Terror Victim’s Family Seeks to Revive Claims Against Facebook

Facebook CEO Mark Zuckerberg arrives to testify before a House Energy and Commerce hearing on Capitol Hill in Washington, on April 11, 2018, about the use of Facebook data to target American voters in the 2016 election and data privacy. (AP Photo/Andrew Harnik)

MANHATTAN (CN) – The family of an American man stabbed to death in Israel by Hamas members two years ago asked a federal judge to reconsider his dismissal of their lawsuit against Facebook in light of CEO Mark Zuckerberg’s testimony to Congress last week.

“Since Mark Zuckerberg’s testimony in Congress, we thought our case got a lot stronger, and we would like the court below to consider not only the canned story that was spoon-fed to it by Facebook’s lawyers but also the testimony that Zuckerberg gave in Congress, which is different,” plaintiffs’ attorney Robert Tolchin, who filed the motion, said in a phone interview Monday.

The original complaint was filed by Tolchin and Israeli human rights lawyer Nitsana Darshan-Leitner in July 2016. It alleged the Palestinian organization Hamas – which has been designated by many governments, including the U.S., as a terrorist group – used Facebook to “promote and carry out…terrorist activities.”

According to the complaint, those activities include a March 2016 attack in Israel that killed 29-year-old U.S. veteran Taylor Force, whose father Stuart is the lead plaintiff, as well as other deadly strikes.

The case was dismissed by U.S. District Judge Nicholas Garaufis last May.

Zuckerberg testified last week that rather than being a neutral platform or strict observer, Facebook deploys both algorithms and thousands of human employees to monitor — and in some cases, censor — content on the site. What is less clear is how the company makes determinations on what to censor – for example, hate speech, which is expressly protected in the U.S. under the First Amendment but is barred in other countries.

“Zuckerberg’s testimony makes it clear that Facebook employs its own subjective assessment when deciding whether to censor content,” Monday’s motion states. “It appears that Facebook’s actual policy is to sometimes censor terrorist content and sometimes not, for reasons now known only to Facebook.”

The congressional testimony, which indicated Facebook “plays a very active role pruning and curating the content,” differed from the argument presented by Facebook’s lawyers during the Force case, Tolchin said Monday.

They had previously claimed Facebook was “hands-off and anybody can post, and therefore they’re not responsible for what people can post,” he said.

Darshan-Leitner wrote in a statement Monday that it was clear Facebook should have done more to protect the plaintiffs in the Force case.

“It’s now obvious that the social media giant has long been deeply involved in editing and manipulating the content on its platform, and has had the technology to block the incitement to terrorism as the plaintiffs in our cases contend,” she said. “A really moral company would be doing more than mouthing empty ‘my bads’ and, instead, be reaching out to compensate these families.”

In his dismissal of the lawsuit last year, Judge Garaufis cited the Communications Decency Act of 1996, which protects publishers by decreeing that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The plaintiffs appealed, but their case was put on hold pending the resolution of a communications case involving Microsoft. In the wake of Zuckerberg’s charged testimony, they have now found a new sense of urgency.

The Antiterrorism Act is the core of the plaintiffs’ case, according to Tolchin.

“We say Facebook was providing an extraordinarily valuable communication program,” he said. “One guy in a basement in Gaza can be heard around the world.”

Facebook representatives declined to comment late Monday evening. 

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