In February of 2023, the Supreme Court will hear the case of Google v. Gonzales. Scheduled for argument, the Court will decide whether Section 230, a provision of the Communication Decency Act of 1996, immunizes interaction computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) regarding such information.
A similar case is also scheduled for argument in front of the Supreme Court the day after Gonzalez. Twitter, Inc. v. Taamneh also concerns an ISIS terrorist attack and social media, yet the case the topic via a different legal avenue.
Twitter, Inc. v. Taamneh and the Justice Against Sponsors of Terrorism Act
Taamneh arises from a terrorist attack that took place at a nightclub in Istanbul, Turkey enacted by Abdulkadir Masharipov, an individual associated with ISIS.
The attacked occurred on January 1, 2017, when, according to the Writ submitted by the Respondents, Masharipov carried out a shooting massacre, firing 120 rounds into the crowd of 700 people, killing 39 and injuring 69 others.
ISIS issued a statement claiming responsibility for the terrorist attack.
Among those killed was Jordanian citizen Nawras Alassaf, a Jordanian citizen whose relatives, all United States citizens, filed the initial complaint.
In the complaint, the plaintiffs allege that the defendants (which include Twitter, Facebook, and Google) had aided, and abetted ISIS and these actions were a cause of Alassah’s death.
Unlike previous social media cases that have attempted to challenge Section 230, this case instead alleges that the defendants should be held liable under the Justice Against Sponsors of Terrorism Act (JASTA), Pub. L. No. 114-222, 130 Stat. 852 (2016).
JASTA amended the Anti-Terrorism Act (ATA), to impose liability for aiding and abetting certain terrorist acts. 18 U.S.C. §2333(d)(2).
The complaint alleged that that ISIS’s use of social media radicalized terrorist Masharipov. The complaint further alleged that the defendants had long known that their platforms were assisting ISIS’s terrorist activities, describing a series of public statements by government officials and reports in numerous media sources detailing the way the defendants were doing so.
Additionally, the complaint that Google (parent company of YouTube indeed “reviewed and approved ISIS videos, including videos posted by ISIS affiliated users” and those defendants not only disseminated ISIS materials from the websites, but affirmatively recommended ISIS materials to targeted users.
Support for Holding Social Media Platforms Responsible
Unlike Gonzales in which had dozens of amicus curiae briefs in support of the social media companies, Taamneh had found a great deal of support against the social media platform, coming from retired United States Generals who have served in Iraq and Afghanistan, victims of terrorist attacks, the Anti-Defamation League, and former United States national security officials.
In the brief of the retired U.S. Generals, they highlight the fact that in regard to ISIS,
“social media played a central role in making it, at least for several years, the most successful and most vicious terrorist group in modern history.”
Further, they go on to describe the Defendants’ reading of JASTA as “mistaken”:
It is not only contrary to the statutory text, the principles guiding liability set forth in Halberstam, and JASTA’s legislative history, but it would render the statute toothless since the aiders-and-abettors who assist specific terrorist attacks are almost invariably terrorists themselves or closely related to them.
In Amici’s experience, a civil statute that reaches only the conduct of fellow terror cell members or individuals who assist in the last stages of an attack would be effectively meaningless.
Similarly, in a brief for 470 victims of terrorist attacks who are all individuals comprising direct and indirect victims of acts of international terrorism committed, planned, or authorized by foreign terrorist organizations including al-Qaeda, Hezbollah, the Haqqani Network, Hamas, ISIS, Palestine Islamic Jihad, and the Islamic Revolutionary Guard Corps (IRGC), according to their brief.
This brief notes that the Defendants (the social media companies) claim that JASTA requires plaintiffs to actually trace the path of assistance from the terrorist organization to the specific attack, and that further, they would need to show the defendants knew of the particular attack at the time it provided the assistance.
Like the Generals brief, here they also note that this interpretation of JASTA would “effectively render [it] a dead letter in all but the most obvious cases of terrorist support, i.e., the ones in which terrorists’ supporters happened to admit their intent to support specific acts of terrorism, and those statements were somehow documented and later found in litigation.”
They further note that this is “borderline nonsensical- and certainty not the result Congress intended.”
The Anti-Defamation League’s brief also chooses not to mince words when it comes to their stance.
“The social media companies are not merely passive by-standers to this nefarious use of their infrastructure. In addition to hosting terrorist content posted by FTOs and their supporters and sympathizers, social media platforms play an active role in auto-generating, recommending, and amplifying radicalizing content, as well as connecting users and recommending groups and communities for them to join.”
Stating that just as Section 230 should not immunize social media companies from accountability, JASTA should not be construed so narrowly as to preclude the possibility of liability.
Where Do We Go From Here?
Both Gonzalez and Taamneh will be heard by the Supreme Court on back-to-back days in February 2023. While it is hard to predict where the Court will land, the future of social media, for better or for worse, is on the line.
