WASHINGTON (CN) — The Supreme Court spent nearly three hours Wednesday on the question of whether the ability of the Islamic State group to post on Twitter amounts to aiding and abetting.
Spending most of the arguments waffling through various hypotheticals, the justices appeared to struggle to detangle the extent to which Twitter would have known that the group otherwise known as ISIS was responsible for specific attacks and had thus been designated as a terrorist organization.
If this were a criminal case, Justice Samuel Alito remarked, it would be clear Twitter did not aid and abet the Islamic State in carrying out a 2017 terrorist attack in Turkey. Justice Amy Coney Barrett looked ahead, meanwhile, warning that Twitter could be aiding in future attacks if it knew ISIS was using its services.
“If you know ISIS is using it, you know ISIS is going to be doing bad things,” the Trump appointee said. “You know ISIS is going to be committing acts of terrorism.”
Justice Elena Kagan did not seem to separate between Twitter allowing ISIS to use its services and Twitter providing assistance for ISIS to carry out its mission.
“Your platform is providing substantial access to terrorist activity,” the Obama appointee told a lawyer for the website. “How can it be otherwise?”
The justices did appear wary, however, about the possible implications a ruling in the case might have. Justice Brett Kavanaugh asked if news organizations could be considered aiding and abetting terrorists by interviewing them.
“Go back to 1997," the Trump appointee suggested. "CNN did an interview of Osama bin Laden.”
Kavanaugh said was not only famous, it became a famous tool for jihadist recruiting as it marked the first time bin Laden "declared war against the United States to a Western audience."
"Under your theory," the justice pressed one of the lawyers Wednesday, "CNN could have been sued for aiding and abetting the September 11th attacks."
Justice Thomas asked if the court's ruling could make Twitter liable as an aider and abetter in every terrorist act.
The case is one of over a dozen lawsuits that have tried to pin liability on Twitter, Facebook and Google for assisting terrorist organizations by disseminating propaganda, fundraising or recruiting members. For seven years, social media giants have been grappling with such cases in response to Congress’ expansion of secondary liability under the Anti-Terrorism Act. The Justice Against Sponsors of Terrorism Act includes a provision allowing U.S. nationals harmed by acts of international terrorism to bring a cause of action for aiding and abetting.
These suits do not claim the companies intentionally supported terrorist organizations or directly assisted in attacks, and all but one has been dismissed.
The outlier stems from a 2017 terrorist attack carried out by the Islamic State in Istanbul, Turkey. An individual affiliated with ISIS, Abdulkadir Masharipov, fired 120 rounds into a nightclub containing 700 people. The massacre killed 39 people and injured 69 others. Among the victims was Nawras Alassaf, whose family would later bring a suit against Twitter, Google and Facebook claiming they aided and abetted the attack.
Alassaf’s family claims Masharipov was radicalized by social media available to ISIS. Claiming that the internet companies knew their sites assisted in terrorist activities, the family pointed to government and news reports, along with the group using official accounts. They say ISIS would not have been able to carry out terrorist activities had it not been able to access these sites. ISIS videos were removed only, according to the complaint, if a user filed a complaint against a specific post.
A federal judge dismissed all of the claims, but the Ninth Circuit later reinstataed the aiding and abetting claims under the Anti-Terrorism Act.
The Alassaf family claims their arguments are supported by the text of the statute and the court’s precedents.
“The terrorist attack which injured the plaintiffs was part of ISIS’s overall terrorist campaign and allegedly was caused by the defendants’ substantial assistance to that terrorist enterprise,” Eric Schnapper, an attorney at the University of Washington School of Law representing the Alassaf family, wrote in their brief. “In that manner, the complaint alleged, the defendants aided and abetted the commission of the attack that injured the plaintiffs.”
While Twitter and the other social giants claim they did what they could to avoid helping ISIS, the Alassaf family argues it wasn’t enough.
“The complaint alleges that the defendants had the technical ability to identify that material, and simply chose not to do so,” Schnapper wrote.
Twitter argues there is nothing it can do to satisfy these suits if it's not enough to do everything it can to stop terrorist videos from spreading.
“It is unclear what a business that broadly provides generalized services could do to avoid liability for aiding and abetting an act of international terrorism, because Plaintiffs acknowledge that Defendants regularly removed terrorist content from their platforms, and a plaintiff can always allege that a defendant could have done more,” Twitter's attorney Seth Waxman with WilmerHale wrote in the company’s brief. “Congress did not enact a statute that attaches liability based on such an ill-defined and capacious theory. The Court should reverse.”
Arguments in the Twitter case occurred just 24 hours after the court heard a case attempting to hold Google accountable for ISIS videos spreading on YouTube. While that case concerned tech companies' liability under Section 230 of the Communications and Decency Act, a ruling in Wednesday’s case may impact how it proceeds. If the court sides with Twitter, then there would be no underlying cause of action for Section 230 to shield in the Google case.
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