Twitter Not Liable for ISIS Use of Site

On January 31st, the U.S. Court of Appeals for the Ninth Circuit held that Twitter can’t be held liable for allegedly allowing the Islamic State (ISIS) to use its social network to spread propaganda. The case, Fields v. Twitter, Inc., is brought by a pair of plaintiffs whose family members were killed in 2015 in an ISIS terrorist attack in Jordan. Significantly, this is the first appellate ruling to address if and when social media services, like Twitter and Facebook, can be liable for terrorist acts committed by terrorist organizations who have accounts on their websites.

The plaintiffs sued Twitter pursuant to the civil remedies provision of the Anti-Terrorism Act. The plaintiffs accused Twitter of violating the provision by knowingly providing material to support to the terrorist organization. More specifically, they alleged that Twitter, knowingly and recklessly, provided material support in the form of Twitter accounts and direct-messaging services, and thereby proximately caused the deaths of their family members. In support of their claims, plaintiffs showed that at least 79 Twitter accounts were official ISIS accounts. Moreover, that ISIS used Twitter’s Direct Messaging feature to communicate with potential recruits and for fundraising purposes. Finally, they alleged that Twitter allowed ISIS to attract more than 30,000 foreign recruits.

A federal district court in California dismissed the case pursuant to Section 230 of the Communications Decency Act, which protects online publishers from liability for their users’ content. However, the Ninth Circuit sidestepped the applicability of Section 230 and dismissed the plaintiffs case on causation grounds. The court held that the Anti-Terrorism Act (ATA) requires proximate causation, not just but-for-causation. In justifying their reasoning, the court was skeptical of the burden that cases like this would place on court’s attempting to determine damages. “Communication services and equipment are highly interconnected with modern economic and social life, such that the provision of these services and equipment to terrorists could be expected to cause ripples of harm to flow far beyond the defendant’s misconduct. Nothing . . . . indicates that Congress intended to provide a remedy to every person reached by these ripples.” While the court did potentially acknowledge that the platform that Twitter provides these terrorist organizations could advance the group’s cause to some degree, the court could not find any connection between Twitter’s providing of this platform and the injuries suffered by the victims.

Moving forward, the plaintiffs could seek a rehearing en banc, or, appeal to the Supreme Court. Certainly, this will not be the last case of its kind, as social media continues to expand its influence around the globe. Nevertheless, it’s difficult to envision any court ruling differently than the Ninth Circuit did without a more direct connection between the platform and the injuries sustained in future attacks. Despite their success in court thus far, social media providers are stepping up their efforts to combat terrorism. Something to keep an eye out for is whether Congress will decide to intervene. Because this ruling did not turn on the applicability of Section 230, it is possible that Congress could draft a different statue, that could lead to different legal outcomes.