“At a certain point, it becomes too attenuated to support aiding and abetting,” Justice Samuel Alito said.
The case argued Wednesday — Twitter v. Taamneh — involved the death of a Jordanian man in an ISIS terrorist attack, and asks whether Twitter, Google and Facebook can be held liable under the Justice Against Sponsors of Terrorism Act for allegedly aiding and abetting terrorists by sharing ISIS recruitment content on their platforms.
It followed arguments on Tuesday in a separate but related case — Gonzalez v. Google — which asked whether the use of algorithms to recommend ISIS videos on Google’s YouTube is protected under Section 230 of the Communications Decency Act, a law shielding internet companies from being liable for most third-party content they host.
Some justices seemed to be persuaded that social media has played a role in supporting terrorist groups. Justice Elena Kagan noted that prosecutors have traditionally sought to target criminal enterprises by going after bankers and accountants who support them. She suggested Twitter’s services could be even more vital to terrorist groups like ISIS.
“What’s the difference?” Kagan asked. “We’re used to thinking about banks as providing very important services to terrorists. Maybe we’re not so used to — but it seems to be true — that various kinds of social media platforms also provide very important services to terrorists and if you know that you’re providing a very important service to terrorists,” you could be liable, she added.
Several justices said companies providing widely-available services to many customers should have more insulation from lawsuits than individuals or small businesses providing face-to-face services like accounting or banking, which often have requirements on verifying customer identities.
However, the justices seemed to struggle with just how bespoke or hands-on a service has to be to make someone liable for involvement in related criminal activity, and whether the assistance needs to directly support the crime or can just be merely helpful.
Justice Brett Kavanaugh, who served as a White House attorney for former President George W. Bush at the time of the Sept. 11, 2001, terrorist attacks, seemed particularly wary about any ruling that could limit liability for a company providing valuable services to terrorist groups. He urged Edwin Kneedler not to take a stance that limits the government’s ability to go after financiers of terrorism who may not know about plans for a specific attack.
“You’ve got to maintain a hard line there,” Kavanaugh said. “And in response to some of the hypotheticals, I’m not sure you’ve maintained the hard line.”
But Kavanaugh said that charities and humanitarian groups also need a certain amount of confidence that their activities won’t lead to litigation, even if some people may criticize their work as being of some benefit to terrorists.
“Moral complicity is different from legal liability,” said Kavanaugh. “There might be moral complicity without necessarily legal liability without fair notice.”
Kneedler, arguing for the Biden administration, repeatedly warned the justices that allowing litigation against the tech companies over the efficacy of their efforts to remove terrorist-related content could degrade the social media platforms for everyone.
“It’s an important service that we all benefit from,” Kneedler said, sounding quite pro-tech for an administration often highly critical of the platforms.
Kneedler also warned that failing to require plaintiffs to show a clear linkage between the platforms and specific attacks would lead to an avalanche of lawsuits.
“That would hold these defendants culpable in every terrorist attack,” he said.
Wilmer Cutler Pickering Hale and Dorr partner Seth Waxman, representing Twitter, said the platform aggressively removes ISIS content. However, he said any foul-ups or inefficiency in that process can’t be enough to make the company legally liable for violence that may ensue.
“The failure to do more to remove content in the context of a service that is generally and widely provided to anybody who complies with the policies … does not amount to the knowing provision of substantial assistance,” said Waxman, the solicitor general during the Clinton administration.
Waxman also stressed that the company’s policy against terrorist content makes clear it is not trying to help ISIS.
“Our state of mind is the opposite. This is negative intent. We are opposed to this,” Waxman said.
