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A few months ago, we wrote a lengthy piece about the possibility that Apple could face civil liability for providing end-to-end encryption to criminals and terrorists. We got a lot of heat for this piece. But today it's looking pretty good.
The press is all abuzz today because Twitter is being sued by the widow of the victim of an ISIS terror attack. The allegation is not that Twitter provided encryption services to ISIS, but that that it knowingly provided a platform on which ISIS could organize, raise money, and reach out to potential recruits.
Other than that, however, the theory of the case is precisely the one that we hypothesized. So we have adapted our prior analysis in the post that follows to describe the new case, predict Twitter's likely defenses, and explain why Twitter is likely, but not certain, to prevail.
Bottom line: This case will be a very big deal if it survives a motion to dismiss, but that is a very big if.
For starters, here's the complaint:
It alleges, in essence, the following:
- "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 shotting attack in Amman, Jordan in which Lloyd 'Carl' Fields, Jr. was killed."
- "For years, the media has reported on the ISIS's use of Twitter and Twitter's refusal to take any meaningful action to stop it."
- "Throughout this period, both the U.S. government and the public at large have urged Twitter to stop providing its services to terrorists."
- "Despite these appeals, Twitter has refused to take meaningful action."
- "Defendant's provision of material support to ISIS was a proximate cause of the injury inflicted on Plaintiff."
The theory of liability here is a little bit complicated, and still developing. However, certain principles seem to be generally accepted. Section 2333, the statute the plaintiff has invoked, allows victims of international terrorism to sue. International terrorism is defined in 18 USC § 2331 and requires an act that violates a criminal law. That requirement, in turn, has been held by courts to be satisfied by material support crimes.
So the question here turns on whether Twitter's conduct in making its platform available to ISIS can, under any circumstances, be construed as material support, and if so, whether Twitter meets the necessary mens rea for providing that support.
Section 2333 reads, in relevant part, as follows:
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.
Section 2333 is a strange statute in that it identifies rather precisely who may file suit (a U.S. national injured in an act of international terrorism) but is silent as to who can be made to answer that suit.
Twitter seems, at least at first, an unlikely answer to that question. International terrorism is defined in § 2331 as activities that (1) involve violent acts or acts dangerous to human life that violate a criminal law, (2) appear to be intended to intimidate a civilian population or influence government policy through threats, and (3) occur primarily outside the US or otherwise “transcend national boundaries.” Given that Twitter is running a social media platform, an activity that is neither violent nor illegal, it seems as if a plaintiff would be unable to satisfy even the first prong of this definition of terrorism.
But courts have actually heard several similar cases where the defendant is involved in acts that are not in and of themselves illegal and are, in any event, non-violent. For example, a jury in New York found Arab Bank liable under § 2333 for transferring money from a charity to the family members of Hamas suicide bombers, even though none of the parties to the transactions were listed on terrorist watch-lists. And in another case, discussed more below, the 7th Circuit Court of Appeals upheld liability for charities supporting Hamas, even when the charities were only providing humanitarian assistance.
The reason is that the courts have regarded the definition of terrorism in § 2331 as reaching not just the people committing the acts of terror themselves, but also those who materially support them, and material support for terrorism is illegal under federal law. In an en banc decision from the Seventh Circuit in Boim v. Holy Land Foundation, in which the court considered a charity’s liability for providing money to Hamas, Judge Richard Posner concluded that while giving money is not a violent act, “[g]iving money to Hamas, like giving a loaded gun to a child (which also is not a violent act), is an ‘act dangerous to human life.’”
This is where Twitter could conceivably have a problem. The plaintiff in this new suit has alleged that Twitter has violated 18 U.S.C. §§ 2339A and 2339B. Section § 2339A makes it a crime to “provide material support or resources . . . knowing or intending that they are to be used in preparation for, or in carrying out” a terrorist attack (or one of the listed crimes); 18 U.S.C. § 2339B prohibits the provision of material support to foreign terrorist organizations. The term material support includes both equipment and other tangible and intangible property and services, including financial services. And plaintiff here alleges that ISIS uses Twitter to fund terrorism.
Thus, if a jury could find that providing terrorists with communications or financial services is just asking for trouble, then the plaintiff would have satisfied the first element of the definition of international terrorism in § 2331, a necessary step for making a case for liability under § 2333.
Meeting the second element of the § 2331 terrorism definition would seem to pose a challenge for the plaintiff suing Twitter, as it would appear to be difficult, if not impossible, to prove that Twitter intended to intimidate civilians or threaten governments by making its services available.
But again, courts have handled this question in ways that make it at least theoretically feasible for a plaintiff to succeed on this point against Twitter. For example, when the judge presiding over the Arab Bank case considered and denied the bank’s motion to dismiss, he shifted the analysis of intimidation and coercion (as well as the question of the violent act and the broken criminal law) from the defendant in the case to the group receiving the assistance. The question for the jury was thus whether the bank was secondarily, rather than primarily, liable for the injuries. The issue was not whether Arab Bank was trying to intimidate civilians or threaten governments. It was whether Hamas was trying to do this, and whether Arab Bank was knowingly helping Hamas.
This approach would not not be favorable to Twitter. Notably, however, both the Second Circuit in Rothstein v. UBS AG and the Seventh Circuit in Boim have rejected the idea that § 2333(a) supports secondary liability, though the Ninth Circuit (where the suit against Twitter was filed) has not yet addressed this question.
But even though the Seventh Circuit doesn't allow secondary liability claims, Judge Posner’s opinion in Boim takes a different route to the same result. Instead of requiring a demonstration of actual intent to coerce or intimidate civilians or a government, Judge Posner essentially permits the inference that when terrorist attacks are a “foreseeable consequence” of providing support, an organization or individual knowingly providing that support can be understood to have intended those consequences. Because Judge Posner concludes that Congress created an intentional tort, § 2333 in his reading requires the plaintiff to prove that the defendant knew it was supporting a terrorist or terrorist organization, or at least that it was deliberately indifferent to that fact. In other words, the terrorist attack must be a foreseeable consequence of the specific act of support, rather than just a general risk of providing a good or service.
Whichever route a court takes, the defense is essentially the same. Twitter can try to argue that it wasn’t knowingly providing services to terrorists because the company has no way of knowing it is making its services available to someone potentially dangerous. It is, rather, providing services to anyone who signs up. Its intent was certainly not to facilitate violence or coercion or intimidation, but to provide users with connectivity with their followers.
This might work. Unlike a charity donating to Hamas, Twitter in this situation has no specific intention of supporting or in any way contributing to violent activity. And the product in question has a million legitimate uses. Twitter could argue that this is not, in Posner’s words, putting a loaded gun in the hands of child. Rather, it is putting a service in the hands of anyone who wants it, with some knowledge that some small fraction of those people will misuse the product.
The trouble for Twitter is that our story does not necessarily end there. The reason is that the complaint contains any number of allegations that Twitter has been insufficiently attentive to the problem of ISIS abuse of its platform—that is, that it let ISIS organize on its site. There's presumably some level of ignoring the problem that could plausibly give rise to liability—and in fact, courts have recognized that deliberate indifference satisifies the mens rea requirement. After all, if Twitter's position were that it would never take down an account because it believed absolutely in free speech, even for terrorists, presumably one might argue that, in Posner's formulation, it was deliberately indifferent to consequences and, in the Arab Bank formulation, it was knowingly giving aid to people who intended terrible things.
So the question here becomes fact-bound: How dilligent does Twitter have to be in order to escape the ambit of the material support law? Does the fact that Twitter takes down lots of accounts get it off the hook, or is there some threshold it is not clearing such that it can be reasonably said to be knowingly providing material support?
Assuming the plaintiff clears this bar and satisfies the requirement in the international terrorism definition that Twitter knows it is providing support to a terrorist, a jury would then have to decide whether the attack was the foreseeable consequence of this particular type of support. Here Twitter's defenses are probably strong, there being no particular reason in the complaint itself to connect the specific attack with anything that happened on Twitter.
But while plaintiffs would have to establish some degree of proximate causation, here too Judge Posner has helped make this an attainable standard, as it might not be in the pure negligence world. He notes that a defendant need not establish “but for” causation of the injury—in other words, it’s okay if there were other contributing factors. Assuming Twitter's conduct can be regarded as material support, the plaintiff would only have to prove that there was a substantial probability that Twitter's provision of services was a—not the—cause of the injuries. If Twitter “helped create a danger,” that would be sufficient for liability under § 2333 under Judge Posner's standard.
By contrast, however, the Second Circuit has refused to lower the causation standard, requiring plaintiffs to establish a sufficient basis to believe the support proximately caused the attack.
In short, this case will likely hinge on two things: First, whether given Twitter's policies and past practices, it can be said to have had the requisite mens rea to meet the material support statute, and second, whether the causation was sufficiently proximate to sustain liability. Both of these seem like a stretch on the complaint alone, but remember, the allegations there must be assumed true, and if the plaintiff survives a motion to dismiss, she gets discovery that could greatly embarass the company by revealing its resistance to government anti-ISIS efforts.
So stay tuned. This one's going to be interesting.