Platforms: 9th Circuit Ruling on Social Media Liability for Terrorism Untenable
The 9th U.S. Circuit Court of Appeals' broad interpretation of laws against abetting terrorism would mean any provider of goods or services -- from banks to airlines -- could be held liable for treble damages if a terrorist patronized their businesses, said Twitter, Google and Facebook in briefs filed Tuesday in docket 21-1496 in their U.S. Supreme Court appeal of the ruling, Twitter v. Taamneh. “The Ninth Circuit embraced an atextual and boundless conception of ‘knowingly providing substantial assistance,’” said Google and Facebook in a joint filing. “That is not a tenable scope of liability,” said Twitter in a separate filing.
Twitter v. Taamneh concerns a 2017 ISIS terrorist attack on Reina nightclub in Istanbul. The family of Nawras Alassaf, a victim of the attack, sued Facebook, Google and Twitter, arguing the social media platforms aided and abetted the attack because ISIS members generally use the platforms to communicate and recruit. The district court dismissed that argument, but the 9th Circuit reversed the decision.
A related case also before SCOTUS -- Gonzalez v. Google (docket 21-1333) -- makes similar arguments about a victim of the 2015 Paris attacks, and was ruled on by the 9th Circuit at the same time as Twitter v. Taamneh. Though the 9th Circuit ruling in Twitter v. Taamneh never reached the question of whether the terrorism claims against the platforms are barred by Section 230 of the Communications Act, Gonzalez does involve that question. “The parties in Taamneh have stipulated that the Ninth Circuit’s holding in Gonzalez, if affirmed, would foreclose Plaintiffs’ claims in Taamneh,” said Facebook and Google. The petitioner’s brief in Gonzalez was due Wednesday.
The 9th Circuit ruling is incorrect because the plaintiffs didn’t show or argue that ISIS used any of the platforms to plan or carry out the Reina nightclub attack, the platforms said. “At best, the complaint alleges only that other ISIS members and supporters exploited Facebook and YouTube services to further ISIS’s general cause,” said the joint filing. That's not enough to satisfy the requirements of the Antiterrorism Act, which holds those who aid or abet terrorists liable for their crimes, the platforms said. The law requires knowing and “substantial assistance” with a specific act of international terrorism, said Facebook and Google.
The 9th Circuit’s interpretation also broadens the concept of knowingly providing substantial assistance, the platforms said. The social media platforms actively removed and blocked Isis accounts, they argued. “Where Defendants worked to rid their platforms of ISIS’s usage but allegedly fell short, Defendants did not knowingly provide substantial assistance just because they were aware of third-party reports that ISIS adherents were still misusing their widely available, ordinary services,” Twitter said. “Mere awareness that terrorists seek to exploit one’s generic services and that one’s efforts to prevent such exploitation are not foolproof is not remotely the kind of knowledge” required to claim they knowingly abetted terrorism, Facebook and Google said. The 9th Circuit “effectively transformed the statute’s knowledge requirement into something akin to recklessness or negligence.”
“The Ninth Circuit’s errors would have disastrous consequences if left uncorrected,” said Twitter. Businesses, medical aid organizations, and foreign governments could all be held liable “despite having no connection to any terrorist attack” based on allegations they were aware members of terrorist groups could be among their users, Twitter said.
The 9th Circuit decision “makes it virtually impossible in such circumstances to prevail on a motion to dismiss and avoid burdensome discovery,” which could lead entities to settle meritless cases, Twitter said. “Even if a defendant were to settle, it may still be branded a supporter of terrorism and complicit in murders.” If the scope of liability “is truly as broad as the Ninth Circuit believes, the potential for friction with friendly nations and reciprocal abrogation of our own sovereign immunity in foreign courts is nearly limitless,” said Facebook and Google.