Reference no: EM133684194

Providing material support or resources for terrorism is a crime prohibited by the USA PATRIOT Act (Title 18 of the United States Code, § 2339A and § 2339B). Victims of terrorism "may sue and shall recover threefold the damages they sustained, including attorney's fees" (18 U.S. Code § 2333). Most social media sites have explicit terms of use that prohibit content that endorses terrorism. The operators of these sites also employ workers who investigate reports of terms-of-use violations, removing material that is found to be in violation of those terms of use.

The Communications Decency Act (CDA) (47 U.S. Code § 230) states, "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." This clause in the CDA provides social media companies (which host-or republish-a wide variety of speech) protection against a range of laws that might otherwise be used to hold them legally responsible for what others say and do-for instance, libel, copyright infringement, and yes, even violation of the USA PATRIOT Act. Under the CDA, lawsuits can be brought against the relevant speakers or authors, but not against the publishers.

Section 230 of the CDA has certainly stimulated the growth of social media sites; however, there have been several recent lawsuits against social media companies by the families of terrorism victims who argue that the intent of Congress when it passed the CDA was not to facilitate access to powerful communications tools by known terrorist organizations who use the sites to recruit, radicalize, raise funds, spread propaganda, and plan attacks.

In November 2015, a Jordanian police captain opened fire on instructors at the Jordan International Police Training Center in Amman, Jordan, killing five people, including two Americans. The terrorist group ISIS claimed credit for the carnage and promoted it on social media. The families of the two Americans killed in the incident filed a lawsuit against Twitter in January 2016. The families alleged that Twitter's failure to halt ISIS propaganda was a violation of U.S. anti-terrorism laws and that Twitter was instrumental in the fundraising and recruitment efforts of ISIS. The plaintiffs, however, did not specifically charge that ISIS used Twitter to recruit the person who committed the terrorist attack that injured the plaintiffs or that Twitter was used to plan the attack. The U.S. district judge overseeing the case ruled that "As horrific as these deaths were, under the CDA, Twitter cannot be treated as a publisher or speaker of ISIS's hateful rhetoric and is not liable under the facts alleged."

A similar lawsuit was filed in June 2016 against Facebook, Google, and Twitter by the family of Nohemi Gonzalez, the only American among 130 killed in coordinated attacks by ISIS at a Paris soccer stadium and concert venue in November 2015. Gonzalez's family blamed the social media companies for providing "material support" to the terrorists, claiming that the terrorists use the social networks "as a tool for spreading extremist propaganda, raising funds, and attracting new recruits." The attorney for the family protested, "These companies are not doing a good enough job from keeping the terrorists from using their network." Furthermore, the family argued, in some cases, the social media sites place ads next to ISIS content and share with the terrorist group the revenue generated from those ads. Regardless of the outcome of the court case, the family's arguments might be successful in the court of public opinion. If so, social media companies might choose to increase their efforts to restrict use of their networks by terrorists even if they are not required by law to do so.

A June 2016 mass shooting killed 49 people and injured 68 others at the Pulse nightclub in Orlando, Florida. Lawyers representing the families of the victims filed suit in December 2016 against Facebook, Twitter, and Google. They alleged that the three companies "purposefully, knowingly, or with willful blindness" provided "material support" to a foreign terrorist organization whose social media inspired a terrorist to target the LGBT club. The lawyers filing the lawsuit intend to follow a different strategy and show that by matching users' content with targeted advertising, the social media sites are, in effect, producing their own, novel content, and profiting from terrorist users' content.

Questions:

1. Do you believe that social media companies are doing enough to shut off the communications of terrorist groups? Do you have any ideas for actions they could take that would help solve the problem?

2. Should U.S. anti-terrorism laws take precedence over the "safe harbor" provisions of the Communications Decency Act? Why or why not?