Force v. Facebook, Inc.
934 F.3d 53
| 2d Cir. | 2019Background
- Plaintiffs (U.S. victims and representatives of victims of Hamas terrorist attacks in Israel) sued Facebook under the Anti-Terrorism Act (18 U.S.C. § 2333) and related federal claims, alleging Facebook provided Hamas a communication platform and algorithmic recommendations that enabled attacks.
- The district court dismissed the First Amended Complaint under Rule 12(b)(6), holding 47 U.S.C. § 230(c)(1) immunized Facebook as to plaintiffs’ federal claims; leave to file an amended complaint was denied as futile.
- Plaintiffs argued on appeal that § 230 does not bar their claims because (a) the claims do not treat Facebook as the publisher of third‑party content, (b) Facebook ‘‘developed’’ Hamas content via algorithms, (c) § 230(e)(1) (criminal‑law exception), JASTA/ATA, or extraterritoriality defeats immunity, and (d) § 230 should not apply to foreign‑law claims.
- The Second Circuit treated plaintiffs’ pleaded facts (and proposed amended complaint) as true, applied the Section 230 framework, and evaluated extraterritoriality under the RJR Nabisco two‑step test.
- The court affirmed dismissal of the federal claims on grounds that § 230(c)(1) protects Facebook’s alleged conduct (publishing and algorithmic placement of third‑party content) and concluded § 230(e)(1) and JASTA/ATA did not defeat immunity.
- The court dismissed plaintiffs’ Israeli‑law claims without prejudice for lack of diversity jurisdiction (many plaintiffs are U.S. citizens domiciled in Israel), declining to cure jurisdictional defects on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 230(c)(1) bar ATA and related federal claims based on Facebook hosting and distributing Hamas content? | Claims do not treat Facebook as publisher; they target Facebook’s provision of a platform and algorithmic assistance to Hamas. | § 230 broadly immunizes interactive computer services from being treated as publisher/speaker of third‑party content; algorithms are part of publishing. | Held: § 230(c)(1) applies — Facebook is a publisher of Hamas content and is not alleged to have "developed" the content; federal claims dismissed. |
| Did Facebook ‘‘develop’’ Hamas content (making it an information content provider under § 230(f)(3)) via algorithms and other features? | Facebook’s algorithms materially contributed to and developed Hamas’s terrorist content by targeting and amplifying it. | Algorithms are neutral tools that arrange/display third‑party content without materially altering or creating the content; that is protected. | Held: Plaintiffs failed to plausibly allege Facebook materially developed the illegal content; algorithms are neutral publishing tools for § 230 purposes. |
| Does § 230(e)(1) ("no effect on criminal law") prevent § 230 immunity for civil ATA claims tied to criminal statutes proscribing material support to terrorism? | § 230(e)(1) protects enforcement of federal criminal statutes; applying § 230 here would impair enforcement of material‑support criminal statutes. | § 230(e)(1) is limited to criminal prosecutions and does not carve out private civil suits asserting statutory civil remedies. | Held: § 230(e)(1) pertains to criminal enforcement, not private civil claims; it does not defeat § 230(c)(1) immunity here. |
| Is applying § 230(c)(1) to this suit an impermissible extraterritorial application? | Much of the relevant conduct (posts, attacks, Facebook employees) occurred abroad; § 230 should not bar claims tied to extraterritorial conduct. | § 230 operates domestically to limit liability in U.S. courts; it is not being applied to regulate foreign conduct. | Held: Presumption against extraterritoriality not a barrier — § 230’s focus is domestic (limiting civil liability in U.S. courts); application here is permissible. |
Key Cases Cited
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir.) (1997) (articulates broad § 230 purpose and publisher immunity rationale)
- FTC v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir. 2016) (adopts material‑contribution test for when a defendant becomes an information content provider)
- Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (distinguishes neutral hosting from site features that require or create third‑party content)
- Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263 (D.C. Cir. 2019) (algorithmic translation/display of third‑party data can remain neutral and not ‘‘develop’’ content)
- Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (§ 230 construed broadly; criminal‑law exception limited)
- RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090 (2016) (two‑step extraterritoriality framework)
- WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018) (clarifies statute 'focus' inquiry under extraterritoriality analysis)