252 F. Supp. 3d 140
E.D.N.Y2017Background
- Two related suits by Israeli citizens/victims: Cohen (≈20,000 Israeli residents seeking injunctive relief) and Force (U.S. citizen victims/estates alleging past attacks and seeking damages). Both allege Facebook enabled Palestinian terrorist groups (esp. Hamas) to recruit, incite, plan, and coordinate attacks via accounts and algorithmic dissemination.
- Cohen plaintiffs sue under Israeli and New York tort law seeking injunctive relief to stop a claimed "Facebook Intifada." Force plaintiffs bring Israeli-law tort claims plus federal claims under the Anti‑Terrorism Act and related statutes seeking monetary relief.
- Plaintiffs' factual theory: Facebook (1) permits terrorist accounts and (2) its recommendation/algorithmic features amplify incendiary third‑party content, increasing risk/harm. Plaintiffs allege Facebook knew of such use and responded inconsistently.
- Procedural posture: both complaints amended and consolidated for briefing on Facebook’s motions to dismiss (12(b)(1), (2), (6) as applicable). Court addresses standing, personal jurisdiction, Section 230 immunity, and extraterritoriality.
- Rulings: Cohen dismissed for lack of Article III standing (no concrete/imminent injury); Force claims: court finds personal jurisdiction proper but dismisses all claims on the ground Section 230(c)(1) immunizes Facebook from liability for third‑party content, and Section 230 applies domestically to these suits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Cohen) | Cohen: generalized risk and fear from Facebook‑enabled violence gives injury and warrants injunctive relief. | Facebook: alleged future terrorist injury is speculative, not "concrete and imminent." | Held: No Article III standing — plaintiffs allege only speculative future harm/fear; Cohen dismissed without prejudice. |
| Personal jurisdiction (Force) | Force: ATA service provision permits nationwide service; pendent jurisdiction covers state/foreign‑law claims. | Facebook: personal jurisdiction improper under due process/state rules. | Held: Personal jurisdiction proper — ATA authorizes nationwide service; due process satisfied by contacts with the U.S.; pendent jurisdiction over related claims allowed. |
| Section 230(c)(1) coverage | Force: claims framed as content‑neutral "provision of services" (accounts), not publisher liability; Section 230 shouldn't bar liability for providing services to terrorists. | Facebook: Section 230 shields interactive service providers from being treated as publisher/speaker of third‑party content, covering account provision and content‑removal decisions. | Held: Section 230(c)(1) applies — claims would treat Facebook as publisher/speaker of third‑party content; immunity bars the Force claims. |
| Extraterritoriality of Section 230 | Force: Section 230 lacks clear extraterritorial intent; applying it to foreign‑conduct claims violates presumption against extraterritoriality. | Facebook: Section 230’s focus is limiting liability; immunity is applied by the U.S. court where suit is filed (domestic situs), so extraterritoriality concern doesn’t bar application. | Held: Section 230 not impermissibly extraterritorial here — statute’s focus is limiting liability and the relevant territorial contact is the situs of litigation (U.S.). |
Key Cases Cited
- Arrowsmith v. United Press Int’l, 320 F.2d 219 (2d Cir. 1963) (courts should resolve jurisdictional questions before merits where appropriate)
- Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (standard for dismissal for lack of subject matter jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct. 1992) (injury‑in‑fact—concrete and particularized requirement)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (Sup. Ct. 2013) (future injury must be certainly impending or present substantial risk)
- Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (Sup. Ct. 2010) (two‑step extraterritoriality framework and determining statutory focus)
- LeadClick Media, LLC v. FTC, 838 F.3d 158 (2d Cir. 2016) (Section 230 test: interactive service; information provided by another; claim treats defendant as publisher/speaker)
- Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2d Cir. 2015) (affirmative defenses apparent on face of complaint may support dismissal)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (Section 230 interpreted to bar publisher liability for third‑party content)