Yet Another Lawsuit Hopes A Court Will Hold Twitter Responsible For Terrorists' Actions
from the law-firms-basically-setting-up-franchises dept
So, this is how we’re handling the War on Terror here on the homefront: lawsuit after lawsuit after lawsuit against social media platforms because terrorists also like to tweet and post stuff on Facebook.
The same law firm (New York’s Berkman Law Office) that brought us last July’s lawsuit against Facebook (because terrorist organization Hamas also uses Facebook) is now bringing one against Twitter because ISIS uses Twitter. (h/t Lawfare’s Ben Wittes)
Behind the law firm are more families of victims of terrorist attacks — this time those in Brussels and Paris. Once again, any criticism of this lawsuit (and others of its type) is not an attack on those who have lost loved ones to horrific acts of violence perpetrated by terrorist organizations.
The criticisms here are the same as they have been in any previous case: the lawsuits are useless and potentially dangerous. They attempt to hold social media platforms accountable for the actions of terrorists. At the heart of every sued company’s defense is Section 230 of the CDA, which immunizes them against civil lawsuits predicated on the actions and words of the platform’s users.
The lawsuits should be doomed to fail, but there’s always a chance a judge will construe the plaintiffs’ arguments in a way that either circumvents this built-in protection or, worse, issues a precedential ruling carving a hole in these protections.
The arguments here are identical to the other lawsuits: Twitter allegedly hasn’t done enough to prevent terrorists from using its platform. Therefore, Twitter (somehow) provides material support to terrorists by not shutting down (one of) their means of communication (fast enough).
The filing [PDF] is long, containing a rather detailed history of the rise of the Islamic State, a full rundown of the attacks in Brussels and Paris, and numerous examples of social media posts by terrorists. It’s rather light on legal arguments, but then it has to be, because the lawsuit works better when it tugs at the heartstrings, rather than addressing the legal issues head on.
The lawsuit even takes time to portray Twitter’s shutdown of Dataminr’s feed to US government surveillance agencies — as well as its policy of notifying users of government/law enforcement demands for personal information — as evidence of its negligence, if not outright support, of terrorist groups.
The problem with these lawsuits — even without the Section 230 hurdle — is that the only way for Twitter, Facebook, etc. to avoid being accused of “material support” for terrorism is to somehow predetermine what is or isn’t terrorist-related before it’s posted… or even before accounts are created. To do otherwise is to fail. Any content posted can immediately be reposted by supporters and detractors alike.
And that’s another issue that isn’t easily sorted out by platforms with hundreds of millions of users. Posts and tweets are just as often passed on by people who don’t agree with content, but arguments made in these lawsuits expect social media platforms to determine what intent is… and take action almost immediately. Any post or account that stays “live” for too long becomes a liability, should courts find in favor of these plaintiffs. It’s an impossible standard to meet.
These lawsuits ask courts to shoot the medium, rather than the messenger. They make about as much sense as suing cell phone manufacturers because they’re not doing enough to prevent terrorists from buying their phones and using them to communicate.