Twitter Tells Supreme Court It Should Not Be Held Liable for ISIS Attack

Supreme Court Justice Elena Kagan stands during a group photograph of the justices at the Supreme Court in Washington on April 23, 2021. (Erin Schaff/Pool/AFP via Getty Images)

A lawyer for Twitter told the Supreme Court on Feb. 22 in a closely watched case that the social media company should not be liable merely because some terrorists may have used its services.

The case, Twitter v. Taamneh (court file 21-1496), goes back to the Jan. 1, 2017, terrorist attack on the Reina nightclub in Istanbul, Turkey, by Abdulkadir Masharipov, an individual affiliated with and trained by ISIS.

Masharipov carried out a massacre, firing 120 rounds into a crowd of 700 people, killing 39 and injuring 69 others. ISIS claimed responsibility for the attack, according to a brief by a victim’s relatives.

The original lawsuit was started by U.S. relatives of Nawras Alassaf, a Jordanian citizen who was killed in the assault.

Explosive Growth of ISIS

The plaintiffs sued Twitter, Facebook, and YouTube owner Google, claiming that the companies had aided and abetted ISIS and that their actions led to Alassaf’s death, and that they were liable under the federal Justice Against Sponsors of Terrorism Act (JASTA).

The statute allows lawsuits to be filed in federal courts against a foreign state for supporting international terrorism regardless of whether the state is officially designated as a state sponsor of terrorism.

Without Twitter, Facebook, and Google the “explosive growth of ISIS over the last few years into the most feared terrorist group in the world would have not been possible,” according to the brief.

The internet platforms “played an essential role in the rise of ISIS to become the most feared terrorist organization in the world.” ISIS used the platforms to carry out terrorist activities, including recruitment, radicalization, and fundraising. The companies increased the visibility and impact of ISIS videos by recommending them to users, the brief said.

The companies, on the other hand, argue they shouldn’t be held responsible for acts of international terrorism if ISIS used their platforms.

The hearing in the case came after oral arguments the day before in a related case, Gonzalez v. Google. The family of Nohemi Gonzalez, a U.S. citizen and student who was killed in a terrorist attack in Paris, is suing Google, owner of YouTube, claiming it is liable under federal law for aiding terrorist recruitment efforts by allegedly using algorithms to steer users to ISIS videos.

Big Tech and its supporters are deeply concerned that in the Google case, the court could eviscerate Section 230 of the federal Communications Decency Act of 1996, which generally prevents internet platforms and internet service providers from being held liable for what users say on them.

They say the legal provision has fostered a climate online in which free speech has flourished.

Allegation of ‘Willful Blindness’

Although social media platforms say they shouldn’t be held responsible if terrorists use their websites, critics say shielding social media platforms had led to real-world harm.

Congress has been under pressure for years to change Section 230 as conservatives have complained about social media censorship and liberals have protested against misinformation online.

Section 230 is not the focus of Twitter v. Taamneh, but Twitter, Google, and Facebook have said they should not be held liable for aiding and abetting international terrorism just because they provided services to billions of users who may have included some supporters of ISIS.

Twitter attorney Seth Waxman, a former U.S. solicitor general, told the Supreme Court during oral arguments on Feb. 22 that JASTA is an important tool in the fight against international terrorism.

The statute “permits any U.S. national injured by reason of an act of international terrorism to recover treble damages from a person who aids and abets by knowingly providing substantial assistance or who conspires with a person who committed such an act of international terrorism,” Waxman said.

But the other side concedes that Twitter did not intend to aid ISIS, he said.

To the contrary the company “maintained and regularly enforced policies prohibiting content that promotes terrorist activity,” he said.

Just because internet platforms were “generally aware that among their billions of users were ISIS adherents who violated their policies” and the victim’s family claims the companies “should have done more to enforce those policies,” does not mean that the companies aided and abetted international terrorism, he said.

Still, the fact remains, Justice Sonia Sotomayor told Waxman, that, “you knew that ISIS was using your platform.” There is “an allegation of willful blindness here” and willful blindness “is something we have said can constitute knowledge.”

‘Recruiting and Fundraising’

Justice Brett Kavanaugh said Twitter’s position was that “when there’s a legitimate business that provides services on a widely available basis in an arm’s-length manner, it’s not going to be liable under this statute even if it knows bad people use its services for bad things.”

Waxman replied, “correct unless it knows of specific … accounts or posts, that are, in fact, being used to plan or commit a terrorist act, including an attack like the one that injured the plaintiff. That is, there has to be particular knowledge in that context. That’s our rule.”

Attorney Eric Schnapper, a University of Washington law professor representing the Gonzalez family, also acts for the Alassaf relatives.

Schnapper said Twitter played a role in terrorist “recruiting and fundraising.”

“Of the overall cost of running a terrorist organization, the cost of a particular attack is a very small part,” the lawyer said.

“Running terrorist organizations is very expensive. It involves fund-raising. There are lots of salaries. There’s travel. There’s bribery. There’s forging documents.”

This is “why it’s so important that the court holds that the entire enterprise being aided matters. If you limit the aid that matters to the tip of the spear, you’ve written out of the statute almost all the assistance that matters.”

U.S. Department of Justice lawyer Edwin Kneedler said although the United States “condemns in the strongest terms the terrorist attack” that led to this lawsuit, the “allegations in this complaint do not state a claim that the defendants aided and abetted, that is, that they assumed a culpable role in the commission of that murder.”

High Standard of Proof

JASTA sets a high standard of proof, he said.

The statute “requires more than allegations that a terrorist organization availed itself of interactive computer services that were remote from the act of terrorism, were widely and routinely available to hundreds of millions, if not billions, of persons through the automatic features of those services, and did not single out ISIS for favorable treatment,” Kneedler said.

Justice Elena Kagan wondered how the situation of internet companies differs from banks.

“They provide a hundred other clients who are not terrorists with the same banking services, but they provide this known terrorist with these banking services that are very important to its terrorist activities,” she said. “Can you go after that person under this statute?”

Kneedler said it was possible to do so provided that “somebody who is a leader or somebody who you know has committed or is about to commit a terrorist act.”

Kagan suggested there are similarities between social media and financial service providers.

“We’re used to thinking about banks as providing very important services to terrorists,” the justice said.

“Maybe we’re not so used to [it], but it seems to be true that various kinds of social media platforms also provide very important services to terrorists.”

The Supreme Court is not expected to rule on the case, or on the related Gonzalez case, for several months.