Terrorist Social Media Cases Test Scope of CDA § 230

Three recent cases against involving Twitter, Facebook and Google seek to hold social media platforms liable to the families of terrorist attacks by ISIS and/or Hamas since they provided material support to their cause.

While this would appear to be barred under Section 230 of the Communications Decency Act which immunizes such sites from liability for third party content, the Lawfare blog has argued that Section 230 cannot be reasonably read to bar a civil suit for material support for terrorism against a social media company that allows itself to be exploited by a terrorist group. This is because liability under “material support” laws,

does not depend on offending content—by the provider, by a third party, or by anyone. Consider 18 U.S.C. § 2339B, which holds that “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.” There are many reasons to believe that Twitter has not violated this law by providing service to ISIS users (we spell out some of Twitter’s defenses in our post last week), but note that if it has violated the law, that offense was completed the moment Twitter knowingly provided service to ISIS. The offense does not depend in any way on what ISIS may have tweeted, or even if ISIS used the service in question. If ISIS operatives tweeted cat videos or they tweeted nothing at all, Twitter still would have violated the statute (assuming it did) the moment it knowingly provided “any property, tangible or intangible, or service, including . . . communications equipment” to operatives of a designated foreign terrorist organization.

Of course, proving causation may be the greater challenge for these plaintiffs.

The three cases are as follows:

Fields v. Twitter (N.D. Cal. Case No. 4:16-cv-00213)

Filed: 1/16/16
DISMISSED: 11/18/16

For years, Twitter has knowingly permitted the terrorist group ISIS to use its social network as a tool for spreading extremist propaganda, raising funds and attracting new recruits. This material support has been instrumental to the rise of ISIS and has enabled it to carry out numerous terrorist attacks, including the November 9, 2015 shooting attack in Amman, Jordan in which Lloyd “Carl” Fields, Jr. was killed.

Status: Court indicated it will grant motion to dismiss under Section 230 with leave to amend.

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Gonzalez v. Twitter Inc., (N.D. Cal. No. 4:16-cv-03282)

Filed: 6/14/2016

Identical opening paragraph but also alleges:

Plaintiffs’ claims are based not upon the content of ISIS’ social media postings, but upon Defendants provision of the infrastructure which provides material support to ISIS. Furthermore, Defendants profit from ISIS by placing ads on ISIS’ postings. For at least one of the Defendants, Google, revenue earned from advertising is shared with ISIS.

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Force v Facebook (S.D.N.Y. 1:16-cv-05490)

Filed: 7/10/16

HAMAS has used Facebook to openly incite and encourage these attacks, and to praise the terrorists who have carried them out. This wave of violence has been variously labeled as a new “Al Aqsa Intifada,” as the “Knife Intifada,” and as the “Facebook Intifada.”

From the beginning of October 2015 through March 14, 2016, Palestinian andA rab terrorists, including many HAMAS operatives, murdered more than 30 Israelis, and injured more than 400 Israelis. These attacks have been part of a terror campaign driven by HAMAS’s use of Facebook to incite, enlist, organize, and dispatch would-be killers to “stab” and “slaughter Jews.”