Should social media sites be held liable for the posts of extremists?

Islamic State and other terror organisations have been using Twitter as a communications tool for many years. Alison Frankel looks at a US case which may have repercussions for social media
Should social media sites be held liable for the posts of extremists?

If the widow of a US government contractor killed in a 2015 Islamic State shooting in Amman, Jordan, wins her newly filed US Anti-Terrorism Act (ATA) suit against Twitter, there could be enormous consequences for social media sites.

Extremist groups are well known to use the internet to recruit members and plan attacks. Liability to victims of these attacks — and the treble damages available under the ATA — could mean significant exposure and reputational harm for sites frequented by extremists.

But first, plaintiff Tamara Fields will have to win judicial support for her theory that Twitter provided material support to Islamic State (IS) by letting the group use the site to encourage small-scale attacks, like the one that killed her husband, Lloyd ‘Carl’ Fields.

Carl Fields, a contractor for DynCorp International, went to Jordan last autumn to help train security officers from Jordan, Iraq, and the Palestinian territories.

He was one of several people shot by a trainee on November 9 in an attack for which IS took credit, according to the complaint.

Though US terrorism victims have managed in recent years to establish ATA liability for financial institutions and purported charities, this suit appears to be the first to attempt to extend blame to a social media site for providing support to a terror group under the ATA, according Fields counsel, Joshua Arisohn of Bursor & Fisher.

Holding Twitter liable will be “a real challenge”, according to Notre Dame law professor Jimmy Gurule, a former US Treasury and Justice Department official who specialises in terror finance law.

“The case raises a number of open and unsettled issues,” said Prof Gurule in an interview.

Fields will have to show that Twitter knew IS was misusing the site and didn’t do enough to stop the group’s activity, according to Prof Gurule and, even if she can meet that burden, she will have to show her husband’s death occurred “by reason of” Twitter’s conduct.

Exactly what that causation standard requires is a matter of considerable ambiguity, as I’ve reported in connection with victims’ successful ATA case against Arab Bank. (After about 500 victims of Hamas’ attacks won a jury verdict of liability against the bank in 2014, the case settled in August for an undisclosed amount.)

Must ATA plaintiffs show attacks would not have occurred if it hadn’t been for the defendant’s material support? Or that the defendant’s conduct led directly to an extremist attack? Or neither?

In a comprehensive post-trial opinion in the Arab Bank case, US District Judge Brian Cogan analysed precedent on the ATA causation standard from the US Supreme Court and several federal circuits.

He concluded the causation standard isn’t as high as Arab Bank argued it was.

According to Judge Cogan, a defendant can be liable under the ATA if it acted with the knowledge that its conduct could lead to death or injury that would not otherwise occur.

Judge Cogan’s analysis isn’t binding, especially in federal court in San Francisco, where the Twitter case was filed.

But plaintiffs’ lawyer Gary Osen, widely regarded as the pioneer of ATA litigation against financial institutions and a lead lawyer in the Arab Bank case, called Judge Cogan’s decision “arguably the most definitive decision ever written on the ATA.”

(For what it’s worth, Mr Osen told me that he believes the Twitter case has a shot. “Obviously, each case will hinge on specific facts, but I think it’s well pled,” he said.)

Fields’ lawyer, Joshua Arisohn, actually worked on Arab Bank’s ATA defence team for many years before joining Bursor & Fisher and said he put to use in the Twitter complaint what he learned from working on the other side.

He said the causation standard won’t be hard to meet against Twitter.

“A claim under the ATA requires only proximate causation: a showing that the defendant’s acts were a substantial factor in the sequence of events responsible for causing plaintiffs’ injuries and that plaintiffs’ injuries were reasonably foreseeable or anticipated as a natural consequence of such acts,” Mr Arisohn said in an email.

“Plaintiffs are not required to prove that defendant’s alleged unlawful acts were the sole cause of their injuries; nor do plaintiffs need to eliminate all other possible causes of injury.”

The complaint contends that Twitter has been on notice since 2011 that Islamic State and other groups were using the service to spread propaganda, yet has refused aggressively to monitor tweets and accounts.

The White House last week announced high-level talks to push the biggest Internet services, including Twitter, to do more to counteract extremist messages on their sites.

Twitter says that it is not an enabler for terrorist groups such as IS. In a response to a Reuters’ query about the new suit, a Twitter representative said the claims are “without merit”, though it expressed sympathy for the Fields family.

“Violent threats and the promotion of terrorism deserve no place on Twitter and, like other social networks, our rules make that clear,” the statement said.

“We have teams around the world actively investigating reports of rule violations, identifying violating conduct, partnering with organisations countering extremist content online and working with law enforcement entities when appropriate.”

A Brookings Institution’ paper last March, ‘The Isis Twitter Census’, said that Twitter has suspended thousands of accounts tied to IS.

In addition to arguing that it did not turn a blind eye to Islamic State’s use of the service and did not cause Carl Fields’ death, Twitter may cite the US Communications Decency Act (CDA) as a defense in the ATA case. A provision in that law protects online intermediaries that host or republish speech by other people.

Mr Arisohn said the US Congress intended that statute to shield internet companies from liability when users publish libelous comments — not “to give companies like Twitter a get out of jail free card when they knowngly hand over powerful communications tools to designated terrorist organisations”.

The intersection of the CDA and the ATA is one of the issues that other social media companies ought to watch closely as this case is litigated.

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