on Twitter.” But maybe that eruditeness is just a facade. @jbtaylor gives us a warning: “Brace yourself. Everyone on Twitter is about to become a Constitutional scholar.”

3. Everyone’s a comedian and all the world’s a comedy club

Probably the best part of the social media response to the decision is the humor. Here are a few of my favorite tweets that look at the farcical side of this:

“Remember when John Roberts botched the President’s swearing-in on Inauguration Day? I think they’re all good now.” (by @johnsberman)
“I felt a sudden disturbance in the Law, as if millions of nascent law review articles cried out, and were suddenly silenced.” (by @timhwang)
“Tea Party just turned into a massive kegger as the last spare change has gone to buy all the beer left in St. Louis ‪#wow‬ (by @mimizhusband)
“Now that that’s over who wants to grab a Coke and watch some porn” – Clarence Thomas (by @platypusjones)

January 26, 2012 Anonymity

Ron Paul not allowed to find out who posted mean video about Jon Huntsman on YouTube

Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 12-00240 (N.D. Cal. January 25, 2012)

(Hat tip to Venkat for posting a link to this decision.)

Ron Paul’s campaign — Ron Paul 2012 Presidential Campaign Committee, Inc. — sued some John Doe defendants in federal court over an offensive video attacking former (but then current) opponent Jon Huntsman. The video demonstrated a gross insensitivity toward Chinese culture, and was posted to YouTube and promoted on Twitter by a user calling himself NHLiberty4Paul.

Since the campaign did not know the true identity of the John Doe defendants, it asked the court for leave to take “expedited discovery” so that it could serve subpoenas on YouTube and Twitter. (The Federal Rules of Civil Procedure do not allow early discovery like this unless the court specifically permits it.)

The court denied the campaign’s motion seeking early discovery. It held that the campaign failed to show the required “good cause” for expedited discovery set forth in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999).

Under the Seescandy.com standard, in determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as Doe defendants, courts consider whether:

(1) the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
(2) the plaintiff has identified all previous steps taken to locate the elusive defendant;
(3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and
(4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.

The court found that the campaign failed to address these required issues. One is left to wonder whether there is enough of Paul’s campaign left to make it worthwhile to try again.

October 23, 2011 Employment, Litigation

Court requires fired social media employee to return usernames and passwords

Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (S.D.N.Y. October 19, 2011)

Defendant was hired to be plaintiffs’ “video and social media producer,” with responsibilities that included maintaining social media pages in connection with the online marketing of plaintiffs’ products. After she was terminated, she refused to tell her former employers the usernames and passwords for various social media accounts. (The case doesn’t say which ones, but it’s probably safe to assume these were Facebook pages and maybe Twitter accounts.) So plaintiffs sued, and sought a preliminary injunction requiring defendant to return the login information. The court granted the motion for preliminary injunction.

The court found that plaintiffs had come forward with sufficient evidence to support a finding of irreparable harm if the login information was not returned prior to a final disposition in the case:

Plaintiffs depend heavily on their online presence to advertise their businesses, which requires the ability to continuously update their profiles and pages and react to online trends. The inability to do so unquestionably has a negative effect on plaintiffs’ reputation and ability to remain competitive, and the magnitude of that effect is difficult, if not impossible, to quantify in monetary terms. Such injury constitutes irreparable harm.

Defendant argued there would not be irreparable harm because the web content had not been updated in over two years. But the court rejected that argument, mainly because it would have been unfair to let the defendant benefit from her own failure to perform her job responsibilities:

Defendant was employed by plaintiffs for the entirety of that period, and she acknowledges that it was her responsibility to post content to those websites. Defendant cannot use her own failure to perform her duties as a defense.

Moreover, the court found that the plaintiffs would lose out by not being able to leverage new opportunities. For example, plaintiffs had recently hopped on the copy Groupon bandwagon by participating in “daily deal” promotions. The court noted that the success of those promotions depended heavily on tie-ins with social media. So in this way the unavailability of the social media login information also contributed to irreparable harm.