Reynaldo Gonzalez v. Google LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REYNALDO GONZALEZ; THE No. 18-16700

ESTATE OF NOHEMI GONZALEZ;

BEATRIZ GONZALEZ, Individually D.C. No.

and as Administrator of the Estate 4:16-cv-03282-

of Nohemi Gonzalez; JOSE DMR

HERNANDEZ; REY GONZALEZ;

PAUL GONZALEZ,

Plaintiffs-Appellants,

v.

GOOGLE LLC,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Donna M. Ryu, Magistrate Judge, Presiding

2 GONZALEZ V. GOOGLE

MEHIER TAAMNEH; LAWRENCE No. 18-17192

TAAMNEH; SARA TAAMNEH;

DIMANA TAAMNEH, D.C. No.

Plaintiffs-Appellants, 3:17-cv-04107-

EMC

v.

TWITTER, INC.; GOOGLE LLC;

FACEBOOK, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

GONZALEZ V. GOOGLE 3

GREGORY CLAYBORN, Individually No. 19-15043

and as Successor-In-Interest of the

Estate of SIERRA CLAYBORN; KIM D.C. Nos.

CLAYBORN; TAMISHIA CLAYBORN; 3:17-cv-06894-LB

VANESSA NGUYEN, Individually 3:18-cv-00543-LB

and as Successor-In-Interest of the

Estate of TIN NGUYEN; TRUNG DO;

JACOB THALASINOS; JAMES OPINION

THALASINOS,

Plaintiffs-Appellants,

v.

TWITTER, INC.; FACEBOOK, INC.;

GOOGLE LLC,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted March 26, 2020

San Francisco, California

Filed June 22, 2021

Before: Ronald M. Gould, Marsha S. Berzon, and

Morgan Christen, Circuit Judges.

Opinion by Judge Christen;

Concurrence by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Gould

4 GONZALEZ V. GOOGLE

SUMMARY*

Anti-Terrorism Act

The panel addressed appeals from the district court’s

dismissal of three actions seeking damages under the Anti-

Terrorism Act against Google, Twitter, and Facebook on the

basis that defendants’ social media platforms allowed ISIS to

post videos and other content to communicate the terrorist

group’s message, to radicalize new recruits, and to generally

further its mission. The panel affirmed the judgments in the

Gonzalez and Clayborn appeals and reversed and remanded

in Taamneh.

Members of the families of victims of terrorism in Paris,

Istanbul, and San Bernardino alleged that Google, Twitter,

and Facebook were directly and secondarily liable for ISIS’s

acts of international terrorism. The Gonzalez plaintiffs

brought claims for both direct and secondary liability against

Google. The district court concluded that most of plaintiffs’

claims were barred pursuant to 47 U.S.C. § 230 of the

Communications Decency Act, and the direct liability claims

failed to adequately allege proximate cause. In the Taamneh

and Clayborn cases, the district court concluded that plaintiffs

failed to plausibly allege a secondary liability claim against

Google, Twitter, and Facebook.

The panel held that the district court in Gonzalez properly

ruled that § 230 barred most of plaintiffs’ claims. The panel

further held that the Gonzalez plaintiffs failed to state an

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GONZALEZ V. GOOGLE 5

actionable claim as to their remaining theories of liability. In

Taamneh, the panel held that the district court erred by ruling

that plaintiffs failed to state a claim for aiding-and-abetting

liability under the ATA. In Clayborn, the panel concluded

that the district court correctly held that plaintiffs failed to

plausibly plead their claim for aiding-and-abetting liability.

Addressing Gonzalez, the panel held that the civil

remedies section of the ATA permits United States nationals

to recover damages for injuries suffered “by reason of acts of

international terrorism.” The Justice Against Sponsors of

International Terrorism Act of 2016 (JASTA) amended the

ATA to include secondary civil liability for aiding and

abetting, or conspiring to commit, acts of international

terrorism. Section 230 of the Communications Decency Act

protects websites from liability for material posted on the

website by someone else. The panel held that the

presumption against the extraterritorial application of federal

statutes did not prevent § 230 from applying to the Gonzalez

plaintiffs’ claims because the relevant conduct took place in

the United States. The panel concluded that JASTA did not

impliedly repeal § 230. Agreeing with the First and Second

Circuits, the panel held that the exception set forth in

§ 230(e)(1), concerning impairment of the enforcement of

federal criminal statutes, does not extend to actions for civil

damages. Thus, the Gonzalez plaintiffs’ claims were not

categorically excluded from the reach of § 230 immunity.

The Gonzalez plaintiffs argued that the immunity afforded

by § 230 did not bar their claims because § 230 immunizes

only those who publish content created by third parties, and

their claims were directed to content created by Google.

Google argued that the plaintiffs impermissibly sought to

treat Google as a publisher of content created by third parties,

6 GONZALEZ V. GOOGLE

presumably ISIS, on YouTube. In Part III.E of its opinion,

the panel affirmed the district court’s ruling that § 230 barred

all of plaintiffs’ claims except to the extent their complaint

presented claims premised on the allegation that Google

shared advertising revenue with ISIS. Section 230(c)

precludes liability for “(1) a provider or user of an interactive

computer service (2) whom a plaintiff seeks to treat . . . as a

publisher or speaker (3) of information provided by another

information content provider.” The panel concluded that

plaintiffs’ claims did not inherently require the court to treat

Google as the publisher or speaker of content provided by

ISIS, and the duty that plaintiffs alleged Google violated did

not derive from Google’s status or conduct as a publisher or

speaker. The panel concluded that Google did not create or

develop content by making a material contribution to its

alleged unlawfulness when it created the “mosaics” by which

ISIS videos were delivered. The panel held that the court’s

case law foreclosed the argument that Google’s pairing of

ISIS content with selected advertising and other videos

vitiated § 230 immunity. Accepting as true plaintiffs’

allegation that Google’s algorithms recommended ISIS

content to users, and agreeing with the Second Circuit, the

panel wrote that the algorithms did not treat ISIS-created

content differently than any other third-party created content,

and thus were entitled to § 230 immunity.

In Part III.F of its opinion, the panel held that § 230 did

not bar the Gonzalez plaintiffs’ claims premised on the

allegation that because it shared advertising revenue with

ISIS, Google should be held directly liable for providing

material support to ISIS and secondarily liable for providing

substantial assistance to ISIS.

GONZALEZ V. GOOGLE 7

In Parts IV and V, the panel held that the Gonzalez

plaintiffs did not adequately allege claims for direct or

secondary liability under the ATA based on a revenue-sharing

theory. As to direct liability, plaintiffs failed to plausibly

allege that Google directly perpetrated an act of international

terrorism because they did not allege that Google’s actions

were motivated by anything other than economic self-

enrichment. As to secondary liability, plaintiffs did not state

a claim on either a theory of aiding and abetting or a theory

of conspiracy liability.

In Part VI, reversing the district court’s dismissal of the

Taamneh action, the panel held that the Taamneh plaintiffs

adequately stated a claim for aiding-and-abetting liability.

In Part VII, affirming the dismissal of the Clayborn

action, the panel held that because the Clayborn plaintiffs did

not plausibly allege that ISIS committed, planned or

authorized the terrorist attack in San Bernardino, they did not

adequately state a claim for aiding and abetting an act of

international terrorism.

Judge Berzon concurred in the majority opinion in full.

She wrote separately to explain that, although the panel was

bound by Ninth Circuit precedent compelling the outcome in

this case, she joined the growing chorus of voices calling for

a more limited reading of the scope of § 230 immunity.

Judge Berzon urged the court to reconsider its precedent en

banc to the extent that it holds that § 230 immunity extends

to the use of machine-learning algorithms to recommend

content and connections to users.

Judge Gould concurred in the majority opinion in its Parts

I and II, Part III.A through III.D, Part III.F, and Part VI and

8 GONZALEZ V. GOOGLE

dissented in part as to Part III.E and Parts IV, V, and VII.

Judge Gould wrote that he concurred insofar as the majority

would reverse in part the dismissal of revenue-sharing claims

in Gonzalez, and insofar as it would reverse the district

court’s judgment in Taamneh that the complaint failed to

adequately state a claim under the ATA. Judge Gould wrote

that he dissented as to the majority’s dismissal of the

Gonzalez claims on grounds of § 230 immunity, and of

failure to state a claim for direct or secondary liability under

the ATA, because of the majority’s mistaken conclusion that

there was no act of international terrorism, and he also would

hold that the complaint adequately alleged that there was

proximate cause supporting damages on those claims. Judge

Gould agreed that claims could proceed in the Taamneh case,

and accordingly agreed with reversing and remanding in that

case. On the Clayborn case, Judge Gould dissented because

the majority’s conception of an attack authorized by ISIS was

inconsistent with the allegations of the operative complaint

and well-established principles of tort and agency law.

GONZALEZ V. GOOGLE 9

COUNSEL

Keith Altman (argued) and Daniel W. Weininger (argued),

Excolo Law, Southfield, Michigan, Plaintiffs-Appellants

Reynaldo Gonzalez, Mehier Taamneh, Lawrence Taamneh,

Sara Taamneh, Dimana Taamneh, Gregory Clayborn, Kim

Clayborn, Tamishia Clayborn, Vanessa Nguyen, Trung Do,

Jacob Thalasinos, and James Thalasinos.

Robert J. Tolchin (argued) and Meir Katz, Berkman Law

Office LLC, Brooklyn, New York; for Plaintiffs-Appellants

Estate of Nohemi Gonzalez; Beatriz Gonzalez, Jose

Hernandez, Rey Gonzalez, and Paul Gonzalez.

Brian M. Willen (argued), Wilson Sonsini Goodrich &

Rosati, New York, New York; David H. Kramer, Lauren

Gallo White, and Kelly M. Knoll, Wilson Sonsini Goodrich

& Rosati, Palo Alto, California; for Defendant-Appellee

Google LLC.

Kristin A. Linsley (argued) and Jacob T. Spencer, Gibson

Dunn & Crutcher LLP, San Francisco, California; for

Defendant-Appellee Facebook Inc.

Seth P. Waxman, Patrick J. Carome, and Ari Holtzblatt,

Wilmer Cutler Pickering Hale & Dorr LLP, Washington,

D.C., for Defendant-Appellee Twitter Inc.

Aaron Mackey and Sophia Cope, Electronic Frontier

Foundation, San Francisco, California, for Amicus Curiae

Electronic Frontier Foundation.

10 GONZALEZ V. GOOGLE

OPINION

CHRISTEN, Circuit Judge:

We address three appeals arising from separate acts of

terrorism—one in Paris, one in Istanbul, and one in San

Bernardino—in which Nohemi Gonzalez, Nawras Alassaf,

Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos lost

their lives. The foreign terrorist organization known as ISIS

took responsibility for the attacks in Paris and Istanbul and

lauded the attack in San Bernardino after the fact. Plaintiffs

are members of the victims’ families.

Plaintiffs seek damages pursuant to the Anti-Terrorism

Act (ATA), 18 U.S.C. § 2333. The ATA allows United

States nationals to recover damages for injuries suffered “by

reason of an act of international terrorism,” id. § 2333(a), but

the defendant in these cases is not ISIS. Instead, plaintiffs

allege that Google, Twitter, and Facebook are directly and

secondarily liable for the five murders at issue in these cases.

The complaints allege that defendants’ social media platforms

allowed ISIS to post videos and other content to communicate

the terrorist group’s message, to radicalize new recruits, and

to generally further its mission. Plaintiffs also claim that

Google placed paid advertisements in proximity to

ISIS-created content and shared the resulting ad revenue with

ISIS. In these and other ways, all three complaints allege

defendants are directly liable for committing acts of

international terrorism pursuant to § 2333(a) of the ATA, and

secondarily liable for conspiring with, and aiding and

GONZALEZ V. GOOGLE 11

abetting, ISIS’s acts of international terrorism pursuant to

§ 2333(d).1

This opinion addresses three separate appeals. The

Gonzalez appeal concerns claims for both direct and

secondary liability against Google. In that case, the district

court granted Google’s motion to dismiss, concluding that

most of the Gonzalez Plaintiffs’ claims were barred pursuant

to 47 U.S.C. § 230 of the Communications Decency Act

(CDA), and that the Gonzalez Plaintiffs’ direct liability

claims failed to adequately allege proximate cause. The

Taamneh and Clayborn appeals concern claims for secondary

liability against Google, Twitter, and Facebook. In both of

these cases, the district court granted defendants’ motions to

dismiss on the grounds that the plaintiffs failed to plausibly

allege a secondary liability claim under the ATA.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

conclude the district court in Gonzalez properly ruled that

§ 230 bars most of the Gonzalez Plaintiffs’ claims, and that

the Gonzalez Plaintiffs failed to state an actionable claim as

to their remaining theories of liability asserted pursuant to the

ATA. In Taamneh, we conclude the district court erred by

ruling the Plaintiffs failed to state a claim for aiding-and-

abetting liability under the ATA. The district court did not

reach § 230 immunity in Taamneh. In Clayborn, we

conclude the district court correctly held that Plaintiffs failed

1

The acronym “ISIS” refers to “The Islamic State of Iraq and Syria.”

ISIS is occasionally referred to as “ISIL” or “The Islamic State of Iraq and

the Levant.” Both names are derived from the Arabic “ad-Dawlah al-

Islamiyah fil-‘Iraq wash-Sham.” The organization later shortened its

name to “ad-Dawlah al-Islamiyah” (“The Islamic State” or “IS”). For

simplicity, we use the name ISIS.

12 GONZALEZ V. GOOGLE

to plausibly plead their claim for aiding-and-abetting liability.

We therefore affirm the judgments in Gonzalez and Clayborn,

and reverse and remand for further proceedings in Taamneh.

I

A

Nohemi Gonzalez, a 23-year-old U.S. citizen, studied in

Paris, France during the fall of 2015. On November 13,

2015, when Nohemi was enjoying an evening meal with her

friends at a café, three ISIS terrorists—Abdelhamid Abaaoud,

Brahim Abdeslam, and Chakib Akrouh—fired into the crowd

of diners, killing her. This tragic event occurred within a

broader series of attacks perpetrated by ISIS in Paris on

November 13 (the “Paris Attacks”). ISIS carried out several

suicide bombings and mass shootings in Paris that day,

including a massacre at the Bataclan theatre. The day after

the Paris Attacks, ISIS claimed responsibility by issuing a

written statement and releasing a YouTube video.

The operative Gonzalez complaint alleges that at the time

of the Paris Attacks, ISIS had become one of the largest and

most widely recognized terrorist organizations in the world.

The complaint also alleges that ISIS carried out violent

terrorist attacks as a means of instilling terror in the public

and communicating its broader objectives, and that ISIS’s

messages—communicated before, during and after its terror

attacks—are essential components of generating the physical,

emotional, and psychological impact ISIS desires to achieve.

Google owns YouTube, a global online service used to

post, share, view, and comment on videos related to a vast

range of topics. Users can post content directly on YouTube,

GONZALEZ V. GOOGLE 13

though Google has the ability to remove any content. When

Google receives a complaint about a video, it reviews the

video and removes it if it violates Google’s content policies.

The Gonzalez complaint alleges that YouTube “has

become an essential and integral part of ISIS’s program of

terrorism,” and that ISIS uses YouTube to recruit members,

plan terrorist attacks, issue terrorist threats, instill fear, and

intimidate civilian populations. According to the Gonzalez

Plaintiffs, YouTube provides “a unique and powerful tool of

communication that enables ISIS to achieve [its] goals.”

With regard to the Paris Attacks in particular, the

Gonzalez Plaintiffs allege that two of the twelve ISIS

terrorists who carried out the attacks used online social media

platforms to post links to ISIS recruitment YouTube videos

and “jihadi YouTube videos.” Abaaoud, one of the attackers

in the café shooting, appeared in an ISIS YouTube video

from March 2014, and delivered a monologue aimed at

recruiting jihadi fighters to join ISIS.

The Gonzalez Plaintiffs’ theory of liability generally

arises from Google’s recommendations of content to users.

These recommendations are based upon the content and

“what is known about the viewer.” Specifically, the

complaint alleges Google uses computer algorithms to match

and suggest content to users based upon their viewing history.

The Gonzalez Plaintiffs allege that, in this way, Google has

“recommended ISIS videos to users” and enabled users to

“locate other videos and accounts related to ISIS,” and that by

doing so, Google assists ISIS in spreading its message. The

Gonzalez Plaintiffs’ theory is that YouTube is “useful[] in

facilitating social networking among jihadists” because it

14 GONZALEZ V. GOOGLE

provides “[t]he ability to exchange comments about videos

and to send private messages to other users.”

The complaint also asserts that Google pairs videos with

advertisements and that it targets advertisements based on

information about the advertisement, the user, and the posted

video. The complaint alleges that by doing so, Google

exercises control over which advertisements are matched with

videos posted by ISIS on YouTube, creating new unique

content for viewers “by choosing which advertisement to

combine with the posted video with knowledge about the

viewer.”

The Gonzalez Plaintiffs’ complaint also alleges that

Google’s practice is to share a percentage of the revenue it

generates from these ads with the users who post the videos.

Specifically, the complaint alleges that Google “reviewed and

approved ISIS videos, including videos posted by ISIS-

affiliated users, for monetization through” its placement of

ads on those videos, thereby agreeing to share revenue with

ISIS and ISIS-affiliated users.

According to the Gonzalez Plaintiffs, Google is aware of

ISIS’s presence on YouTube, has received complaints about

ISIS content, has the ability to remove ISIS content from

YouTube, and has “suspended or blocked selected ISIS-

related accounts at various times.” The complaint asserts that

in spite of Google’s knowledge and control, Google “did not

make substantial or sustained efforts to ensure that ISIS

would not re-establish the accounts using new identifiers.”

Instead, the Gonzalez Plaintiffs allege, Google sometimes

declined to remove ISIS accounts because the content posted

by those accounts did not violate YouTube’s policies and, on

other occasions, Google removed only a portion of the

GONZALEZ V. GOOGLE 15

content posted on ISIS-related accounts but permitted the

accounts to remain active.2

Reynaldo Gonzalez, Nohemi’s father, filed an action

against Google, Twitter, and Facebook on June 14, 2016, and

a Second Amended Complaint (SAC) on April 21, 2017. The

SAC joined additional family members and named only

Google as a defendant. According to the SAC, Google aided

and abetted international terrorism and provided material

support to international terrorism by allowing ISIS to use

YouTube. See 18 U.S.C. § 2333(a), (d). Claims One and

Two alleged that Google is secondarily liable for aiding and

abetting acts of international terrorism and for conspiring

with ISIS; Claims Three and Four alleged that Google is

directly liable for providing material support and resources to

ISIS. Google moved to dismiss all of the Gonzalez Plaintiffs’

claims on the grounds that they were barred by § 230 of the

CDA. See 47 U.S.C. § 230(c). The district court granted the

motion to dismiss, but gave the Gonzalez Plaintiffs an

opportunity to amend.

The Third Amended Complaint (TAC) is the operative

complaint. In it, the Gonzalez Plaintiffs added additional

claims. The Plaintiffs allege that Google is secondarily liable

for Nohemi’s death because Google aided and abetted an act

of international terrorism and engaged in a conspiracy with a

2

The Gonzalez Plaintiffs also allege that “Google has tools by which

it can identify, flag, review, and remove ISIS YouTube accounts,” but

improperly focuses primarily “on whether the content posted violates

Google’s own ‘Community Standards,’ rather than examin[ing] whether

the account is being used by or for the benefit” of terrorists. They further

allege that “[e]ven when Google occasionally deletes an account for

violating its Community Standards, it allows these accounts to be quickly

regenerated.”

16 GONZALEZ V. GOOGLE

perpetrator of an act of international terrorism. The Gonzalez

TAC also alleges that Google is directly liable under

§ 2333(a) for providing material support and resources to

ISIS, and for concealing this support, in violation of 18

U.S.C. §§ 2339A, 2339B(a)(1), and 2339C(c).3

Google moved to dismiss the entire TAC based on § 230

immunity, and alternatively moved to dismiss the § 2333(a)

direct liability claims (Claims Three through Six) on the

ground that they failed to plausibly allege Google

proximately caused the Gonzalez Plaintiffs’ injury. The

district court ruled that all of Plaintiffs’ claims were barred by

§ 230, except to the extent Claims Three and Four were

premised on a revenue-sharing theory. The court concluded

that Claims Three through Six failed to plausibly allege

proximate cause. The revenue-sharing claims were dismissed

without prejudice; all the other claims were dismissed with

prejudice. The Gonzalez Plaintiffs did not further amend, but

they did timely appeal.

B

Nawras Alassaf, a Jordanian citizen, visited Istanbul,

Turkey with his wife to celebrate the 2017 New Year. He

was killed on January 1, 2017, when Abdulkadir

Masharipov—an individual affiliated with and trained by

ISIS—carried out a shooting massacre at the Reina nightclub

there (the “Reina Attack”). Masharipov arrived at the Reina

nightclub shortly after midnight and, during a seven-minute

3

Separately, the Gonzalez Plaintiffs allege that Google provided

funds, goods, or services to or for the benefit of global terrorists in

violation of Executive Order No. 13224, 31 C.F.R. Part 594, and

50 U.S.C. § 1705.

GONZALEZ V. GOOGLE 17

attack, fired more than 120 rounds into the crowd of 700

people, killing 39 and injuring 69 others. Masharipov

escaped the nightclub and evaded arrest for over two weeks

but was ultimately apprehended. On the day after the attack,

ISIS issued a statement claiming responsibility for the Reina

Attack.

Twitter is a social networking service that allows users to

publicly connect with other users and to distribute content

publicly by posting “tweets.” The Taamneh Plaintiffs allege

that Twitter has the ability to remove tweets and accounts, but

does not do so proactively. Instead, Twitter reviews content

that is reported by others as violating its rules.

Facebook is also a social networking service that allows

users to communicate with other users and to share and

distribute content publicly. Facebook has the ability to

remove content posted by its users.

The Taamneh Plaintiffs are relatives of Nawras Alassaf.

They allege that Google, Twitter, and Facebook were a

critical part of ISIS’s growth. Much like the Gonzalez

complaint, the Taamneh complaint alleges that ISIS uses

defendants’ social media platforms to recruit members, issue

terrorist threats, spread propaganda, instill fear, and

intimidate civilian populations. According to the Taamneh

Plaintiffs, ISIS could not have grown into one of the most

recognizable and feared terrorist organizations without the

effective communications platforms provided by defendants

free of charge.

The Taamneh Plaintiffs’ complaint alleges that ISIS and

its affiliated entities have used YouTube, Twitter, and

Facebook for many years with “little or no interference.”

18 GONZALEZ V. GOOGLE

“Despite extensive media coverage, complaints, legal

warnings, petitions, congressional hearings, and other

attention for providing [their] online social media platforms

and communications services to ISIS, . . . Defendants

continued to provide these resources and services to ISIS and

its affiliates.” The Taamneh Plaintiffs also allege that

defendants knowingly permitted ISIS and its members and

affiliates to use their platforms, and reviewed ISIS’s use only

in response to third-party complaints. The complaint further

alleges that even when defendants received complaints about

ISIS’s use of their platforms, the defendants “have at various

times determined that ISIS’s use of [their] [s]ervices did not

violate Defendants’ policies,” and therefore “permitted ISIS-

affiliated accounts to remain active, or removed only a

portion of the content posted on an ISIS-related account . . . .”

The Taamneh Plaintiffs’ claims against Google, Twitter,

and Facebook allege these defendants aided and abetted an

act of international terrorism, conspired with the perpetrator

of an act of international terrorism, and provided material

support to ISIS, by allowing ISIS to use their social media

platforms. Like the Gonzalez Plaintiffs, the Taamneh

Plaintiffs allege that defendants’ actions violated the ATA.

Specifically, the Taamneh complaint includes claims for

direct and secondary liability under the ATA, 18 U.S.C.

§ 2333(a), (d), and state-law claims for negligent infliction of

emotional distress and wrongful death.

In response to defendants’ first motion to dismiss, the

Taamneh Plaintiffs amended their complaint once as a matter

of right and added additional claims. The First Amended

Complaint (FAC) is the operative complaint and it alleges

that Google, Twitter, and Facebook are secondarily liable

under § 2333(d) for aiding and abetting an act of international

GONZALEZ V. GOOGLE 19

terrorism and for conspiring with a perpetrator of an act of

international terrorism. The Taamneh complaint also alleges

that Google, Twitter, and Facebook are directly liable under

§ 2333(a) for providing material support and resources to

ISIS, and for concealing this support, in violation of

18 U.S.C. §§ 2339A, 2339B(a)(1), and 2339C(c).4

Defendants moved to dismiss. The district court ruled the

direct liability claims failed to adequately allege proximate

cause, and that the secondary liability claims failed to state a

claim for conspiracy to commit an act of international

terrorism, or for aiding and abetting an act of international

terrorism. The court dismissed the complaint with prejudice,

and the Taamneh Plaintiffs timely appealed.

C

Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos

attended an office holiday party at the Inland Regional Center

in San Bernardino, California on December 2, 2015. Syed

Rizwan Farook, a U.S. citizen, and Tashfeen Malik, Farook’s

wife, entered the building dressed in black and armed with

AR-15 semi-automatic rifles, a 9mm handgun, and assembled

pipe bombs. Farook and Malik indiscriminately fired more

than 100 rounds into the office gathering (the San Bernardino

Attack). At some point during the attack, Malik declared on

her Facebook page the couples’ allegiance and loyalty to

former ISIS leader, Abu Bakr al-Baghdadi. Clayborn,

Ngyuen, and Thalasinos were among the fourteen people

4

The Taamneh Plaintiffs’ complaint also includes an allegation that

Google, Twitter, and Facebook provided funds, goods, or services to or for

the benefit of global terrorists in violation of Executive Order No. 13224,

31 C.F.R. Part 594, and 50 U.S.C. § 1705.

20 GONZALEZ V. GOOGLE

murdered in the attack. Twenty-two others were seriously

wounded. After the San Bernardino Attack, Farook and

Malik fled the scene and were killed in a police shootout.

ISIS issued a statement two days later that “[t]wo followers

of Islamic State attacked several days ago a center in San

Bernardino in California, we pray to God to accept them as

Martyrs.”

The Clayborn Plaintiffs are relatives of Sierra Clayborn,

Tin Nguyen, and Nicholas Thalasinos. Plaintiffs allege that

Twitter, Facebook, and Google aided and abetted

international terrorism and provided material support to

international terrorists in violation of the ATA, by allowing

ISIS to use their platforms. The Clayborn Plaintiffs allege

Farook and Malik were radicalized by ISIS’s use of social

media. This complaint includes direct and secondary liability

claims against all three defendants pursuant to 18 U.S.C.

§§ 2333(a) and (d), 2339A, 2339B, and 2339C, and state-law

claims for negligent infliction of emotional distress and

wrongful death.

Defendants moved to dismiss. The district court granted

the motion and dismissed the Clayborn Plaintiffs’ operative

complaint on the grounds that the direct liability claims failed

to adequately allege proximate cause, and that the secondary

liability claims failed to plausibly allege substantial assistance

or that ISIS committed, planned, or authorized the San

Bernardino Attack. The Clayborn Plaintiffs only appeal the

district court’s ruling that they failed to adequately plead a

secondary liability claim for aiding and abetting international

terrorism under 18 U.S.C. § 2333(d).

GONZALEZ V. GOOGLE 21

II

We review de novo a district court’s order granting a

motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), accepting all factual allegations as true and

construing them in the light most favorable to the nonmoving

party. Fields v. Twitter, Inc., 881 F.3d 739, 743 (9th Cir.

2018).

These appeals concern claims for civil liability under the

ATA. The civil remedies section of the ATA permits United

States nationals to recover damages for injuries suffered “by

reason of an act of international terrorism.” 18 U.S.C.

§ 2333(a). The ATA contains criminal provisions, the

violation of which can give rise to a cause of action under

§ 2333(a) provided other conditions are met. Fields,

881 F.3d at 743. Specifically, 18 U.S.C. §§ 2339A, 2339B,

and 2339C criminalize providing material support for

terrorism, providing material support for foreign terrorist

organizations, and financing terrorism, respectively.5

5

Section 2339A(a) prohibits the provision of “material support or

resources” by anyone “knowing or intending that they are to be used in

preparation for, or in carrying out” any of several enumerated crimes of

terrorism. 18 U.S.C. § 2339A(a). Section 2339B(a)(1) prohibits the

knowing provision of “material support or resources to a foreign terrorist

organization.” Id. § 2339B(a)(1). Section 2339C(c) prohibits the

knowing “conceal[ment] or disguise[] [of] the nature, location, source,

ownership, or control” of any support, resources, or funds, knowing that

such “support or resources are to be provided, or . . . were provided, in

violation of section 2339B.” Id. § 2339C(c). Executive Order No. 13224,

31 C.F.R. Part 594 and 50 U.S.C. § 1705 generally prohibit providing

funds, goods, or services to or for the benefit of designated global

terrorists.

22 GONZALEZ V. GOOGLE

“[I]nternational terrorism” is defined in 18 U.S.C.

§ 2331(1). Acts of international terrorism “involve violent

acts or acts dangerous to human life that are a violation of the

criminal laws of the United States or of any State, or that

would be a criminal violation if committed within the

jurisdiction of the United States or of any State.” 18 U.S.C.

§ 2331(1)(A). The acts must “appear to be intended—(i) to

intimidate or coerce a civilian population; (ii) to influence the

policy of a government by intimidation or coercion; or (iii) to

affect the conduct of a government by mass destruction,

assassination, or kidnapping.” Id. § 2331(1)(B). Finally, the

acts must “occur primarily outside the territorial jurisdiction

of the United States, or transcend national boundaries . . . .”

Id. § 2331(1)(C).

In 2016, Congress broadened the scope of ATA liability

by enacting the Justice Against Sponsors of Terrorism Act

(JASTA), Pub. L. No. 144-222, 130 Stat. 852 (2016). JASTA

amended the ATA to include secondary civil liability for “any

person who aids and abets, by knowingly providing

substantial assistance, or who conspires with the person who

committed” an act of international terrorism that was

“committed, planned, or authorized” by a foreign terrorist

organization. Pub. L. 114-222, § 2(b), 130 Stat. 852, 854

(2016); 18 U.S.C. § 2333(d). Thus, as amended, the ATA

allows claims for direct liability for committing acts of

international terror pursuant to § 2333(a), or secondary

liability pursuant to § 2333(d) for aiding and abetting, or

conspiring to commit, acts of international terrorism.

III

These cases share some common issues but took different

paths to reach our court. In Gonzalez, the district court

GONZALEZ V. GOOGLE 23

primarily relied on § 230 immunity to conclude that all but

the Gonzalez Plaintiffs’ revenue-sharing claims were barred.

The district court separately concluded the revenue-sharing

claims failed because the TAC did not plausibly allege that

Google proximately caused Nohemi’s death. The court

allowed the Gonzalez Plaintiffs an opportunity to amend their

revenue-sharing claims, but the plaintiffs declined to do so,

and final judgment was entered. In Taamneh and Clayborn,

the district courts did not consider § 230 immunity. Instead,

the direct liability claims were dismissed for failure to

plausibly allege proximate cause, and the secondary liability

claims were dismissed for failure to plausibly allege liability

for aiding and abetting or conspiracy.

On appeal, the Gonzalez Plaintiffs begin by arguing that

§ 230 does not apply to their claims at all. They make three

arguments in support of this contention: (1) § 230 immunity

has no application to extraterritorial claims; (2) Congress

impliedly repealed § 230 when it amended the ATA in 2016;

and (3) § 230 immunity does not apply to ATA claims based

on criminal statutes. Alternatively, the Gonzalez Plaintiffs

argue that their claims, both revenue-sharing and those

unrelated to revenue-sharing, survive the application of § 230.

Finally, the Gonzalez Plaintiffs argue that the TAC

adequately states claims for direct and secondary liability

under the ATA. The Taamneh Plaintiffs and the Clayborn

Plaintiffs argue their complaints adequately allege that

defendants violated the ATA by aiding and abetting an act of

international terrorism.6 We begin by considering the

6

Though the district court did not address the application of § 230

immunity to the Taamneh Plaintiffs’ claims, defendants raise § 230 on

appeal as an alternative basis for affirmance. We decline to reach this

question in the first instance.

24 GONZALEZ V. GOOGLE

application of § 230 immunity to the Gonzalez Plaintiffs’

claims.

A

Congress enacted the Communications Decency Act as

part of the Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56. Section 230 of the CDA “immunizes

providers of interactive computer services against liability

arising from content created by third parties.” Fair Hous.

Council of San Fernando Valley v. Roommates.Com, LLC,

521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (footnote

omitted). Congress designed § 230 “to promote the free

exchange of information and ideas over the Internet and to

encourage voluntary monitoring for offensive or obscene

material.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099–1100

(9th Cir. 2009) (quoting Carafano v. Metrosplash.com, Inc.,

339 F.3d 1119, 1122 (9th Cir. 2003)). Congress was

concerned with “the ease with which the Internet delivers

indecent or offensive material, especially to minors” and

sought “to empower interactive computer service providers

to self-regulate.” Force v. Facebook, Inc., 934 F.3d 53,

78–79 (2d Cir. 2019) (Katzmann, C.J., concurring in part and

dissenting in part). To avoid chilling speech, Congress

“made a policy choice . . . not to deter harmful online speech

through the separate route of imposing tort liability on

companies that serve as intermediaries for other parties’

potentially injurious messages.” Carafano, 339 F.3d at 1123

(alteration in original) (quoting Zeran v. Am. Online, Inc.,

129 F.3d 327, 330 (4th Cir. 1997)).

The operative provision, § 230(c)(1), states “[n]o provider

or user of an interactive computer service shall be treated as

the publisher or speaker of any information provided by

GONZALEZ V. GOOGLE 25

another information content provider.” 47 U.S.C.

§ 230(c)(1). We have said that, “[i]n general, this section

protects websites from liability for material posted on the

website by someone else.” Doe v. Internet Brands, Inc.,

824 F.3d 846, 850 (9th Cir. 2016).

Section 230’s use of the phrase “publisher or speaker”

was prompted by a New York state-court decision that held

an internet service provider legally responsible for a

defamatory message posted to one of its message boards.

Roommates, 521 F.3d at 1163 (citing Stratton Oakmont, Inc.

v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct.

May 24, 1995) (unpublished)). Stratton Oakmont concluded

that the internet service provider “had become a ‘publisher’

under state law because it voluntarily deleted some messages

from its message boards ‘on the basis of offensiveness and

bad taste,’ and was therefore legally responsible for the

content of defamatory messages that it failed to delete.” Id.

(emphasis added) (internal quotation marks omitted) (quoting

Stratton Oakmont, 1995 WL 323710, at *4). The original

goal of § 230 was modest. By passing § 230, Congress

sought to allow interactive computer services “to perform

some editing on user-generated content without thereby

becoming liable for all defamatory or otherwise unlawful

messages that they didn’t edit or delete.” Id.

B

The Gonzalez Plaintiffs first argue that the presumption

against the extraterritorial application of federal statutes

prevents § 230 from applying to their claims. We disagree.

The presumption against extraterritoriality requires that,

“[a]bsent clearly expressed congressional intent to the

26 GONZALEZ V. GOOGLE

contrary, federal laws will be construed to have only domestic

application.” RJR Nabisco, Inc. v. European Cmty., 136 S.

Ct. 2090, 2100 (2016). The Supreme Court “has established

a two-step framework for deciding questions of

extraterritoriality.” WesternGeco LLC v. ION Geophysical

Corp., 138 S. Ct. 2129, 2136 (2018). “The first step asks

‘whether the presumption against extraterritoriality has been

rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).

The presumption is rebutted only when “the text [of the

statute] provides a ‘clear indication of an extraterritorial

application.’” Id. (quoting Morrison v. Nat’l Austl. Bank

Ltd., 561 U.S. 247, 255 (2010)). If the presumption is not

rebutted by the statute’s text, “the second step of [the]

framework asks ‘whether the case involves a domestic

application of the statute.’” Id. (quoting RJR Nabisco, 136 S.

Ct. at 2101). This step requires the court to identify the

statute’s focus, and ask “whether the conduct relevant to that

focus occurred in United States territory.” Id. “If it did, then

the case involves a permissible domestic application of the

statute.” Id.

The Gonzalez Plaintiffs argue that RJR Nabisco

recognized an exception to this two-step framework where,

as here, all relevant conduct takes place outside the United

States. To support this proposition, they rely on the Supreme

Court’s statement in RJR Nabisco that “[b]ecause ‘all the

relevant conduct’ regarding those violations ‘took place

outside the United States,’ we did not need to determine . . .

the statute’s ‘focus.’” 136 S. Ct. at 2101 (citation omitted)

(quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,

124 (2013)). The Gonzalez Plaintiffs misread RJR Nabisco.

The passage they rely upon explained only that, on the facts

of Kiobel, an inquiry into the focus of the statute was

GONZALEZ V. GOOGLE 27

unnecessary because all the relevant conduct was foreign.

Id.7

The Gonzalez Plaintiffs next argue that even if the RJR

Nabisco framework is applied, the framework demonstrates

that the their claims involve an extraterritorial application of

§ 230. Again, we are not persuaded.

RJR Nabisco requires that we begin by asking whether the

statute “gives a clear, affirmative indication that it applies

extraterritorially.” 136 S. Ct. at 2101. Neither party

identifies any indication that Congress intended § 230 to

apply extraterritorially, so we proceed to step two.

At step two, to determine whether claims involve a

domestic application of the statute, we must identify “the

statute’s focus.” Id. A statute’s focus is “the object of its

solicitude, which can include the conduct it seeks to regulate,

as well as the parties and interests it seeks to protect or

vindicate.” WesternGeco, 138 S. Ct. at 2137 (internal

quotations and alterations omitted). “If the conduct relevant

to the statute’s focus occurred in the United States . . . , then

7

Google separately argues that because § 230 does not directly

regulate conduct, extraterritoriality principles are not implicated at all.

The Ninth Circuit addressed a similar situation in a pre-RJR Nabisco case.

See Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008).

There, our court concluded that the General Aviation Revitalization Act’s

statute of repose did not “impermissibly regulate conduct that ha[d]

occurred abroad.” Id. at 953. Instead, the statute “merely eliminate[d] the

power of any party to bring a suit for damages . . . after the limitation

period.” Id. “Accordingly, the presumption against extraterritoriality

simply [was] not implicated . . . .” Id. Because we conclude this case

does not involve an impermissibly extraterritorial application of law under

the RJR Nabisco framework, we need not decide the applicability of

Blazevska. See also Force, 934 F.3d at 74.

28 GONZALEZ V. GOOGLE

the case involves a permissible domestic application of the

statute.” Id. at 2136 (internal quotation marks omitted)

(quoting RJR Nabisco, 136 S. Ct. at 2101).

The object of § 230(c)(1)’s solicitude is to encourage

providers of interactive computer services to monitor their

websites by limiting liability. Force, 934 F.3d at 74

(concluding § 230’s “primary purpose is limiting civil

liability in American courts”). Section 230 “immunizes

providers of interactive computer services against liability

arising from content created by third parties.” Roommates,

521 F.3d at 1162 (footnote omitted); see also Barnes,

570 F.3d at 1100 (observing § 230(c)(1) “precludes

liability”). This limitation of liability had the dual purposes

of “promot[ing] the free exchange of information and ideas

over the Internet and . . . encourag[ing] voluntary monitoring

for offensive or obscene material.” Carafano, 339 F.3d 1122.

Because the focus of § 230(c)(1) is limiting liability, the

conduct relevant to the statute’s focus occurs at the location

associated with the imposition of liability. RJR Nabisco,

136 S. Ct. at 2101.

In other words, because § 230(c)(1) focuses on limiting

liability, the relevant conduct occurs where immunity is

imposed, which is where Congress intended the limitation of

liability to have an effect, rather than the place where the

claims principally arose. As such, the conduct relevant to

§ 230’s focus is entirely within the United States—i.e., at the

situs of this litigation. See Force, 934 F.3d at 74 (“The

regulated conduct—the litigation of civil claims in federal

courts—occurs entirely domestically in its application

here.”). We therefore conclude the Gonzalez Plaintiffs’

claims involve a domestic application of § 230.

GONZALEZ V. GOOGLE 29

C

The Gonzalez Plaintiffs also argue that § 230 immunity

does not shield liability arising from violations of the ATA

because § 230 was impliedly repealed. Specifically, they

contend that when Congress amended the ATA in 2016 by

enacting JASTA, it impliedly repealed § 230. In support of

this argument, the Gonzalez Plaintiffs rely on JASTA’s

statement of purpose, which explains that the aim of the

amendment was “to provide civil litigants with the broadest

possible basis, consistent with the Constitution of the United

States, to seek relief” for acts of international terrorism.

JASTA § 2(b) (emphasis added). As explained, JASTA

altered the ATA by adding, among other things, secondary

liability. See 18 U.S.C. § 2333(d). Despite its broad purpose,

JASTA did not impliedly repeal § 230.

“[A]bsent a clearly expressed congressional intention,

repeals by implication are not favored.” Branch v. Smith,

538 U.S. 254, 273 (2003) (internal quotation marks and

citations omitted). “An implied repeal will only be found

where provisions in two statutes are in ‘irreconcilable

conflict,’ or where the latter Act covers the whole subject of

the earlier one and ‘is clearly intended as a substitute.’” Id.

(quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503

(1936)). “Irreconcilable conflict occurs if ‘there is a positive

repugnancy’ between competing provisions or if those

provisions cannot ‘mutually co-exist.’” King v. Blue Cross

& Blue Shield of Ill., 871 F.3d 730, 740 (9th Cir. 2017)

(quoting Radzanower v. Touche Ross & Co., 426 U.S. 148,

155 (1976)). “[W]hen two statutes are capable of co-

existence, it is the duty of the courts . . . to regard each as

effective.” Id. (alterations in original) (quoting Radzanower,

426 U.S. at 155).

30 GONZALEZ V. GOOGLE

To determine whether JASTA had any effect on the

application of § 230, we start by examining the statutory

language, and not—as the Gonzalez Plaintiffs

urge—JASTA’s statement of purpose. Preambles and

prefatory language are insufficient to alter the substance of

the phrases they precede, even when codified. See, e.g.,

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,

1978 (2016) (observing that the “clause announc[ing] an

objective . . . [did] not change the plain meaning of the

operative clause”). The Gonzalez Plaintiffs do not identify

any substantive provision of JASTA that conflicts with § 230.

As we have recognized, § 230 protects from liability only a

specific class of defendants facing a particular type of

claim—i.e., it protects providers and users of interactive

computer services from claims seeking to treat them as

publishers or speakers of information provided by others. See

Barnes, 570 F.3d at 1100–01; see also § 230(c)(1). Thus, by

its own terms, § 230 creates “an affirmative defense to

liability under Section 2333 [of the ATA] for only the narrow

set of defendants and conduct to which Section 230 applies.”

Force, 934 F.3d at 72. There is no provision of JASTA to the

contrary. JASTA expanded the scope of § 2333 liability for

acts of international terrorism, see 18 U.S.C. § 2333(d), but

it did not modify or repeal § 230 immunity, Force, 934 F.3d

at 72 (“JASTA merely expanded Section 2333’s cause of

action to secondary liability; it provides no obstacle . . . to

applying Section 230.”).

Accordingly, JASTA and § 230(c)(1) can both be

enforced without contradicting the other, or depriving the

other of “any meaning at all.” Radzanower, 426 U.S. at 153

(quoting T. Sedgwick, The Interpretation of Statutory and

Constitutional Law 98 (2d ed. 1874)). Courts have “not

hesitated to give effect to two statutes that overlap, so long as

GONZALEZ V. GOOGLE 31

each reaches some distinct cases.” J.E.M. Ag Supply, Inc. v.

Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144 (2001). Under

the Gonzalez Plaintiffs’ reading of JASTA, any liability-

imposing statute enacted after § 230 would have to be

construed to limit § 230 immunity. Such a reading runs

directly contrary to the presumption against finding implied

repeal. For these reasons, we conclude JASTA did not

impliedly repeal § 230.

D

Finally, the Gonzalez Plaintiffs argue that § 230 immunity

can never apply to ATA claims because the ATA permits

private civil enforcement of counter-terrorism provisions that

otherwise give rise to criminal liability, and § 230(e)(1)

includes an exception providing that “[n]othing in this section

shall be construed to impair the enforcement of . . . any . . .

Federal criminal statute.” 47 U.S.C. § 230(e)(1). Google

responds that the exception in § 230(e)(1) extends only to

criminal prosecutions, not to actions for civil damages like

this one. On this point, Google has the better argument.

Courts have consistently held that § 230(e)(1)’s limitation

on § 230 immunity extends only to criminal prosecutions, and

not to civil actions based on criminal statutes. For example,

the First Circuit concluded that a civil remedy provision in

the Trafficking Victims Protection Reauthorization Act,

which allowed victims to bring suit against perpetrators of

sex trafficking, did not fall within the § 230(e)(1) exception.

Doe v. Backpage.com, LLC, 817 F.3d 12, 23 (1st Cir. 2016).

The court principally relied on the meaning of the statutory

phrase “enforcement of . . . any . . . Federal criminal statute,”

which excludes civil statutes, but also reasoned that any

ambiguity in the subsection’s text was resolved by its title,

32 GONZALEZ V. GOOGLE

“[n]o effect on criminal law,” id. (alteration in original),

because this language “indicate[d] that the provision [was]

limited to criminal prosecutions,” id. The Second Circuit

recently agreed with this analysis when it considered the

application of § 230 to ATA claims. See Force, 934 F.3d

at 72 (“We . . . join the First Circuit in concluding that

Section 230(e)(1) is ‘quite clearly . . . limited to criminal

prosecutions.’” (second alteration in original) (quoting

Backpage.com, 817 F.3d at 23)). We agree with the First and

Second Circuits, and hold that § 230(e)(1) is limited to

criminal prosecutions. Accordingly, § 230(e)(1) does not

preclude the application of § 230(c)(1) immunity.

E

Having concluded that the Gonzalez Plaintiffs’ claims are

not categorically excluded from the reach of § 230 immunity,

we next consider the application of § 230 to the Gonzalez

TAC. The Gonzalez Plaintiffs argue that the immunity

afforded by § 230 does not bar their claims because § 230

immunizes only those who publish content created by third

parties, and their claims are directed to content created by

Google. Google responds that the content the TAC

challenges was indeed created by third parties—presumably,

ISIS—and that the Gonzalez Plaintiffs’ claims impermissibly

seek to treat Google as a publisher of that content. We affirm

the district court’s ruling that § 230 bars all of the TAC’s

claims except to the extent the TAC presents claims premised

on the allegation that Google shared advertising revenue with

ISIS.8

8

The Gonzalez Plaintiffs also argue that it was improper for the

district court to consider the application of § 230 on a motion to dismiss.

We disagree. “Whether a particular ground for opposing a claim may be

GONZALEZ V. GOOGLE 33

Section 230(c)(1) precludes liability for “(1) a provider or

user of an interactive computer service (2) whom a plaintiff

seeks to treat . . . as a publisher or speaker (3) of information

provided by another information content provider.”9 Barnes,

570 F.3d at 1100–01 (footnote omitted). We first address the

Gonzalez Plaintiffs’ theories of liability that are not directed

to revenue-sharing, considering each element of § 230

separately.

1

As to the first element of § 230, the parties do not dispute

that Google is an “interactive computer service” provider as

defined in 47 U.S.C. § 230(f)(2). We agree. Roommates,

521 F.3d at 1162 n.6 (“[T]he most common interactive

computer services are websites.”); see also Kimzey v. Yelp!,

Inc., 836 F.3d 1263, 1268 (9th Cir. 2016) (“Yelp is plainly a

provider of an ‘interactive computer service’ . . . , a term that

the basis for dismissal for failure to state a claim depends on whether the

allegations in the complaint suffice to establish that ground.” Jones v.

Bock, 549 U.S. 199, 215 (2007). Here, “the ‘allegations in the complaint

suffice to establish’ the defense,” and thus the “affirmative defense may

be considered properly.” Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th

Cir. 2013) (quoting Jones, 549 U.S. at 215); see also Ricci v. Teamsters

Union Local 456, 781 F.3d 25, 27 (2d Cir. 2015) (per curiam) (considering

whether § 230 immunity barred plaintiffs’ claims on a 12(b)(6) motion to

dismiss).

9

Barnes limited its summary of § 230(c)(1) eligibility requirements

to instances where “plaintiff[s] seeks to treat [the defendant], under a state

law cause of action, as a publisher or speaker” because that case only

concerned state law claims. 570 F.3d at 1100 (emphasis added). In

Roommates, we acknowledged that § 230 immunity is not limited to cases

in which plaintiffs assert state law claims. 521 F.3d at 1164; see also

Barnes, 570 F.3d at 1100 n.4.

34 GONZALEZ V. GOOGLE

we interpret expansively under the CDA.” (quotations and

alterations omitted)).

2

As to the second element, the Gonzalez Plaintiffs argue

their claims do not inherently require a court to treat Google

as a publisher or speaker. Google responds that the thrust of

the Gonzalez Plaintiffs’ claims is that Google did not do

enough to block or remove content, and that such claims

necessarily require the court to treat Google as a publisher.

On this point, we agree with Google.

What matters when we assess this element is “whether the

cause of action inherently requires the court to treat the

defendant as the ‘publisher or speaker’ of content provided by

another.” Barnes, 570 F.3d at 1102. This element is satisfied

when “the duty that the plaintiff alleges the defendant

violated derives from the defendant’s status or conduct as a

‘publisher or speaker.’” Id.

The Gonzalez Plaintiffs argue that their claims do not

treat Google as a publisher, but instead assert a simple “duty

not to support terrorists.” They maintain that just as the ATA

prohibits a retailer like Wal-Mart “from supplying fertilizer,

knives, or even food to ISIS,” the ATA prohibits Google from

supplying ISIS with a communication platform. The

Gonzalez Plaintiffs’ characterization of their claim as

asserting a “duty not to support terrorists” overlooks that

publication itself is the form of support Google allegedly

provided to ISIS. See Force, 934 F.3d at 65 (recognizing that

supplying a platform and communication services “falls

within the heartland of what it means to be the ‘publisher’ of

information under Section 230(c)(1)”). The Plaintiffs’ non-

GONZALEZ V. GOOGLE 35

revenue sharing claims seek to impose liability for the content

Google allowed to be posted on its platform.

Publishing encompasses “any activity that can be boiled

down to deciding whether to exclude material that third

parties seek to post online . . . .” Roommates, 521 F.3d at

1170–71. “[P]ublication involves reviewing, editing, and

deciding whether to publish or to withdraw from publication

third-party content.” Barnes, 570 F.3d at 1102; see also

Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir.

2014) (“[T]he very essence of publishing is making the

decision whether to print or retract a given piece of content

. . . .”). Here, the Gonzalez Plaintiffs assert that Google failed

to prevent ISIS from using its platform, and thereby allowed

ISIS to disseminate its message of terror. Because the non-

revenue sharing claims seek to impose liability for allowing

ISIS to place content on the YouTube platform, they seek to

treat Google as a publisher.

3

The Gonzalez Plaintiffs argue that Google does more than

merely republish content created by third parties; the TAC

alleges that Google “creat[es]” and “develop[s]” the ISIS

content that appears on YouTube, at least in part, and

therefore receives no protection under § 230. Again, we

disagree. This argument is precluded by this court’s § 230

precedents.

The Gonzalez Plaintiffs are correct that § 230 immunity

only applies to the extent interactive computer service

providers do not also provide the challenged information

content. Roommates, 521 F.3d at 1162–63; see also

Carafano, 339 F.3d at 1123. An “information content

36 GONZALEZ V. GOOGLE

provider” is defined as “any person or entity that is

responsible, in whole or in part, for the creation or

development of information provided through the Internet or

any other interactive computer service.” 47 U.S.C.

§ 230(f)(3) (emphasis added).

We have held that a website that “creat[es] or develop[s]”

content “by making a material contribution to [its] creation or

development” loses § 230 immunity. Kimzey, 836 F.3d

at 1269. A “material contribution” does not refer to “merely

. . . augmenting the content generally, but to materially

contributing to its alleged unlawfulness.” Roommates,

521 F.3d at 1167–68 (emphasis added). This test “draw[s]

the line at the ‘crucial distinction between, on the one hand,

taking actions” to display “actionable content and, on the

other hand, responsibility for what makes the displayed

content [itself] illegal or actionable.” Kimzey, 836 F.3d at

1269 n.4 (internal quotation marks omitted) (quoting Jones v.

Dirty World Ent. Recordings LLC, 755 F.3d 398, 413–14 (6th

Cir. 2014)). Other circuits have adopted this “material

contribution” test, acknowledging that making a material

contribution does not mean “merely taking action that is

necessary to the display of the allegedly illegal content,” but

rather, “being responsible for what makes the displayed

content allegedly unlawful.” Dirty World Ent., 755 F.3d

at 410; see also, e.g., FTC v. LeadClick Media, LLC, 838 F.3d

158, 176 (2d Cir. 2016); Klayman, 753 F.3d at 1358; Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

257–58 (4th Cir. 2009); FTC v. Accusearch Inc., 570 F.3d

1187, 1197–1201 (10th Cir. 2009). Absent this sort of

“material contribution,” Google does not qualify as an

GONZALEZ V. GOOGLE 37

“information content provider,” and may be eligible for § 230

immunity. See Kimzey, 836 F.3d at 1269–70.10

Plainly, an interactive computer service does not create or

develop content by merely providing the public with access

to its platform. A “website does not create or develop content

when it merely provides a neutral means by which third

parties can post information of their own independent

choosing online.” Kimzey, 836 F.3d at 1270 (quoting

Klayman, 753 F.3d at 1358). Thus, in Kimzey, we concluded

that a provider does not create or develop content when its

website “does ‘absolutely nothing to enhance the defamatory

sting of the message’ beyond the words offered by the [third-

party] user.” Id. (quoting Roommates, 521 F.3d at 1172).

The Gonzalez Plaintiffs concede that Google did not

initially create any ISIS videos, but allege that Google creates

the “mosaics” by which that content is delivered. According

to the Gonzalez TAC, Google makes a material contribution

to the unlawfulness of ISIS content by pairing it with selected

advertising and other videos because “pairing” enhances user

engagement with the underlying content. Our case law

forecloses the argument that this type of pairing vitiates § 230

immunity.

10

The Gonzalez Plaintiffs argue in passing that the district court erred

by “conflat[ing]” the definitions of “creation” and “development” in

§ 230(f)(3). According to the Gonzalez Plaintiffs, because Roommates

described its “material contribution” test in the context of construing

“development,” it “has nothing to do with the definition of ‘creation.’”

Whatever the distinction between creation and development, our case law

makes clear that an entity that does not materially contribute to the alleged

unlawfulness of the content is neither a creator nor a developer for

purposes of § 230(f)(3). See Kimzey, 836 F.3d at 1269–70.

38 GONZALEZ V. GOOGLE

In Roommates, we recognized that a website is not

transformed into a content creator or developer by virtue of

supplying “neutral tools” that deliver content in response to

user inputs. See 521 F.3d at 1171; see also id. at 1169;

Kimzey, 836 F.3d at 1270. Roommates relied on our earlier

decision in Carafano, which concerned a prankster’s

unauthorized creation of a libelous profile impersonating

actress Christianne Carafano on an online dating site.

Roommates, 521 F.3d at 1171; see also Carafano, 339 F.3d

at 1121–22. Carafano sued the online dating site for invasion

of privacy, misappropriation of the right of publicity,

defamation, and negligence. Carafano, 339 F.3d at 1121–22.

We determined that the dating website in Carafano

“provided neutral tools specifically designed to match

romantic partners depending on their voluntary inputs.”

Roommates, 521 F.3d at 1172. The website was not

transformed into the creator or developer of libelous content

contained in users’ dating profiles, even though its

matchmaking functionality allowed that content to be more

effectively disseminated. See id. Carafano held that the

dating website’s “decision to structure the information

provided by users [in order to] . . . offer additional features,

such as ‘matching’ profiles with similar characteristics” was

consistent with § 230 immunity. 339 F.3d at 1124–25. “[S]o

long as a third party willingly provides the essential published

content, the interactive [computer] service provider receives

full immunity regardless of the specific editing or selection

process.” Id. at 1124.

Critically, Carafano’s “neutral tools” were neutral

because the website did not “encourage the posting of

defamatory content” by merely providing a means for users

to publish the profiles they created. Roommates, 521 F.3d at

GONZALEZ V. GOOGLE 39

1171. “[I]ndeed, the defamatory posting was contrary to the

website’s express policies.” Id.

In contrast, the defendant in Roommates operated a

website for matching renters with prospective tenants that did

contribute to the alleged illegality. Before users could search

listings or post housing opportunities, the website required

them to create profiles. Id. at 1161. To do so, users were

directed through a series of questions to disclose their sex,

sexual orientation, and whether they had children. Id. They

were also required to describe their preferred renter or tenant

with respect to these same three criteria, and encouraged to

“provide ‘Additional Comments’ describing themselves and

their desired roommate in an open-ended essay.” Id.

The plaintiffs in Roommates alleged that the website

operator violated federal and state laws barring discrimination

in housing. Id. at 1162. The defendant website operator

argued that it was entitled to § 230 immunity. Id. Our en

banc court concluded the website—by requiring users to

disclose their sex, sexual orientation, whether they had

children, and the traits they preferred in their roommate—was

designed to encourage users to post content that violated fair

housing laws. Id. at 1161, 1164–66. “By requiring

subscribers to provide the information as a condition of

accessing its service,” and requiring subscribers to choose

between “a limited set of pre-populated answers” the website

became “much more than a passive transmitter,” and instead

became “the developer, at least in part, of that information.”

Id. at 1166. The Roommates website did not employ “neutral

tools”; it required users to input discriminatory content as a

prerequisite to accessing its tenant-landlord matching service.

See id. at 1169. The website therefore lost its § 230 immunity

with respect to the discriminatory content it prompted, but it

40 GONZALEZ V. GOOGLE

retained immunity for generically asking users to provide

“Additional Comments” without telling them “what kind of

information they should or must include.” Id. at 1174.

We recently revisited the scope of § 230 immunity in

Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093 (9th

Cir. 2019). There, an online messaging board called the

Experience Project allowed users to share first-person

experiences, post and answer questions, and interact with

other users about various topics. Id. at 1094. A user named

Wesley Greer posted an inquiry about opportunities to buy

heroin, and received a response from another user. Id. at

1095. A day after meeting up with the responder, Greer died

because the heroin he purchased had been laced with

fentanyl. Id. Greer’s mother filed suit against the website

operator, and the website moved to dismiss based on § 230

immunity. Id. at 1095–96.

The plaintiff in Dyroff argued that the website created and

developed online content because the website “used features

and functions, including algorithms, to analyze user posts . . .

and recommend other user groups.” Id. at 1098. We

concluded “[t]hese functions—recommendations and

notifications—[were] tools meant to facilitate the

communication and content of others,” and “not content in

and of themselves.” Id. The message board in Dyroff

employed neutral tools similar to the ones challenged by the

Gonzalez Plaintiffs. Though we accept as true the TAC’s

allegation that Google’s algorithms recommend ISIS content

to users, the algorithms do not treat ISIS-created content

differently than any other third-party created content, and

thus are entitled to § 230 immunity. Id.; see also Roommates,

521 F.3d at 1171–72; Carafano, 339 F.3d at 1124.

GONZALEZ V. GOOGLE 41

We conclude the TAC does not allege that Google’s

YouTube service is materially distinguishable from the

matchmaking website at issue in Carafano or the algorithms

employed by the message board in Dyroff. It alleges that

Google recommends content—including ISIS videos—to

users based upon users’ viewing history and what is known

about the users. The Gonzalez Plaintiffs allege that Google

similarly targets users for advertising based on the content

they have selected and other information about users. In this

way, a user’s voluntary actions inform Google about that

user’s preferences for the types of videos and advertisements

the user would like to see. Rather than suggesting matches

for dating, Google matches what it knows about users based

on their historical actions and sends third-party content to

users that Google anticipates they will prefer. This system is

certainly more sophisticated than a traditional search engine,

which requires users to type in textual queries, but the core

principle is the same: Google’s algorithms select the

particular content provided to a user based on that user’s

inputs. See Roommates, 521 F.3d at 1175 (observing that

search engines are immune under § 230 because they provide

content in response to a user’s queries “with no direct

encouragement to perform illegal searches or to publish

illegal content”).

The Gonzalez complaint is devoid of any allegations that

Google specifically targeted ISIS content, or designed its

website to encourage videos that further the terrorist group’s

mission. Instead, the Gonzalez Plaintiffs’ allegations suggest

that Google provided a neutral platform that did not specify

or prompt the type of content to be submitted, nor determine

particular types of content its algorithms would promote. The

Gonzalez Plaintiffs concede Google’s policies expressly

prohibited the content at issue. See id. at 1171. Accordingly,

42 GONZALEZ V. GOOGLE

the type of algorithm challenged here, without more, is

indistinguishable from the one in Dyroff and it does not

deprive Google of § 230 immunity.

We are not alone in reaching this conclusion. In a case

involving allegations that Facebook unlawfully provided a

communications platform to Hamas in violation of the ATA,

the Second Circuit concluded that Facebook was entitled to

§ 230 immunity. Force, 934 F.3d at 64–72. The plaintiffs in

Force, surviving family members of victims allegedly

murdered by Hamas, sought to treat Facebook as a publisher

of third-party information, even where “it use[d] tools such as

algorithms that [were] designed to match that [third-party]

information with a consumer’s interests.” Id. at 66. The

Second Circuit recognized that Facebook’s algorithms may

have made content more visible or available, but held this did

not amount to developing the underlying information. Id. at

70. Force further observed that since the early days of the

Internet, websites “have always decided . . . where on their

sites . . . particular third-party content should reside and to

whom it should be shown” but no case law denies § 230

immunity “because of the ‘matchmaking’ results of such

editorial decisions.” Id. at 66–67. Our precedent requires

that we reach the same outcome and we hold, consistent with

our case law, that Google is entitled to § 230 immunity with

respect to the Gonzalez Plaintiffs’ theories of liability that are

not directed to revenue-sharing.

Our dissenting colleague argues § 230 should not

immunize Google from liability for the claims related to its

algorithms, which the dissent characterizes as amplifying and

contributing to ISIS’s originally posted content. The dissent

shares the views expressed by the partial concurrence and

GONZALEZ V. GOOGLE 43

dissent in Force. 934 F.3d at 76–89 (Katzmann, C.J.,

concurring in part, dissenting in part).

As explained, Force also arose from terrorist attacks. The

Force plaintiffs alleged that “Facebook collect[ed] detailed

information about its users” and Facebook’s algorithms

“utilize[d] the collected data to suggest friends, groups,

products, services and local events, and [to] target ads based

on each user’s input.” Id. at 82 (internal quotation marks

omitted).

For two reasons, the partial dissent in Force argued that

Facebook’s friend- and content-suggestion algorithms created

new content, and thus Facebook was not entitled to § 230

immunity. Id. First, the partial dissent reasoned that

Facebook’s algorithms communicated their own

message—i.e., the algorithms suggested the user would likely

be interested in certain additional content. Id. Second,

Facebook’s friend- and content-suggestion algorithms created

and maintained “real-world social networks.” Id.

Citing our circuit’s decision in Roommates, the partial

dissent in Force reasoned that suggestions generated by

Facebook’s algorithms based on users’ shared interest in

terrorism “directly related to the alleged illegality of the site,”

and therefore Facebook went beyond the role of a mere

publisher. Id. at 82–83. Respectfully, this is not a correct

reading of Roommates. The Roommates website required

users to identify themselves by sex, sexual orientation, and

whether they had children, then directed users to describe

their preferred tenant or landlord using pre-populated answers

concerning the same criteria. 521 F.3d at 1161, 1169–70. In

this way, the website prompted discriminatory responses that

violated fair housing laws. Id. at 1169–70. Because the

44 GONZALEZ V. GOOGLE

website itself generated the options for selecting a tenant or

landlord based on discriminatory criteria, our en banc court

concluded the website materially contributed to the

unlawfulness of the posted content. Id.

As we have explained, Google’s algorithms function like

traditional search engines that select particular content for

users based on user inputs. See Roommates, 521 F.3d at 1175

(observing search engines are entitled to § 230 immunity

because they provide content in response to users’ inquires

“with no direct encouragement to perform illegal searches or

to publish illegal content”). The TAC does not allege that

Google’s algorithms prompted ISIS to post unlawful content.

Nor does the TAC allege that Google’s algorithms treated

ISIS-created content differently than any other third-party

created content. See id. at 1171–72. Contrary to the dissent’s

assertion, we do not hold that “machine-learning algorithms

can never produce content within the meaning of Section

230.” We only reiterate that a website’s use of content-

neutral algorithms, without more, does not expose it to

liability for content posted by a third-party. Under our

existing case law, § 230 requires this result.

The dissent concedes algorithms can be neutral, but it

argues § 230 immunity should not apply when the published

“message itself is the danger.” But this is not where Congress

drew the line. At the time Congress enacted § 230, many

considered it “impossible for service providers to screen each

of their millions of postings for possible problems.”

Carafano, 339 F.3d at 1124 (emphasis added) (quoting

Zeran, 129 F.3d at 330–31). Against this backdrop, Congress

did not differentiate dangerous, criminal, or obscene content

from innocuous content when it drafted § 230(c)(1). Instead,

it broadly mandated that “[n]o provider . . . of an interactive

GONZALEZ V. GOOGLE 45

computer service shall be treated as the publisher or speaker

of any information provided by another information content

provider.” 47 U.S.C. § 230(c)(1) (emphasis added).

We share the dissent’s concerns about the breadth of

§ 230. As the dissent observes, “there is a rising chorus of

judicial voices cautioning against an overbroad reading of the

scope of Section 230 immunity,” and the feasibility of

screening for dangerous content is being revisited. For

example, websites are leveraging new technologies to detect,

flag, and remove large volumes of criminal content such as

child pornography.11 In light of the demonstrated ability to

detect and isolate at least some dangerous content, Congress

may well decide that more regulation is needed. In the

meantime, our decision does not extend what the dissent

rightly describes as § 230’s sweeping scope.

11

According to the Department of Justice, “the vast majority of

[National Center for Missing & Exploited Children (NCMEC)] reports

come from direct messaging services and are usually generated as a result

of platforms’ use of automated hashing measures (such as PhotoDNA),

grooming indicators, artificial intelligence and other technologies to

identify and report child sexual abuse material.” DOJ Office of Public

Affairs, Acting AG and Five Country Statement on the Temporary

Derogation to the ePrivacy Directive to Combat Child Sexual Exploitation

and Abuse, United States Department of Justice (Jan. 12, 2021),

https://www.justice.gov/opa/pr/acting-ag-and-five-country-statement-te

mporary-derogation-eprivacy-directive-combat-child. Facebook reports

that “[i]n addition to photo-matching technology, [Facebook is] using

artificial intelligence and machine learning to proactively detect child

nudity and previously unknown child exploitative content when it’s

uploaded” and to report it to NCMEC. See Antigone Davis, New

Technology to Fight Child Exploitation, Facebook (Oct. 24, 2018),

https://about.fb.com/news/2018/10/fighting-child-exploitation.

46 GONZALEZ V. GOOGLE

In his partial concurrence and partial dissent in Force,

Chief Judge Katzmann provided a thorough analysis of

§ 230’s legislative history. Force, 934 F.3d at 77–80

(Katzmann, C.J., concurring in part and dissenting in part).

The Force partial dissent persuasively explains that when it

enacted § 230, “Congress was focused squarely on protecting

minors from offensive online material” and sought to

“provide[] ‘Good Samaritan’ protections from civil liability

for providers or users of an interactive computer service.” Id.

at 79–80 (quoting S. Rep. No. 104-230, at 194 (1996) (Conf.

Rep.)). Despite this clear goal, the language Congress

adopted in § 230(c)(1) cuts a much wider swath. Id.

(“Whatever prototypical situation its drafters may have had

in mind, § 230(c)(1) does not limit its protection to situations

involving ‘obscene material’ provided by others, instead

using the expansive word ‘information.’”). Chief Judge

Katzmann urged his colleagues to conclude § 230(c)(1) need

not be interpreted to immunize websites’ friend- and content-

suggestion algorithms, but as we explain, Ninth Circuit case

law forecloses his argument.

In sum, though we agree the Internet has grown into a

sophisticated and powerful global engine the drafters of § 230

could not have foreseen, the decision we reach is dictated by

the fact that we are not writing on a blank slate. Congress

affirmatively immunized interactive computer service

providers that publish the speech or content of others. 12

12

The dissent would create a new federal common law cause of action

treating social media companies as makers and sellers of products through

forced advertising, thereby circumventing § 230’s expansive immunity.

Even if we agree Congress should act to narrow the scope of § 230

immunity or regulate the use of neutral algorithms, we are not free to

manufacture entirely new causes of action merely because the political

branches have not acted. The Supreme Court has explained “[t]he vesting

GONZALEZ V. GOOGLE 47

F

The Gonzalez Plaintiffs’ revenue-sharing theory is

distinct from the other theories of liability raised in the TAC.

This theory is premised on the allegation that because it

shared advertising revenue with ISIS, Google should be held

directly liable for providing material support to ISIS pursuant

to § 2333(a) and secondarily liable for providing substantial

assistance to ISIS pursuant to § 2333(d). The district court’s

order excluded the Gonzalez Plaintiffs’ revenue-sharing

claims from its application of § 230. On appeal, Google does

not separately respond to the Gonzalez Plaintiffs’ revenue-

sharing claims. Instead, Google lumps all of the TAC’s

theories together for purposes of its § 230 argument. Based

on our review of case law, the question whether § 230

immunizes an interactive computer service provider’s

revenue-sharing payments appears to be one of first

impression for the courts of appeals. We conclude that § 230

does not immunize Google from the claims premised on

revenue-sharing.

Plaintiffs allege that Google generates revenue by selling

advertising space through its AdSense program, including

advertising space that appears on YouTube. Through

AdSense, Google sells advertising opportunities and displays

advertisements to YouTube viewers accessing other content.

Google targets advertisements based on the content of the

of jurisdiction in the federal courts does not in and of itself give rise to

authority to formulate federal common law . . . nor does the existence of

congressional authority under Art. I mean that federal courts are free to

develop a common law to govern those areas until Congress acts.” Texas

Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–41 (1981)

(internal citation omitted).

48 GONZALEZ V. GOOGLE

advertisements, what is known about the viewer, and the

content of the posted video. If a YouTube user elects to

participate in the AdSense program, Google shares with the

user a portion of the revenue generated by the advertisements

on the user’s videos. For example, suppose a user

participating in the AdSense program posts a video tutorial

about proper house-painting techniques. In this scenario,

viewers of the video tutorial might see advertisements for

paint or paintbrushes, and Google would share a portion of

the resulting ad revenue with the user that posted the video

tutorial.

The Gonzalez Plaintiffs allege that “each YouTube video

must be reviewed and approved by Google before Google

will permit advertisements to be placed with that video,” and

that “Google has reviewed and approved ISIS videos” for

advertising. The Gonzalez Plaintiffs also allege that, because

it approved ISIS videos for the AdSense program, Google

shared a percentage of revenues generated from those

advertisements with ISIS.

We have explained that § 230 grants immunity from

claims seeking to hold providers of interactive computer

services liable as publishers or speakers of third-party

content. The Gonzalez Plaintiffs’ revenue-sharing allegations

are not directed to the publication of third-party information.

These allegations are premised on Google providing ISIS

with material support by giving ISIS money. Thus, unlike the

Gonzalez Plaintiffs’ other allegations, the revenue-sharing

theory does not depend on the particular content ISIS places

on YouTube; this theory is solely directed to Google’s

unlawful payments of money to ISIS.

GONZALEZ V. GOOGLE 49

It is well settled that § 230 “bars only liability that treats

a website as a publisher or speaker of content provided by

somebody else.” Internet Brands, 824 F.3d at 851. Perhaps

the best indication that the Gonzalez Plaintiffs’ revenue-

sharing allegations are not directed to any third-party content

is that Google’s alleged violation of the ATA could be

remedied without changing any of the content posted by

YouTube’s users. See id.; see also HomeAway.com, Inc. v.

City of Santa Monica, 918 F.3d 676, 683 (9th Cir. 2019)

(concluding that a city ordinance that did “not proscribe,

mandate, or even discuss the content of the listings that the

[plaintiffs] display[ed] on their websites” fell outside the

scope of immunity provided by § 230). The Gonzalez

Plaintiffs’ allegations of revenue-sharing do not seek to hold

Google liable for any content provided by a third-party.

Accordingly, we conclude that § 230 does not bar the

Gonzalez Plaintiffs’ claims premised on sharing revenue with

ISIS.13

IV

Having concluded that § 230 only immunizes Google

from liability for all of the Gonzalez Plaintiffs’ non-revenue

sharing claims, we next address whether, based on the TAC’s

revenue-sharing theory, the Gonzalez Plaintiffs’ adequately

allege claims for direct liability and secondary liability under

the ATA. We address the direct liability claims first.

13

The district court dismissed the revenue-sharing claims without

prejudice for failure to adequately allege proximate cause. The Gonzalez

Plaintiffs chose not to amend, and a final judgment was subsequently

entered on that basis.

50 GONZALEZ V. GOOGLE

The civil remedies provision of the ATA, 18 U.S.C.

§ 2333(a), “allows any United States national ‘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,’ to sue in federal court and recover treble damages and

attorney’s fees.” Fields, 881 F.3d at 743 (quoting § 2333(a)).

It is undisputed that the Gonzalez Plaintiffs, Taamneh

Plaintiffs, and Clayborn Plaintiffs are United States nationals.

The ATA includes several criminal provisions, “the

violation of which can provide the basis for a cause of action

under § 2333(a).” Id. The Gonzalez Plaintiffs argue that

Google directly committed acts of international terrorism by

providing material support for terrorism, providing material

support for foreign terrorist organizations, and financing

terrorism in violation of sections 2339A(a), 2339B(a)(1), and

2339C(c), respectively. They also allege that Google violated

Executive Order No. 13224, 31 C.F.R. Part 594, and

50 U.S.C. § 1705.

Section 2333(a) is directed to “act[s] of international

terrorism.” “[I]nternational terrorism” is statutorily defined

in 18 U.S.C. § 2331(1). See generally Fields, 881 F.3d at 743

n.3; Linde v. Arab Bank, PLC, 882 F.3d 314, 326–27 (2d Cir.

2018). Acts constituting international terrorism must “appear

to be intended—(i) to intimidate or coerce a civilian

population; (ii) to influence the policy of a government by

intimidation or coercion; or (iii) to affect the conduct of a

government by mass destruction, assassination, or

kidnapping.” Id. § 2331(1)(B).

The operative Gonzalez complaint contends that Google’s

conduct qualified as an act of “international terrorism,” citing

§ 2331(1). We conclude their complaint fails to plausibly

GONZALEZ V. GOOGLE 51

allege that Google directly perpetrated an act of international

terrorism as required by § 2331(1)(B).

Whether an act appears to be intended to intimidate or

coerce a civilian population or to influence or affect a

government, “does not depend on the actor’s beliefs, but

imposes on the actor an objective standard to recognize the

apparent intentions of actions.” Weiss v. Nat’l Westminster

Bank PLC, 768 F.3d 202, 207 n.6 (2d Cir. 2014); see also

Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685,

694 (7th Cir. 2008) (en banc) (“[I]t is a matter of external

appearance rather than subjective intent, which is internal to

the intender.”).

The Gonzalez Plaintiffs argue that the knowing provision

of resources to a terrorist organization necessarily constitutes

“international terrorism,” and satisfies the requirements

identified in § 2331(1)(B). We disagree. Nothing in the

statutory scheme suggests that material support always

qualifies as international terrorism because such conduct may

or may not objectively appear to be intended to intimidate or

coerce. Medical assistance rendered to known terrorists by

Doctors Without Borders illustrates this point. See Boim,

549 F.3d at 699. Such assistance might arguably provide

material support to terrorists in violation of § 2339B, but it

would not appear to be intended to intimidate or coerce a

civilian population, or to affect the conduct of a government.

See id. To qualify as international terrorism, the defendant’s

acts must satisfy each of the criteria contained in § 2331(1),

Linde, 882 F.3d at 325–26; see also Fields, 881 F.3d at 743

n.3, and “the provision of material support to a terrorist

organization does not invariably equate to an act of

international terrorism,” Linde, 882 F.3d at 326.

52 GONZALEZ V. GOOGLE

The Gonzalez Plaintiffs rely heavily on the Seventh

Circuit’s en banc decision in Boim, but that reliance is

misplaced. The issue in Boim was whether defendants who

had donated money to Hamas and Hamas-affiliated

charities—knowing that Hamas used its resources to finance

the killing of Israeli Jews—could be held liable under the

ATA for Hamas’s 1994 murder of an American teenager in

Israel. Boim, 549 F.3d at 688–690. The en banc court stated

that a knowing donor’s contributions to Hamas would satisfy

the definitional requirements of “international terrorism” set

forth in § 2331(1). Id. at 690, 694. Boim reasoned that

“donations to Hamas . . . would enable Hamas to kill or

wound, or try to kill” more people in Israel. Id. at 694. The

Seventh Circuit concluded that such donations would appear

to be intended to intimidate or coerce a civilian population

because of the foreseeability of these consequences.14 Id.

The Gonzalez Plaintiffs’ reliance on Boim is misplaced

because the allegations here are not at all similar to those in

Boim, which involved voluntary donations specifically and

purposefully directed to a foreign terrorist organization.

Taking as true the allegation that Google shared

advertising revenue with ISIS as part of its AdSense program,

that action does not permit the inference that Google’s actions

objectively appear to have been intended to intimidate or

coerce civilians, or to influence or affect governments. The

Seventh Circuit’s decision in Kemper v. Deutsche Bank AG,

911 F.3d 383 (7th Cir. 2018), illustrates this point. There, the

court concluded that the plaintiff failed to plausibly allege

14

We express no view on whether Boim would be decided the same

way today. Notably, that decision was issued before Congress enacted

JASTA, thereby creating secondary liability for aiding and abetting acts

of international terrorism. See 18 U.S.C. § 2333(d)(2).

GONZALEZ V. GOOGLE 53

that Deutsche Bank’s institution of procedures to evade U.S.

sanctions and facilitate Iranian banking transactions qualified

as international terrorism. Id. at 390. The court reasoned that

Deutsche Bank’s actions did “not appear intended to

intimidate or coerce any civilian population or government”

because, “[t]o the objective observer, its interactions with

Iranian entities were motivated by economics.” Id.

Similarly here, the Gonzalez Plaintiffs did not allege that

Google’s actions were motivated by anything other than

economic self-enrichment. The TAC alleges that Google is

a commercial service in the business of selling advertising,

and that “Google uses the AdSense monetization program to

earn revenue, and as an incentive to encourage users to post

videos on YouTube.” These allegations are easily

distinguished from those involving donations to a known

terrorist organization. See Boim, 549 F.3d at 690, 694. The

Gonzalez Plaintiffs did not allege that Google shared ISIS’s

vision and objectives, nor that Google intended ISIS to

succeed in any future acts of terrorism. Rather, the

complaint’s allegations suggest that Google split ad revenue

with ISIS in furtherance of its own financial best interest.

The TAC fails to allege that Google’s provision of

material support appeared to be intended to intimidate or

coerce a civilian population, or to influence or affect a

government as required by the ATA. See 18 U.S.C.

§ 2331(1)(B). For this reason, the Gonzalez complaint does

not adequately allege the requirements necessary to establish

direct liability for an act of international terrorism pursuant to

§ 2333(a), and we need not reach whether the Gonzalez

Plaintiffs sufficiently alleged that Google’s actions

proximately caused Nohemi Gonzalez’s death.

54 GONZALEZ V. GOOGLE

V

Turning to the Gonzalez Plaintiffs’ secondary liability

claims based on revenue-sharing, Google argues that the

Gonzalez complaint fails to state a claim for secondary

liability pursuant to 18 U.S.C. § 2333(d)(2). We agree.15

As originally enacted, the ATA allowed only claims

alleging direct liability against the perpetrators of acts of

international terrorism. Rothstein v. UBS AG, 708 F.3d 82,

97 (2d Cir. 2013); see also Linde, 882 F.3d at 319–20. In

2016, Congress amended the ATA by enacting JASTA,

which extends civil liability to persons who aid and abet by

providing substantial assistance to persons who commit acts

of international terrorism, and to those who conspire to

commit such acts. 18 U.S.C. § 2333(d)(2). Secondary

liability for aiding or abetting acts of terrorism applies only

when the principal act of international terrorism is

“committed, planned, or authorized by an organization . . .

designated as a foreign terrorist organization.” Id.

The Gonzalez Plaintiffs raise claims for both aiding-and-

abetting and conspiracy liability. We address these theories

separately.

15

The district court concluded that the Gonzalez Plaintiffs advanced

a revenue-sharing theory only with respect to their claims for direct

liability. We find the TAC somewhat ambiguous on this point, but

assume for purposes of deciding this appeal that the Gonzalez Plaintiffs

raised a revenue-sharing theory with respect to both their direct liability

and secondary liability claims.

GONZALEZ V. GOOGLE 55

A

Under § 2333(d)(2) of the ATA, “liability may be asserted

as to any person who aids and abets, by knowingly providing

substantial assistance” to “the person who committed . . . an

act of international terrorism” as set forth in § 2333(a).

18 U.S.C. § 2333(d)(2). JASTA specifies that the D.C.

Circuit’s decision in Halberstam v. Welch, 705 F.2d 472

(D.C. Cir. 1983), describes “the proper legal framework” for

assessing aiding-and-abetting liability under § 2333(d). Pub.

L. No. 144-222, § 2(a)(5), 130 Stat. at 852; see also Siegel v.

HSBC N. Am. Holdings, Inc., 933 F.3d 217, 223 (2d Cir.

2019).

Halberstam addressed the scope of secondary liability for

common law causes of action. See 705 F.2d at 474. The

plaintiff, Elliott Halberstam, was the widow of Michael

Halberstam. Id. Michael Halberstam was a physician killed

by Bernard Welch during the course of a burglary. Id.

Halberstam’s widow brought a wrongful death action against

Linda Hamilton, Welch’s live-in girlfriend, alleging that

Hamilton was civilly liable for Michael Halberstam’s death,

both as an aider-abettor and a co-conspirator. Id. at 474–76.

Hamilton provided assistance to Welch during the course of

his multi-year campaign of burglaries, including preparing

letters of sale for stolen goods, falsifying tax returns to

conceal income derived from stolen goods, maintaining

accounts on Welch’s behalf, and handling financial

transactions. Id. at 475, 486, 488. The D.C. Circuit

ultimately concluded that Hamilton was civilly liable for

Halberstam’s death, even though Welch killed Halberstam

during a robbery and Hamilton was not present. The court

concluded that Hamilton was liable under a conspiracy theory

and also an aiding-and-abetting theory. Id. at 489.

56 GONZALEZ V. GOOGLE

The scenario presented in Halberstam is, to put it mildly,

dissimilar to the one at issue here. But Congress selected

Halberstam as the governing standard for secondary liability

ATA claims because Halberstam “has been widely

recognized as the leading case regarding Federal civil aiding

and abetting . . . liability.” Pub. L. No. 144-222, § 2(a)(5),

130 Stat. at 852.

In Halberstam, the D.C. Circuit identified three elements

that a plaintiff must prove in order to establish aiding-and-

abetting liability: “(1) the party whom the defendant aids

must perform a wrongful act that causes an injury; (2) the

defendant must be generally aware of his role as part of an

overall illegal or tortious activity at the time that he provides

the assistance; [and] (3) the defendant must knowingly and

substantially assist the principal violation.” 705 F.2d at 477.

1

The first element of aiding and abetting liability requires

a showing that the party the defendant aided committed an act

of international terrorism that injured the plaintiff. 18 U.S.C.

§ 2333(d)(2); Halberstam, 705 F.2d at 477; see also Siegel,

933 F.3d at 223.16 The parties dispute whether the relevant

principal actor is the ISIS organization as a whole or the

individual terrorists who perpetrated the Paris Attacks. We

agree with the Gonzalez Plaintiffs that ISIS is the relevant

16

As noted, the ATA’s secondary liability provision only applies

where a designated “foreign terrorist organization” “committed, planned,

or authorized” the act of international terrorism. § 2333(d)(2). The parties

do not dispute that the Paris Attacks were an act of international terrorism,

nor do they dispute that the killing of Nohemi Gonzalez during the Paris

Attacks was an injury to the Gonzalez Plaintiffs.

GONZALEZ V. GOOGLE 57

“person who committed . . . an act of international terrorism.”

18 U.S.C. § 2333(d)(2).

The TAC alleges that coordinated teams of ISIS terrorists

planned and carried out the Paris Attacks. Specifically, it

alleges that the café shooters who murdered Nohemi

Gonzalez—Abaaoud, Abdeslam, and Akrouh—were

members of ISIS. The Gonzalez Plaintiffs further allege that

Abaaoud, the operational leader of the Paris Attacks, traveled

to Syria to join ISIS in March 2013, joined ISIS while in

Syria, and publicly declared his affiliation with ISIS. We

accept as true the allegations that, in 2014, Abaaoud posted

a link on his Facebook profile to an ISIS recruiting video in

which he described his life and role with ISIS, and, that in

2015, ISIS’s English-language magazine, Dabiq, featured an

interview with Abaaoud. These allegations distinguish the

TAC from the claims presented in Crosby v. Twitter, Inc.,

where the Sixth Circuit rejected the plaintiffs’ ATA claims

because the complaint contained “no allegations that ISIS was

involved with the Pulse Night Club shooting” perpetrated by

Omar Mateen. 921 F.3d 617, 626 (6th Cir. 2019); see also

18 U.S.C. § 2333(d)(2). We conclude the Gonzalez Plaintiffs

satisfied the first element of aiding-and-abetting liability

because the TAC plausibly alleged that ISIS, a designated

terrorist organization, “committed, planned, or authorized”

the Paris Attacks.

2

The second element of aiding-and-abetting liability

requires a showing that Google was generally aware of its

role in ISIS’s terrorist activities at the time it provided

assistance to ISIS. 18 U.S.C. § 2333(d)(2); Halberstam,

58 GONZALEZ V. GOOGLE

705 F.2d at 477; see also Linde, 882 F.3d at 329. The

Gonzalez Plaintiffs also satisfied this element.

Just as the Halberstam court concluded that Linda

Hamilton was generally aware of her role in Bernard Welch’s

ongoing burglary operation because she “knew about and

acted to support” it, the Gonzalez Plaintiffs must plausibly

allege that, by sharing revenue with ISIS, Google was aware

that it was assuming a role in ISIS’s terrorist activities. See

Halberstam, 705 F.2d at 488; see also Linde, 882 F.3d at 329

(requiring a showing that “the bank was ‘generally aware’

that [by providing financial services,] it was thereby playing

a ‘role’ in Hamas’s violent or life-endangering activities”

(quoting Halberstam, 705 F.2d at 477)). Notably, this

element does not require a showing of “the specific intent

demanded for criminal aiding and abetting culpability,” i.e.,

an “intent to participate in a criminal scheme as ‘something

that he wishes to bring about and seek by his action to make

it succeed.’” Linde, 882 F.3d at 329 (quoting Rosemond v.

United States, 572 U.S. 65, 76 (2014)). Nor does it require

that Google “knew of the specific attacks at issue.” Id.

The TAC adequately alleges that Google was aware of the

role it played in ISIS’s terrorist activities. Specifically, the

Gonzalez Plaintiffs allege that Google knowingly shared

advertising revenue with ISIS and that Google did so despite

numerous reports from news organizations that Google

placed advertisements on ISIS videos. Under these

circumstances, the allegation that Google knowingly gave

“fungible dollars to a terrorist organization” plausibly alleges

that Google was aware of the role it played in activities that

“may be ‘dangerous to human life.’” Cf. Kemper, 911 F.3d

at 390; see also Fields, 881 F.3d at 748; Boim, 549 F.3d

at 693.

GONZALEZ V. GOOGLE 59

We are mindful that “aiding and abetting an act of

international terrorism requires more than the provision of

material support to a designated terrorist organization.”

Linde, 882 F.3d at 329. Thus, the mens rea required for the

general awareness element of secondary liability under

§ 2333(d) may not be coextensive with the showing required

for material support under § 2339B. The latter “requires only

knowledge of the organization’s connection to terrorism, not

intent to further its terrorist activities or awareness that one is

playing a role in those activities.” See id. at 330 (citing

Holder v. Humanitarian L. Project, 561 U.S. 1, 16–17)

(2010); see also, e.g., Siegel, 933 F.3d at 224 (concluding

plaintiffs failed to plead general awareness with allegations

“suggest[ing] that in providing banking services to [a Saudi

Arabian bank], HSBC had little reason to suspect that it was

assuming a role in [al-Qaeda in Iraq’s] terrorist activities”).

But here, we are satisfied that the allegations indicating

Google knowingly contributed money to ISIS suffice to show

that Google understood it played a role in the violent and life-

endangering activities undertaken by ISIS, and therefore

establish the second element of aiding-and-abetting liability

for purposes of § 2333(d)(2).

3

The third element of aiding-and-abetting liability requires

that the plaintiff show the defendant knowingly and

substantially assisted the act of terrorism that injured the

plaintiff. 18 U.S.C. § 2333(d)(2); see also Halberstam,

705 F.2d at 488 (holding the defendant must have “knowingly

and substantially assist[ed] the principal violation”). This

element contains two components: (1) “knowing[]”

assistance, and (2) “substantial[]” assistance. See

Halberstam, 705 F.2d at 477; see also id. at 488 (evaluating

60 GONZALEZ V. GOOGLE

whether Linda Hamilton assisted Bernard Welch “with

knowledge that he had engaged in illegal acquisition of

goods” separate from considering whether her “assistance

was ‘substantial’”).

The Halberstam court identified six factors relevant to

assessing whether the substantial assistance component is

satisfied: “(1) the nature of the act encouraged, (2) the

amount of assistance given by defendant, (3) defendant’s

presence or absence at the time of the tort, (4) defendant’s

relation to the principal, (5) defendant’s state of mind, and

(6) the period of defendant’s assistance.” Linde, 882 F.3d

at 329 (citing Halberstam, 705 F.2d at 483–84).17

The parties dispute whether the relevant “principal

violation” for analyzing the third element is ISIS’s broader

campaign of terrorism or the Paris Attacks. See Halberstam,

705 F.2d at 488. But Halberstam explained that the extent of

liability under aiding-and-abetting encompasses

foreseeability, such that a defendant “who assists a tortious

act may be liable for other reasonably foreseeable acts done

in connection with it.” 705 F.2d at 484. For example, the

common law cases Halberstam drew upon established that a

17

In dicta, the Second Circuit suggested that these factors determine

“whether the defendant’s assistance was sufficiently knowing and

substantial to qualify as aiding and abetting.” Linde, 882 F.3d at 329 n.10

(emphasis added). However, Halberstam appears to treat “knowing”

assistance as an inquiry separate from “substantial” assistance. See

Halberstam, 705 F.2d at 478 (explaining that the listed factors aid “in

making th[e] determination” of “how much encouragement or assistance

is substantial enough” (emphasis added)). Indeed, the Halberstam court

explicitly acknowledged that “the scienter requirement in the third element

of aiding-abetting” requires that “an aider-abettor must knowingly assist

the underlying violation.” See id. at 485 n.14.

GONZALEZ V. GOOGLE 61

thirteen-year-old boy who broke into a church with some

companions could be held liable for damage to the church

caused by his companions’ failure to extinguish torches they

used to light their way in the church attic. Id. at 482–83

(citing Am. Family Mut. Ins. Co. v. Grim, 440 P.2d 621,

625–26 (Kan. 1968)). Because the need for lighting could

have been anticipated, “the boy who had not used a torch, nor

even expected one to be lighted, could be liable for the

damage caused by the torches.” Id. at 483. By contrast, the

Halberstam court cited an example from the Restatement

(Second) of Torts where liability was not imposed: if A

supplies wire cutters to B to allow B to unlawfully enter the

land of C to recapture chattels belonging to B, and B

intentionally sets fire to C’s house in the course of his

trespass, A is not liable for the destroying the house. Id. at

483 n.12 (quoting Restatement (Second) of Torts § 876, cmt.

d (1976)).

Halberstam concluded that Linda Hamilton was liable for

Welch killing Michael Halberstam because of the nature and

extent of her assistance to Welch’s illegal burglary enterprise.

Id. at 488. In the court’s view, the killing “was a natural and

foreseeable consequence of the activity Hamilton helped

Welch to undertake.” Id. “[W]hen she assisted him, it was

enough that she knew he was involved in some type of

personal property crime at night—whether as a fence, burglar,

or armed robber made no difference—because violence and

killing is a foreseeable risk in any of these enterprises.” Id.

We have little difficulty concluding that the Paris Attacks

were a foreseeable result of ISIS’s broader campaign of

terrorism. Accordingly, when assessing whether the TAC

satisfies the third element of aiding-and-abetting liability, we

consider ISIS’s broader campaign of terrorism to be the

relevant “principal violation.”

62 GONZALEZ V. GOOGLE

Pursuant to § 2333(d)(2), liability attaches to an aider-

abettor who “knowingly provid[es] substantial assistance.”

18 U.S.C. § 2333(d)(2) (emphasis added). Thus, a plaintiff

must show that the defendant “knowingly gave ‘substantial

assistance’ to someone who performed wrongful conduct.”

Halberstam, 705 F.2d at 478; see also id. at 485 n.14 (noting

“the scienter requirement in the third element” addresses the

issue of “whether an aider-abettor must knowingly assist the

underlying violation”).

We conclude that the Gonzalez Plaintiffs adequately

allege knowing assistance. The TAC alleges “each YouTube

video must be reviewed and approved by Google” before

advertisements are placed with that video, and “Google has

reviewed and approved ISIS videos . . . for ‘monetization,’”

and Google therefore “shared revenue with ISIS.” The TAC

alleges that, prior to the Paris Attacks, numerous news

organizations reported on Google’s placement of

advertisements in or alongside ISIS videos, and Google

responded to these media reports by stating it worked to

prevent ads from appearing on any video once it determined

the content was not appropriate for advertising partners.

In Halberstam, the knowledge requirement of the third

element was satisfied because Linda Hamilton’s actions

“were performed knowingly to assist Welch in his illicit

trade.” 705 F.2d at 486; see also id. at 488 (noting that

Hamilton had “assisted Welch with knowledge that he had

engaged in illegal acquisition of goods”). Here, the Gonzalez

Plaintiffs allege that Google reviewed and approved ISIS

videos for monetization and thereby knowingly provided ISIS

with financial assistance for its terrorist operations.

According to the TAC, Google did so despite its awareness

that these videos were created by ISIS and posted by ISIS

GONZALEZ V. GOOGLE 63

using known ISIS accounts. Taking these allegations as true,

they are sufficient to plausibly allege that Google’s assistance

was knowing as required by § 2333(d)(2).

That leaves the question whether the Gonzalez Plaintiffs

sufficiently allege that Google’s assistance was “substantial.”

Based on our review of the six Halberstam factors, we

conclude the Gonzalez Plaintiffs did not allege that Google’s

assistance rose to this level. See Linde, 882 F.3d at 329; see

also Halberstam, 705 F.2d at 483–84.

As to the first factor—the nature of the act

encouraged—Halberstam explained that the nature of the

principal’s act “dictates what aid might matter, i.e., be

substantial.” Halberstam, 705 F.2d at 484. For example,

verbal support might be of great import when a “defendant’s

war cry for more blood” contributes to an “assaulter’s

hysteria,” but less important in a case involving a defamation.

See id. Here, the Gonzalez Plaintiffs allege that Google

assisted ISIS’s long-running terrorist campaign. Financial

support is “indisputably important” to the operation of a

terrorist organization, id. at 488, and any money provided to

the organization may aid its unlawful goals. Fields, 881 F.3d

at 748; cf. Siegel, 933 F.3d at 225.

The second factor considers “the amount of assistance

given by the defendant.” Halberstam, 705 F.2d at 478. This

factor recognizes that not all assistance is equally important,

see id. at 484, and the TAC contains no information about the

amount of assistance provided by Google. It only alleges that

Google shared some advertising revenue with ISIS.

Third, we consider the defendant’s “presence or absence

at the time of the tort” to assess whether the defendant’s

64 GONZALEZ V. GOOGLE

assistance was “substantial.” Id. at 478. The Gonzalez

Plaintiffs concede that Google was not present at the time of

the Paris Attacks. However, if the relevant tort is viewed as

ISIS’s broader campaign of terrorism, including the

dissemination of propaganda on Google’s website before and

after the Paris Attacks, Google was arguably present for at

least some of the terroristic activities that comprise the

“principal violation.”

The fourth factor considers the defendant’s “relation” to

the principal, recognizing that some persons—e.g., those in

positions of authority, or members of a larger group—may

possess greater powers of suggestion. Id. at 478, 484.

Halberstam also cautioned that courts should be “especially

vigilant” in evaluating a spouse’s assistance, “so as not to

infuse the normal activities of a spouse with the aura of a

concerted tort.” Id. at 484. Google allowed members of ISIS

who posted videos on YouTube to opt into AdSense, and by

approving ISIS videos for monetization, Google agreed to

share some percentage of the resulting advertising revenue

with those ISIS members. Thus, the allegations in the TAC

describe arms-length business transactions between Google

and YouTube users who opted into the AdSense program.

The fifth factor is directed to the defendant’s “state of

mind.” Id. at 478. Evidence of a defendant’s state of mind

may show that a defendant was “one in spirit” with the

principal actor. Id. at 484. The Gonzalez Plaintiffs do not

allege that Google had any intent to finance, promote, or

carry out ISIS’s terrorist acts. See Siegel, 933 F.3d at 225.

Nor does the TAC suggest that Google shared any of ISIS’s

objectives. Instead, the allegations show, at most, that

Google intended to profit from the AdSense program. The

TAC incorporates by reference articles that indicate Google

GONZALEZ V. GOOGLE 65

took some steps to prevent ads from appearing on ISIS

videos.18

Finally, the sixth factor concerns the “duration of the

assistance provided.” Halberstam, 705 F.2d at 484.

Halberstam explained that “[t]he length of time an alleged

aider-abettor has been involved with a tortfeasor almost

certainly affects the quality and extent of their relationship

and probably influences the amount of aid provided as well;

additionally, it may afford evidence of the defendant’s state

of mind.” Id. Here, the TAC lacks specific allegations about

the length of time Google provided assistance to ISIS in the

form of revenue-sharing, but it cites several news articles

from March 2015 and March 2016 describing the placement

of advertisements on YouTube videos posted by ISIS. The

TAC also provides an example from a video published on

May 28, 2015. Thus, at most, the Gonzalez Plaintiffs allege

that advertisements were placed on ISIS’s YouTube videos

during those periods of time.

We conclude that these allegations fall short of

establishing that Google’s assistance was sufficiently

“substantial” for purposes of § 2333(d)(2) liability. When we

review an order granting a 12(b)(6) motion to dismiss we are

required to assess whether the allegations in the complaint,

taken as true, state a claim of substantial assistance. See

Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1177 (9th Cir.

2021) (“Our case law does not permit plaintiffs to rely on

anticipated discovery to satisfy Rules 8 and 12(b)(6); rather,

18

See, e.g., Ads Shown Before YouTube ISIS Videos

Catch Companies Off-Guard, NBC News (Mar. 10,

2015), http://www.nbcnews.com/storyline/isis-terror/ads-shown-

isis-videos-youtube-catchcompanies-guard-n320946.

66 GONZALEZ V. GOOGLE

pleadings must assert well-pleaded factual allegations to

advance to discovery”).

Although monetary support is undoubtedly important to

ISIS’s terrorism campaign, the TAC is devoid of any

allegations about how much assistance Google provided. As

such, it does not allow the conclusion that Google’s

assistance was substantial. Nor do the allegations in the TAC

suggest that Google intended to assist ISIS. Accordingly, we

conclude the Gonzalez Plaintiffs failed to state a claim for

aiding-and-abetting liability under the ATA. We do not

consider whether the identified defects in the Gonzalez

Plaintiffs’ revenue-sharing claims—principally, the absence

of any allegation regarding the amount of the shared

revenue—could be cured by further amendment because the

Gonzalez Plaintiffs were given leave to amend those claims

and declined to do so. See WMX Techs., Inc. v. Miller,

104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

B

Section 2333(d)(2) also permits claims for secondary

liability “as to any person . . . who conspires with the person

who committed . . . an act of international terrorism” as set

forth in § 2333(a). As with aiding-and-abetting liability,

JASTA specifies that the D.C. Circuit’s decision in

Halberstam provides “the proper legal framework” for

assessing conspiracy liability under § 2333(d). Pub. L. No.

144-222, § 2(a)(5), 130 Stat. at 852. Halberstam concluded

that proof of conspiracy requires three elements: (1) “an

agreement to do an unlawful act or a lawful act in an unlawful

manner,” (2) “an overt act in furtherance of the agreement by

someone participating in it,” and (3) “injury caused by the

act.” 705 F.2d at 487. We conclude the Gonzalez Plaintiffs’

GONZALEZ V. GOOGLE 67

TAC does not state an actionable claim for conspiracy

liability.

The TAC’s allegations are insufficient to plausibly

suggest that Google reached an agreement with ISIS to carry

out the Paris Attacks that caused Nohemi Gonzalez’s death.

Halberstam requires the overt act causing plaintiffs’ injury

must be “done pursuant to and in furtherance of the common

scheme.” Id. at 477. Google’s sharing of revenues with

members of ISIS does not, by itself, support the inference that

Google tacitly agreed to commit homicidal terrorist acts with

ISIS, where Nohemi Gonzalez’s murder was an overt act

perpetrated pursuant to, and in furtherance of, that common

scheme.19 We therefore conclude that the Gonzalez Plaintiffs

fail to state a claim for conspiracy liability under the ATA,

and affirm the district court’s dismissal with prejudice of the

TAC.

VI

We now turn to the Taamneh appeal. As we have

explained, although the complaints in Gonzalez and Taamneh

are similar, our decision in Taamneh is largely dictated by the

path Taamneh took to reach our court. Because the bulk of

the Gonzalez Plaintiffs’ claims were properly dismissed on

the basis of § 230 immunity, our decision in Gonzalez

principally focuses on whether the Gonzalez Plaintiffs’

19

The Gonzalez Plaintiffs seek to enlist the TAC’s allegation that

“Google . . . conspired with ISIS, its members[,] and affiliates” to

promote, plan, and carry out “the acts of international terrorism that

injured the plaintiffs.” But this conclusory allegation is insufficient to

survive a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555–56 (2007).

68 GONZALEZ V. GOOGLE

revenue-sharing theory sufficed to state a claim under the

ATA. In contrast, the district court in Taamneh did not reach

§ 230; it only addressed whether the Taamneh Plaintiffs

plausibly alleged violations of the ATA for purposes of Rule

12(b)(6). The Taamneh appeal is further limited by the fact

that the Taamneh Plaintiffs only appealed the dismissal of

their aiding-and-abetting claim.

The Taamneh Plaintiffs’ aiding-and-abetting claim stems

from Abdulkadir Masharipov’s murder of Nawras Alassaf at

the Reina nightclub on January 1, 2017. Masharipov’s

connection to ISIS is not disputed. He filmed his

“martyrdom” video, wherein he stated that he was going to

carry out a suicide attack in the name of ISIS, and requested

that his son grow up to be a suicide bomber like him.20 About

one year before the Reina Attack, ISIS instructed Masharipov

to move to Turkey with his family and await further orders.

ISIS provided Masharipov with an assault rifle, ammunition,

and stun grenades, and directed Masharipov when and where

to attack. ISIS also sent Masharipov footage taken inside the

Reina nightclub, and Masharipov viewed it at length to

memorize the floor plan in preparation for his attack.

1

The Taamneh Plaintiffs’ aiding-and-abetting claim is

governed by the standards set forth in Halberstam. The first

Halberstam element requires that “the party whom the

20

The operative complaint alleges “[m]artyrdom videos, shared via

Defendants’ websites, are tools of propaganda frequently used by ISIS.

These videos are used as psychological weapons in ISIS’s attempt to

establish validity for their actions, inspire fear in their enemies, or spread

their ideology for political or religious ambitions.”

GONZALEZ V. GOOGLE 69

defendant aids must perform a wrongful act that causes an

injury.” 705 F.2d at 477. The parties do not dispute that the

Reina Attack was an “act of international terrorism” that was

“committed, planned, or authorized” by ISIS. Nor do the

parties dispute that the Reina Attack caused the Taamneh

Plaintiffs’ injury—the killing of Nawras Alassaf.

2

The second Halberstam element of aiding-abetting

liability requires the defendant to be “generally aware of his

role as part of an overall illegal or tortious activity at the time

that he provides the assistance.” Id. The Taamneh Plaintiffs

also satisfied this element.

The Taamneh Plaintiffs allege that, at the time of the

Reina Attack, defendants were generally aware that ISIS used

defendants’ platforms to recruit, raise funds, and spread

propaganda in support of their terrorist activities. The FAC

alleges that, despite “extensive media coverage” and legal

and governmental pressure, defendants “continued to provide

these resources and services to ISIS and its affiliates, refusing

to actively identify ISIS’s Twitter, Facebook, and YouTube

accounts, and only reviewing accounts reported by other

social media users.” These allegations suggest the

defendants, after years of media coverage and legal and

government pressure concerning ISIS’s use of their platforms,

were generally aware they were playing an important role in

ISIS’s terrorism enterprise by providing access to their

platforms and not taking aggressive measures to restrict

ISIS-affiliated content. See Linde, 882 F.3d at 329; see also

Halberstam, 705 F.2d at 477.

70 GONZALEZ V. GOOGLE

3

The third Halberstam element requires the plaintiff to

allege the defendant knowingly and substantially assisted the

principal violation. 705 F.2d at 477. We conclude the

Taamneh Plaintiffs’ complaint satisfied this element.

The Taamneh Plaintiffs adequately allege that defendants

knowingly assisted ISIS. Specifically, the FAC alleges that

ISIS depends on Twitter, Facebook, and YouTube to recruit

individuals to join ISIS, to promote its terrorist agenda, to

solicit donations, to threaten and intimidate civilian

populations, and to inspire violence and other terrorist

activities. The Taamneh Plaintiffs’ complaint alleges that

each defendant has been aware of ISIS’s use of their

respective social media platforms for many years—through

media reports, statements from U.S. government officials,

and threatened lawsuits—but have refused to take meaningful

steps to prevent that use. The FAC further alleges that

Google shared revenue with ISIS by reviewing and approving

ISIS’s YouTube videos for monetization through the

AdSense program. Taken as true, these allegations

sufficiently allege that defendants’ assistance to ISIS was

knowing.

We next consider whether the Taamneh Plaintiffs

plausibly allege that defendants’ assistance was “substantial,”

applying the six Halberstam factors.21 First, the act

21

Many of the allegations we discuss in the context of Taamneh were

also raised in a similar form in the Gonzalez TAC. But because of the

application of § 230 immunity in Gonzalez, we did not have occasion to

consider them in our evaluation of the Gonzalez Plaintiffs’ aiding-and-

abetting claim.

GONZALEZ V. GOOGLE 71

encouraged is ISIS’s terrorism campaign, and the FAC

alleges that this enterprise was heavily dependent on social

media platforms to recruit members, to raise funds, and to

disseminate propaganda. The FAC alleges that by providing

ISIS with access to robust communications platforms free of

charge, defendants facilitated ISIS’s ability to reach and

engage audiences it could not otherwise reach, and served as

a matchmaker for people around the globe who were

sympathetic to ISIS’s vision. It also alleges ISIS’s terrorist

enterprise relies on financial support, as any money provided

to the organization may aid its unlawful goals. Fields,

881 F.3d at 748.

The second factor—the amount of assistance given by a

defendant—is addressed by the Taamneh Plaintiffs’

allegation that the social media platforms were essential to

ISIS’s growth and expansion. The Taamneh Plaintiffs allege

that, without the social media platforms, ISIS would have no

means of radicalizing recruits beyond ISIS’s territorial

borders. Before the era of social media, ISIS’s predecessors

were limited to releasing short, low-quality videos on

websites that could handle only limited traffic. According to

the FAC, ISIS recognized the power of defendants’ platforms,

which were offered free of charge, and exploited them. ISIS

formed its own media divisions and production companies

aimed at producing highly stylized, professional-quality

propaganda. The FAC further alleges that defendants’ social

media platforms were instrumental in allowing ISIS to instill

fear and terror in civilian populations. By using defendants’

platforms, the Taamneh Plaintiffs allege that ISIS has

expanded its reach and raised its profile beyond that of other

terrorist groups. These are plausible allegations that the

assistance provided by defendants’ social media platforms

72 GONZALEZ V. GOOGLE

was integral to ISIS’s expansion, and to its success as a

terrorist organization.

The third factor considers the defendant’s presence or

absence at the time of the tort. At oral argument, Taamneh

Plaintiffs unambiguously conceded the act of international

terrorism they allege is the Reina Attack itself. There is no

dispute that defendants were not present during the Reina

Attack.

Fourth, we consider the defendant’s relation to the

principal actor, ISIS. The FAC indicates that defendants

made their platforms available to members of the public, and

that billions of people around the world use defendants’

platforms. By making their platforms generally available to

the market, defendants allowed ISIS to exploit their

platforms; but like the Gonzalez TAC, these allegations

indicate that defendants had, at most, an arms-length

transactional relationship with ISIS. The alleged relationship

may be even further attenuated than the ones defendants have

with some of their other users because the FAC alleges

defendants regularly removed ISIS content and ISIS-affiliated

accounts. The Taamneh Plaintiffs do not dispute that

defendants’ policies prohibit posting content that promotes

terrorist activity or other forms of violence.

The fifth factor concerns the defendant’s state of mind.

Here, the Taamneh Plaintiffs do not allege that defendants

had any intent to further or aid ISIS’s terrorist activities, see

Siegel, 933 F.3d at 225, or that defendants shared any of

ISIS’s objectives. Indeed, the record indicates that

defendants took steps to remove ISIS-affiliated accounts and

videos. With respect to advertisements on ISIS YouTube

videos, the articles incorporated into the complaint suggest

GONZALEZ V. GOOGLE 73

that Google took at least some steps to prevent ads from

appearing on ISIS videos.

The sixth factor addresses the period of the defendant’s

assistance. The Taamneh Plaintiffs allege that defendants

provided ISIS with an effective online communications

platforms for many years. The FAC alleges that ISIS-

affiliated accounts first appeared on Twitter in 2010.

According to the Taamneh Plaintiffs’ FAC, ISIS used

Facebook as early as 2012, and used YouTube as early as

2013.

Taking the FAC’s allegations as true, we conclude the

Taamneh Plaintiffs adequately allege that defendants’

assistance to ISIS was substantial. The FAC alleges that

defendants provided services that were central to ISIS’s

growth and expansion, and that this assistance was provided

over many years.

We are mindful that a defendant’s state of mind is an

important factor, and that the FAC alleges the defendants

regularly removed ISIS-affiliated accounts and content. See

Halberstam, 705 F.2d at 488 (noting that Hamilton’s state of

mind “assume[d] a special importance” because her knowing

assistance evidenced “a deliberate long-term intention to

participate in an ongoing illicit enterprise” and an “intent and

desire to make the venture succeed”). But the Taamneh

Plaintiffs also allege that defendants allowed ISIS accounts

and content to remain public even after receiving complaints

about ISIS’s use of their platforms.

We also recognize the need for caution in imputing

aiding-and-abetting liability in the context of an arms-length

transactional relationship of the sort defendants have with

74 GONZALEZ V. GOOGLE

users of their platforms. Not every transaction with a

designated terrorist organization will sufficiently state a claim

for aiding-and-abetting liability under the ATA. But given

the facts alleged here, we conclude the Taamneh Plaintiffs

adequately state a claim for aiding-and-abetting liability.

VII

Finally, we turn to Clayborn. The claims in Clayborn

arise from a fatal shooting in San Bernardino, California in

which Sierra Clayborn, Tin Nguyen, and Nicholas Thalasinos

lost their lives. The district court did not address § 230

immunity and the Clayborn Plaintiffs only appeal the

dismissal of their ATA claim for aiding-and-abetting liability.

The Clayborn Plaintiffs allege that Google, Twitter, and

Facebook provided key assistance to the two shooters, Farook

and Malik. To plausibly allege an aiding-and-abetting claim

under the ATA, the Clayborn Plaintiffs must allege that ISIS

“committed, planned, or authorized” the San Bernardino

Attack. 18 U.S.C. § 2333(d)(2); see also Halberstam,

705 F.2d at 477. The district court held the Clayborn

Plaintiffs failed to plausibly allege that ISIS committed,

authorized, or planned the San Bernardino Attack because the

ties between the attack and ISIS were “insufficient to

plausibly plead claims for indirect liability.” The court

interpreted § 2333(d)(2) to require “evidence that ISIS itself

planned or carried out the attack,” requiring more than

allegations that ISIS sought to “generally radicalize”

individuals and that ISIS promoted terrorist attacks.

On appeal, the Clayborn Plaintiffs argue three “central

allegations” sufficiently connect ISIS to Farook and Malik:

(1) ISIS claimed responsibility for the San Bernardino Attack

GONZALEZ V. GOOGLE 75

after the fact; (2) Malik pledged allegiance to then-ISIS

leader Abu Bakr al-Baghdadi at some point during the attack;

and (3) “the FBI confirmed evidence that Farook had face to

face meetings a few years prior to the attack with five people

the Bureau investigated and labeled [as] having ‘links to

terrorism.’” From these allegations, the Clayborn Plaintiffs

urge us to infer “that ISIS authorized the San Bernardino

shooting sometime before the attack.”

We conclude the operative complaint does not plausibly

allege that ISIS “committed, planned, or authorized” the San

Bernardino Attack. It is undisputed that Farook and Malik

planned and carried out the mass killing, but the Clayborn

Plaintiffs’ allegations suggest only that ISIS approved of the

shooting after learning it had occurred, not that it authorized

the attack beforehand. The allegations in the operative

complaint indicate some connection between the shooters and

ISIS is possible, but more is needed in order to plausibly

allege a cognizable claim for aiding-and-abetting liability.

Twombly, 550 U.S. at 555 (“Factual allegations must be

enough to raise a right to relief above the speculative level . . .

on the assumption that all of the complaint’s allegations are

true . . . .” (internal citation omitted)).

The Sixth Circuit decision in Crosby aligns with our

conclusion. In Crosby, plaintiffs filed claims against Google,

Twitter, and Facebook under the ATA following the mass

shooting at the Pulse Night Club in Orlando, Florida.

621 F.3d at 619. The plaintiffs alleged “ISIS ‘virtually

recruited’ people through online content, [the shooter] saw

this content at some point before the shooting, and [the

shooter] injured Plaintiffs.” Id. at 626. The Crosby plaintiffs

also alleged that ISIS took responsibility for the attack after

the fact. Id. at 619. Even taking the allegations as true, the

76 GONZALEZ V. GOOGLE

Sixth Circuit concluded the complaint alleged the shooter was

“self-radicalized” and never had any contact with ISIS, and

failed to allege that ISIS gave permission for the attack. Id.

Thus, the Sixth Circuit held “there [were] insufficient facts to

allege that ISIS ‘committed, planned, or authorized’ the Pulse

Night Club shooting.” Id. at 626.

The dissent would hold that the Clayborn Plaintiffs

adequately stated a claim for aiding and abetting liability.

Specifically, the dissent relies on the Clayborn Plaintiffs’

allegation that Farook and Malik used a tactic a Department

of Justice report described as “a frequent, well documented

practice in international terrorism incidents” that had been

outlined in Al Qaeda and ISIS magazines disseminated on

defendants’ platforms. We disagree. Farook and Malik’s use

of well-known terrorist tactics do not give rise to an inference

that their attack was “implicitly authorized” by ISIS.

The dissent urges us to apply common law principles of

agency to conclude that ISIS authorized the San Bernardino

Attack by ratifying it after the fact. We cannot agree this

element is adequately alleged. Section 2333(d)(2) requires

plaintiffs to demonstrate the act of international terrorism was

“committed, planned, or authorized” by a foreign terrorist

organization. The language Congress adopted gives no

indication that the “committed, planned, or authorized”

element is satisfied merely because a foreign terrorist

organization praises an act of terrorism.

Even if Congress intended “authorized” to include acts

ratified by terrorist organizations after the fact, ISIS’s

statement after the San Bernardino Attack fell short of

ratification. The complaint alleges that ISIS stated, “Two

followers of Islamic State attacked several days ago a center

GONZALEZ V. GOOGLE 77

in San Bernardino in California, we pray to God to accept

them as Martyrs.” This clearly alleges that ISIS found the

San Bernardino Attack praiseworthy, but not that ISIS

adopted Farook’s and Malik’s actions as its own. See

Restatement (Third) of Agency, § 4.01 cmt. b, (1933) (“The

act of ratification consists of an externally observable

manifestation of assent to be bound by the prior act of another

person.”).

Because the Clayborn Plaintiffs’ allegations do not

plausibly allege that ISIS “committed, planned, or

authorized” the San Bernardino Attack, the Clayborn

Plaintiffs did not adequately state a claim for aiding and

abetting an act of international terrorism under § 2333(d)(2).

See Crosby, 921 F.3d at 626.22

VIII

The plaintiffs in these three cases suffered devastating

losses from acts of extreme and senseless brutality, and their

claims highlight an area where technology has dramatically

outpaced congressional oversight. There is no indication the

drafters of § 230 imagined the level of sophistication

algorithms have achieved. Nor did they foresee the

22

The district court did not reach whether the San Bernardino Attack

was an “act of international terrorism.” (emphasis added). This question

appears to be much closer in Clayborn than either of the other appeals

before us. See 18 U.S.C. § 2331(1)(C). In Clayborn, the attack was

planned and executed in the United States by a U.S. citizen and his wife.

Although the San Bernardino Attack was undoubtably an act of terror, it

is less clear whether the complaint alleged sufficient international activity

to qualify the San Bernardino Attack as an instance of “international

terrorism.” Having held the Clayborn Plaintiffs failed to state a claim for

secondary liability on other grounds, we do not decide that question.

78 GONZALEZ V. GOOGLE

circumstance we now face, in which the use of powerful

algorithms by social media websites can encourage, support,

and expand terrorist networks. At the time § 230 was

enacted, it was widely considered “impossible for service

providers to screen each of their millions of postings for

possible problems.” Carafano, 339 F.3d at 1124 (emphasis

added) (quoting Zeran, 129 F.3d at 330–31). But it is

increasingly apparent that advances in machine-learning

warrant revisiting that assumption. Indeed, social media

companies are reportedly making laudable strides to develop

tools to identify, flag, and remove inherently illegal content

such as child pornography.23 Section 230’s sweeping

immunity is likely premised on an antiquated understanding

of the extent to which it is possible to screen content posted

by third parties.

There is no question § 230(c)(1) shelters more activity

than Congress envisioned it would. Whether social media

companies should continue to enjoy immunity for the third-

party content they publish, and whether their use of

algorithms ought to be regulated, are pressing questions that

Congress should address.

IX

With respect to Gonzalez, we affirm the district court’s

ruling that § 230 immunity bars the plaintiffs’ non-revenue

sharing claims. Separately, we conclude the TAC’s direct

liability revenue-sharing claims did not plausibly allege that

Google’s actions qualified as acts of international terrorism

within the meaning of § 2331(1), and that the secondary

liability revenue-sharing claims failed to plausibly allege

23

Supra note 11.

GONZALEZ V. GOOGLE 79

either conspiracy or aiding-and-abetting liability under the

ATA.

With respect to Taamneh, we reverse the district court’s

judgment that the FAC failed to adequately state a claim for

secondary liability under the ATA.

With respect to Clayborn, we affirm the judgment of the

district court that Clayborn Plaintiffs failed to state a claim

for secondary liability under the ATA.24

The judgment in No. 18-16700 is AFFIRMED.

The judgment in No. 18-17192 is REVERSED AND

REMANDED.

The judgment in No. 19-15043 is AFFIRMED.

24

Amicus Electronic Frontier Foundation (EFF) moves to file an

amicus brief in this appeal. We grant the motion, and grant the Gonzalez

Plaintiffs’ motion to file an oversized reply brief in order to respond to

EFF. In its amicus brief, EFF raises several arguments concerning the

First Amendment. We often “decline to consider” amicus briefs that seek

“to raise issues not raised or briefed by the parties.” Am. Trucking Ass’ns,

Inc. v. City of Los Angeles, 559 F.3d 1046, 1053 n.11 (9th Cir. 2009)

(citing Day v. Apoliona, 496 F.3d 1027, 1035 n.11 (9th Cir. 2007)). Here,

because the parties did not raise the First Amendment, the panel declines

to consider EFF’s arguments on this issue.

80 GONZALEZ V. GOOGLE

BERZON, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately

to explain that, although we are bound by Ninth Circuit

precedent compelling the outcome in this case, I join the

growing chorus of voices calling for a more limited reading

of the scope of section 230 immunity. For the reasons

compellingly given by Judge Katzmann in his partial dissent

in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), cert.

denied, 140 S. Ct. 2761 (2020), if not bound by Circuit

precedent I would hold that the term “publisher” under

section 230 reaches only traditional activities of publication

and distribution—such as deciding whether to publish,

withdraw, or alter content—and does not include activities

that promote or recommend content or connect content users

to each other. I urge this Court to reconsider our precedent en

banc to the extent that it holds that section 230 extends to the

use of machine-learning algorithms to recommend content

and connections to users.

47 U.S.C. § 230(c)(1) provides: “No provider or user of

an interactive computer service shall be treated as the

publisher or speaker of any information provided by another

information content provider.” “This grant of immunity

applies only if the interactive computer service provider is not

also an ‘information content provider,’ which is defined as

someone who is ‘responsible, in whole or in part, for the

creation or development of’ the offending content.” Fair

Hous. Council of San Fernando Valley v. Roommates.Com,

LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (quoting

47 U.S.C. § 230(f)(3)). Although the statute was enacted in

response to the risk of liability for defamation, the language

of the statute applies to any cause of action based on the

publication or speaking of information content. See Barnes

GONZALEZ V. GOOGLE 81

v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009). This

Court has held that immunity under section 230 extends to

“(1) a provider or user of an interactive computer service

(2) whom a plaintiff seeks to treat, under a state law cause of

action, as a publisher or speaker (3) of information provided

by another information content provider.” Dyroff v. Ultimate

Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019),

cert. denied, 140 S. Ct. 2761 (2020) (quoting Barnes,

570 F.3d at 1100–01).

The key issue as to the non-revenue-sharing claims in

Gonzalez v. Google is whether Google, through YouTube, is

being treated “as a publisher” of videos posted by ISIS for

purposes of these claims. We have previously held that

“publication involves reviewing, editing, and deciding

whether to publish or to withdraw from publication third-

party content.” Barnes, 570 F.3d at 1102. A website’s

decisions to moderate content, restrict users, or allow third

parties full freedom to post content and interact with each

other all therefore fall squarely within the actions of a

publisher shielded from liability under section 230.

But the conduct of the website operators here—like the

conduct of most social media website operators today—goes

very much further. The platforms’ algorithms suggest new

connections between people and groups and recommend long

lists of content, targeted at specific users. As Judge Gould’s

dissent cogently explains, the complaint alleges that the

algorithms used by YouTube do not merely publish user

content. Instead, they amplify and direct such content,

including violent ISIS propaganda, to people the algorithm

determines to be interested in or susceptible to those

messages and thus willing to stay on the platform to watch

more. Dissent at 96–97. Similarly, “Facebook uses the

82 GONZALEZ V. GOOGLE

algorithms to create and communicate its own message: that

it thinks you, the reader—you, specifically—will like this

content. And . . . Facebook’s suggestions contribute to the

creation of real-world social networks.” Force, 934 F.3d

at 82 (Katzmann, C.J., concurring in part and dissenting in

part).

In my view, these types of targeted recommendations and

affirmative promotion of connections and interactions among

otherwise independent users are well outside the scope of

traditional publication. Some sites use their algorithms to

connect users to specific content and highlight it as

recommended, rather than simply distributing the content to

anyone who chooses to engage with it. Others suggest that

users communicate with designated other users previously

unknown to the recipient of the suggestion. See Dyroff,

934 F.3d at 1095. Traditional publication has never included

selecting the news, opinion pieces, or classified ads to send to

each individual reader based on guesses as to their

preferences and interests, or suggesting that one reader might

like to exchange messages with other readers. The actions of

the social network algorithms—assessing a user’s prior posts,

friends, or viewing habits to recommend new content and

connections—are more analogous to the actions of a direct

marketer, matchmaker, or recruiter than to those of a

publisher. Reading the statute without regard to our post-

Barnes case law, I would hold that a plaintiff asserting a

claim based on the way that website algorithms recommend

content or connections to users is not seeking to treat the

interactive computer service as a “publisher” within any usual

meaning of that term. Instead, the website is engaging in its

own communications with users, composing and sending

messages to users concerning what they might like to view or

who they might like to interact with.

GONZALEZ V. GOOGLE 83

Nothing in the history of section 230 supports a reading

of the statute so expansive as to reach these website-

generated messages and functions. Section 230 “provide[d]

internet companies with immunity from certain claims ‘to

promote the continued development of the Internet and other

interactive computer services.’” HomeAway.com, Inc. v. City

of Santa Monica, 918 F.3d 676, 681 (9th Cir. 2019) (quoting

47 U.S.C. § 230(b)(1)). But as Judge Katzmann thoroughly

explained in his dissent in Force, the aim of section 230 was

to avoid government regulation of internet content while

“empower[ing] interactive computer service providers to self-

regulate, and . . . provid[ing] tools for parents to regulate,

children’s access to inappropriate material.” Force, 934 F.3d

at 79 (Katzmann, C.J., concurring in part and dissenting in

part). A New York state court had just held that an Internet

provider that hosted online bulletin boards could be held

liable for defamation as a publisher because it actively

monitored and removed offensive content. See Batzel v.

Smith, 333 F.3d 1018, 1029 (9th Cir. 2003) (citing Stratton

Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *4

(N.Y. Sup. Ct. May 24, 1995) (unpublished)). So section

230, responding to Stratton Oakmont, prevented providers

from being treated as the publisher of third-party content,

47 U.S.C. § 230(c)(1), and eliminated liability for actions

taken to restrict access to objectionable material, id.

§ 230(c)(2). Although “Congress grabbed a bazooka to swat

the Stratton-Oakmont fly,” Force, 934 F.3d at 80 (Katzmann,

C.J., concurring in part and dissenting in part), still, neither

the text nor the history of section 230 supports a reading of

“publisher” that extends so far as to reach targeted,

affirmative recommendations of content or of contacts by

social media algorithms.

84 GONZALEZ V. GOOGLE

BUT: As the majority opinion explains, our case law

squarely and irrefutably holds otherwise. There is just no

getting around that conclusion, as creatively as Judge Gould’s

dissent tries to do so.

Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093,

involved a social networking website that allowed users

anonymously to share their experiences on any topic and post

and answer questions. Importantly, the website, Experience

Project, also “recommended groups for users to join, based on

the content of their posts and other attributes, using machine-

learning algorithms.” Id. at 1095. One user, Wesley Greer,

posted a question about buying drugs in a heroin-related

group, and the website sent him a notification when a nearby

drug dealer posted in the same group. Id. Greer bought

heroin laced with fentanyl from the dealer and died from the

drug. Id.

Dyroff held that “[b]y recommending user groups and

sending email notifications, [the website] was acting as a

publisher of others’ content. These functions—

recommendations and notifications—are tools meant to

facilitate the communication and content of others. They are

not content in and of themselves.” Id. at 1098. To me, those

two sentences actually illustrate why the recommendation and

email notifications are not actions taken in the role of

publisher. The activities highlighted do involve

communication by the service provider, and so are activities

independent of simply providing the public with content

supplied by others.

The recommendations and notifications in Dyroff are not

meaningfully different than the recommendations and

connections provided by the social media companies in the

GONZALEZ V. GOOGLE 85

cases at issue here. Greer’s mother alleged that Experience

Project “steered users to additional groups dedicated to the

sale and use of narcotics” and “sent users alerts to posts

within groups that were dedicated to the sale and use of

narcotics,” both actions that relied on algorithms to amplify

and direct users to content. Id. at 1095. Like the

recommendations provided by YouTube, Experience

Project’s recommendations communicated to each user that

the website thought that user would be interested in certain

posts and topics. And, as here, the recommended connection

was to individuals openly engaged in illegal activity, and the

consequences were fatal. Just as the terrorist group’s deadly

activities were, according to the complaints in these cases,

facilitated by recommending their gruesome message to

potential recruits, so the drug dealers’ illegal activities in

Dyroff were directly facilitated by connecting them with

potential customers. And in both instances, the consequences

of the service provider’s recommendations were deadly.

The problem in our case law goes considerably further

back than Dyroff. Before Dyroff, Fair Housing Council of

San Fernando Valley v. Roommates.com, LLC, held that

section 230 did not immunize a website that “induced third

parties to express illegal preferences” by including

discriminatory criteria in a required form for people setting

up profiles, 521 F.3d at 1165. Roommates.com operated a

website listing rentals and people seeking rooms and required

subscribers to list information about their own and their

preferred roommates’ sex, sexuality, and family status.

Roommates held that although the information itself was

provided by third parties, the mandatory nature of the

information and the “limited set of pre-populated answers”

made Roommates.com into “much more than a passive

transmitter of information provided by others; it becomes the

86 GONZALEZ V. GOOGLE

developer, at least in part, of that information.” Id. at 1166.

Roommates distinguished between “providing neutral tools

[for users] to carry out what may be unlawful or illicit

searches” or “allow[ing] users to specify whether they will or

will not receive emails by means of user-defined criteria” and

operating “in a manner that contributes to the alleged

illegality.” Id. at 1169.

As the majority discusses, Maj. Op. at 38, Roommates

relied on our prior decision in Carafano v. Metrosplash.com,

Inc., 339 F.3d 1119 (9th Cir. 2003), which held that a dating

website was not liable for an unauthorized and libelous

profile created by a third party, see id. at 1122, 1125. The

dating website “provided neutral tools specifically designed

to match romantic partners depending on their voluntary

inputs.” Roommates, 521 F.3d at 1172. Carafano determined

that the website was being treated as a publisher and that the

“additional features, such as ‘matching’ profiles with similar

characteristics” were not sufficient to make the website into

the “creator” or “developer” of the content in user profiles

under 47 U.S.C. § 230(f)(3). 339 F.3d at 1125; see id.

at 1124–25. Instead, the Court determined that such features

were more akin to editing or selection. Id. at 1124. A tool

matching two people who choose to share similar information

about themselves is nearly identical to Facebook’s algorithm

suggesting possible connections and is similar to algorithms

recommending new videos based on past user viewing habits,

and to the recommendation and notification functions of the

Experience Project at issue in Dyroff. Dyroff concluded that

“[t]he [Experience Project’s] recommendation and

GONZALEZ V. GOOGLE 87

notification functions,” like the tools in Carafano, could not

give rise to liability, because they “helped facilitate . . . user-

to-user communication, but . . . did not materially contribute

. . . to the alleged unlawfulness of the content,” 934 F.3d

at 1099.

The partial dissent considers the Gonzalez Plaintiffs’

allegations “more akin to those in Roommates.com than

Dyroff because of the unique threat posed by terrorism

compounded by social media.” Dissent at 99. But the subject

matter of the third-party content does not dictate whether an

interactive computer service is being treated as a publisher of

that content. Nor does the test proposed in the partial dissent,

which focuses on “message[s] designed to recruit individuals

for a criminal purpose” and material contribution “to a

centralized cause giving rise to a probability of grave harm,”

id. at 100, meaningfully distinguish our case law, particularly

Dyroff. The sale of heroin is a criminal purpose, and many

drug dealers operate as part of criminal networks. Although

the harm caused by a terrorist attack is immense, the harm

caused by the sale of fentanyl-laced heroin is certainly

“grave”—it led to Greer’s death in Dyroff. The allegation

that the recommendation to users of illegal terrorist messages

establishes the illegality of Google’s actions under the Anti-

Terrorism Act (ATA), 18 U.S.C. § 2333, exactly parallels the

allegation in Dyroff that the dissemination of messages

connecting drug dealers to buyers contributed to the harms

Congress intended to combat by prohibiting drug trafficking.

I therefore concur in full in the majority opinion, as we

are bound by this Court’s precedent in Dyroff extending

immunity under section 230 to targeted recommendations of

content and connections. But I agree with the dissent and

Judge Katzmann that recommendation and social connectivity

88 GONZALEZ V. GOOGLE

algorithms—as distinct from the neutral search functions

discussed in Roommates—provide a “message” from the

social media platforms to the user about what content they

will be interested in and other people with whom they should

connect. Transmitting these messages goes beyond the

publishers’ role insulated from liability by section 230.

I urge the Court to take this case en banc to reconsider our

case law and hold that websites’ use of machine-generated

algorithms to recommend content and contacts are not within

the publishing role immunized under section 230. These

cases demonstrate the dangers posed by extending section

230 immunity to such algorithmic recommendations, an

extension, in my view, compelled by neither the text nor

history of the statute. As Judge Gould and Judge Katzmann

both emphasize, algorithms on social media sites do not offer

just one or two suggestions; they operate cumulatively and

dominate the user experience. “The cumulative effect of

recommend[ations] . . . envelops the user, immersing her in

an entire universe filled with people, ideas, and events she

may never have discovered on her own.” Force, 934 F.3d

at 83 (Katzmann, C.J., concurring in part and dissenting in

part). If viewers start down a path of watching videos that the

algorithms link to interest in terrorist content, their immersive

universe can easily become one filled with ISIS propaganda

and recruitment. Even if the algorithm is based on content-

neutral factors, such as recommending videos most likely to

keep the targeted viewers watching longer, the platform’s

recommendations of what to watch send a message to the

user. And that message—“you may be interested in watching

these videos or connecting to these people”—can radicalize

users into extremist behavior and contribute to deadly

terrorist attacks like these.

GONZALEZ V. GOOGLE 89

I concur—but, for the reasons stated, reluctantly—in the

majority opinion.

GOULD, Circuit Judge, concurring in part and dissenting in

part:

I

I concur in part in the majority opinion in its Parts I and

II, Part III.A through III.D, Part III.F, and Part VI, but

respectfully dissent in part as to Part III.E, and Parts IV, V,

and VII. These cases involve several shooting or bombing

incidents involving ISIS terrorists at far-flung worldwide

locations of Paris, France; Istanbul, Turkey; and San

Bernardino, California, in the United States. They also

involve claims that Internet or social media companies such

as Google, YouTube, Facebook, and Twitter contributed to

acts of terrorism because of the operation of their procedures

and platforms. I concur insofar as the majority would reverse

in part the dismissal of revenue-sharing claims in Gonzalez v.

Google, and insofar as it would reverse the district court’s

judgment in Taamneh v. Twitter that the complaint failed to

adequately state a claim for secondary liability under the

Anti-Terrorism Act (“ATA”). However, I respectfully

dissent as to the majority’s dismissal of the Gonzalez claims

on grounds of Section 230 immunity, and of failure to state a

claim for direct or secondary liability under the ATA, because

of the majority’s mistaken conclusion that there was no act of

international terrorism, and I also would hold that the

complaint adequately alleged that there was proximate cause

supporting damages on those claims.

90 GONZALEZ V. GOOGLE

I further note that the majority here makes its dismissive

rulings solely on the pleadings and with no discovery to

illuminate Plaintiffs’ well-plead factual contentions. Federal

Rule of Civil Procedure 12(b)(6) permits dismissal of claims

without pondering evidence in cases where a complaint fails

to state a claim. FRCP 12(b)(6) has an important role to play

in efficiently clearing the courts of suits that lack plausible

allegations or where a legal barrier like preemption exists.

Yet in a case that does not warrant such a prompt dismissal,1

we do the legal system a disservice by dismissing a case

before considering the evidence that can arise in a properly

monitored discovery period. A defendant that actually has

immunity is a good candidate for 12(b)(6) dismissal, but if

the district court’s conception of the scope of immunity is

incorrect, as I believe it was here, then its dismissal under that

rule will be untenable.

I would hold that Section 230 of the Communications

Decency Act (“CDA”) does not bar the Gonzalez Plaintiffs’

claims for direct and secondary liability under the ATA, and

I would allow those claims to proceed to the district court for

a reasonable period for discovery. I agree that claims can

proceed in the Taamneh case, and accordingly agree with

reversing and remanding in that case. And on the Clayborn

1

Doubtless the Defendant social media companies would benefit

from 12(b)(6) dismissal at the outset—in a case where they are actually

immune—to avoid expensive and time-consuming discovery procedures.

However, while that relief would be “swift,” it would not necessarily be

just. I am reminded of the often-quoted obs

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