SAN FRANCISCO (CN) - Arguing before the Ninth Circuit Wednesday, a Twitter attorney predicted technology companies would be drowning in lawsuits if the appeals court revives a case accusing Twitter of helping inspire a terror attack in Jordan.
"Every time an act of terror is committed in the world, some lawsuit is filed against Twitter or Google or Facebook, or often all three of them," said Twitter attorney Seth Waxman of WilmerHale in Washington D.C.
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 for failing to block accounts belonging to users associated with ISIS. She claimed the company helped ISIS inspire a lone-wolf attack that killed her husband, a private contractor, at a police training center in Aman, Jordan, on Nov. 5, 2015. The family of U.S. contractor James Creach, also killed in the attack, joined the lawsuit in March 2016.
On Wednesday, Fields' attorney urged a Ninth Circuit panel to overturn U.S. District Judge William Orrick's November 2016 dismissal of the suit, arguing the judge wrongly concluded that the Communications Decency Act shields Twitter from all liability.
The statute only exempts companies from liability for content published on their websites, not for giving social media accounts to terrorists, argued attorney Joshua Arisohn of Burson & Fisher in New York.
"Handing someone a tool that can be used to create content is not the same as disseminating content," Arisohn said.
But Ninth Circuit Judge Milan Smith questioned how Twitter could know people signing up for accounts were involved in terrorism unless it examined the content.
"That's your problem," Smith said. "You're hoisted up on your own petard because if there is no content, then how do you get to foreseeability? How do you get to the causation?"
Smith suggested the mere act of obtaining an account doesn't necessarily help terrorists carry out attacks, but using those accounts to create content can help them raise funds, recruit members and coordinate attacks.
Arisohn replied that the law clearly states entities can be held liable for providing material support to terrorists, even in the form of social media accounts. Providing social media accounts to terrorists is not so different from giving money to terrorists, he argued.
"The non-financial material support given to terrorist groups is really just as fungible as money," Arisohn told the panel.
"Under that argument, doesn't any company that has any resemblance to Twitter - Google, Microsoft, Facebook, you name it, phone companies - aren't they all going to be bankrupt in about 20 days because you'll sue them because their very existence ... made it possible?" Smith asked.
Arisohn replied that liability would be limited to those that knowingly give material support to terrorists.
"It's not an everyday occurrence that Americans are knowingly providing support to terrorists," he said.
Waxman countered that social media companies like Twitter would suffer from what Ninth Circuit Judge Alex Kozinski termed "death by ten thousand duck bites," referring to a flood of litigation, in a 2008 en banc ruling, Fair Housing Council of San Fernando Valley v. Roomates.com.
"This was one of the very first cases brought against Twitter, Google or Facebook," Waxman said of the Fields suit. "It has generated many, many copycat cases. It is very important for this court to speak clearly and quite emphatically."
U.S. District Judge Steven McAuliffe, sitting on the panel by designation from the District of New Hampshire, asked Waxman if, hypothetically, Twitter could be held liable without the Communications Decency Act shielding publishers from liability for content posted by their users.
Waxman replied that the plaintiffs would have to present evidence that Twitter was directly engaged in activities supporting violent acts intended to intimidate or coerce a civilian population, as defined in the anti-terrorism statute.
"The operation of a platform for freedom of expression offered to anyone who complies with the Twitter rules - knowing that out of the billion account holders, there will be a handful of people using it for inappropriate, illegal or violent purposes - does not satisfy the definition of an act of international terrorism," Waxman said.
Given the last word, Arisohn urged the panel to reverse Judge Orrick's dismissal, arguing that instruments of communication are just as crucial as money when it comes to organizing terror attacks.
"I don't think there can be any doubt given how important these Twitter accounts were to ISIS, and that they played a material role in all the attacks that they carried out, including the one in which Mr. Fields and Mr. Creach were killed," Arisohn said.
Ninth Circuit Judge Sandra Ikuta joined Smith and McAuliffe on the panel.
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