SAN FRANCISCO (CN) – Declining to rule on whether the federal Communications Decency Act shields media companies like Twitter from liability in terrorist attacks, a Ninth Circuit panel on Wednesday said the widow of a State Department contractor cannot show Twitter contributed to the terror attack that killed her husband.
In one of the first cases seeking to hold a social media company liable under the U.S. Anti-Terrorism Act, Tamara Fields sued Twitter in January 2016 claiming it failed to block accounts belonging to users associated with the Islamic State group.
She claimed Twitter helped IS inspire a lone-wolf attack that killed her husband, a private contractor, at a police training center in Aman, Jordan, in November 2015. The family of U.S. contractor James Creach, also killed in the attack, joined the lawsuit in March 2016, also claiming Twitter allowed IS to fundraise, spread its propaganda, and recruit more than 30,000 members in a year.
“We're extremely disappointed by the Ninth Circuit's opinion. The Supreme Court has recognized that any provision of material support to terrorist groups facilitates terrorist attacks,” Fields’ attorney Joshua Arisohn said in an email.
At a hearing before the appellate panel in December, Arisohn urged the judges to overturn U.S. District Judge William Orrick’s November 2016 dismissal of the suit, arguing Orrick wrongly concluded the Communications Decency Act shields Twitter from all liability.
Writing for the panel that affirmed Orrick’s ruling Wednesday, Circuit Judge Milan Smith said the families needed to show “at least some direct relationship between the injuries that he or she suffered and the defendant’s acts,” in order to establish proximate cause for their injuries under the anti-terrorism law.
The families’ attorneys argued that directness was unnecessary as the loss of their loved ones based on Twitter’s conduct was “reasonably foreseeable,” a contention the court rejected.
“To be clear, we do not hold that a consideration of foreseeability is irrelevant to, or never required in, a proximate-cause analysis,” Milan wrote. “Proximate cause is an infamously nebulous concept that the court has explained is meant to serve as a generic label.
“However, for purposes of the ATA, it is a direct relationship, rather than foreseeability, that is required.”
He added, “Plaintiffs-appellants have not pleaded that Twitter’s provision of communication equipment to ISIS, in the form of Twitter accounts and direct messaging services, had any direct relationship with the injuries that Plaintiffs-Appellants suffered. At most, the [Second Amended Complaint] establishes that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But the second amended complaint does not articulate any connection between Twitter’s provision of this aid and plaintiffs-appellants’ injuries.”
Smith said because the families failed to prove Twitter’s actions played a sufficient role in their loved ones’ deaths, the court wouldn’t address the second question presented by their case: whether Twitter is protected from liability under the Communications Decency Act.
Seth Waxman, Twitter’s attorney in the case, did not return a phone call seeking comment Wednesday.
Arisohn said the appellate panel’s ruling runs counter to the intent of the law.
“Here, Twitter knowingly provided social media accounts to ISIS and ISIS used those accounts to recruit thousands of new members, to fundraise millions of dollars and to spread its vile propaganda around the world. In other words, ISIS used Twitter accounts to amass the resources needed for carrying out numerous terrorist attacks, including the Nov. 9, 2015, shooting in Amman, Jordan, in which Mr. Fields and Mr. Creach were killed,” he told Courthouse News.
“Requiring a more direct connection between the provision of material support to terrorists and the attacks that they carry out contravenes the central purpose of the Anti-Terrorism Act: holding enablers of terrorists accountable,” he said.
As for whether he will challenge the ruling, Arisohn said, “We are exploring all options going forward.”