Can a technology company be found liable for allegedly aiding and abetting terrorism based on a terrorist organization’s use of the company’s general online platform? In Twitter v. Taamneh and Gonzalez v. Google, the Supreme Court answered: generally, no.
The Court held that the plaintiffs failed to allege, under the Anti-Terrorism Act (“ATA”), that defendants engaged in specific and intentional affirmative conduct that rose to the level of “knowingly providing substantial assistance” such that they aided and abetted the act of international terrorism that injured these particular plaintiffs. But, the Court warned that the elements and factors informing this particular analysis “should not be taken as inflexible codes.” Emphasizing this caveat, the Court has not foreclosed the possibility that a company could find itself liable under the ATA for aiding and abetting international terrorism.
The implications of the Supreme Court’s decision are not limited only to companies providing social media or other online platforms, and rather indicates how all commercial entities may face risk based on the nature of their commercial or other activities. In light of Twitter and Gonzalez, companies should consider:
(1) Whether the nature of their commercial or other activity could be considered passive or active (i.e., affirmative conduct).
(2) Whether they are engaging in commercial or other activity that is specifically tailored to meet the needs of particular customers or conducted in generally the same manner with respect to all customers.
(3) Whether, through their commercial or other activity, they could be considered to have knowledge of a customer’s terrorist scheme and, as a result, intent to aid in the scheme.
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These considerations have major implications for determining questions of aiding and abetting liability under the ATA. In Twitter and Google, the plaintiffs were victims of ISIS terrorist attacks abroad. They alleged that Twitter, Google, and other social media companies hosted and promoted ISIS content in a manner that constituted aiding and abetting international terrorism. Specifically, the plaintiffs alleged that the defendants hosted ISIS content and that the defendants’ algorithms promoted that content to users. While the cases were factually similar, the issues before the Supreme Court were distinct. Twitter focused on whether the plaintiffs’ theory of secondary-liability was valid under the Anti-Terrorism Act while Google concerned the scope of civil immunity under 47 U.S.C. §230 of the Communications Decency Act of 1996.
The Decisions
Under the ATA, 18 U. S. C. §2333(d)(2), those injured by an act of international terrorism can sue anyone “who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” The “act of international terrorism” must have been “committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under [8 U. S. C. §1189] as of the date on which such act of international terrorism was committed, planned, or authorized.”
In Twitter, the Court unanimously held that the plaintiffs had failed to state a claim for aiding and abetting liability under the ATA, vacating the prior decision of the Court of Appeals for the Ninth Circuit. The Court determined that the allegations were “insufficient to establish that these defendants aided and abetted ISIS in carrying out the relevant attack.” Writing for the Court, Justice Thomas stated that “aids and abets” refers to a “conscious, voluntary, and culpable participation in another’s wrongdoing” and that the plaintiffs did not allege that the defendants intentionally provided substantial aid to ISIS or otherwise consciously participated in the attack in which the plaintiffs were harmed by ISIS. Nor were the only actions alleged—hosting a platform for user content and setting up algorithms to display content relevant to user inputs and history—purported to be specifically created or maintained in aid of ISIS.
One of the key questions was “what precisely a defendant must aid and abet.” The plaintiffs asserted that it is simply “the person” while the defendants insisted that it was the “act of international terrorism” that injured the plaintiffs. In other words, the plaintiffs argued that so long as the defendants aided and abetted the terrorist organization generally, they could be liable under the ATA. The Court disagreed and concluded that “the text requires that defendants have aided and abetted the act of international terrorism that injured the plaintiffs—though that requirement does not always demand a strict nexus between the alleged assistance and the terrorist act.” What nexus is required remains undefined.
In Google, a per curiam opinion held that the plaintiffs’ allegations underlying their secondary-liability claims were materially identical to those at issue in Twitter. Because plaintiffs’ claims appear to fail in light of Twitter, the Court declined to address the application of §230. The Court remanded the case to the Ninth Circuit for reconsideration of the plaintiffs’ complaint.
Impact on Technology Companies
The Court’s opinions indicate an inclination to shield social media companies from civil liability under the ATA for a terrorist organization’s use of their platform. By declining to address the application of §230, the Court left in place the broad liability shield that protects companies from being held liable for their users’ speech on their platforms. This result should come as a relief for tech and social media companies. However, the Court made clear that its holding regarding the secondary-liability of the companies was fact-specific and based on a lack of affirmative conduct that substantially furthered the specific attack. It remains unclear what level of affirmative conduct could trigger secondary-liability in other contexts.
Recently, §230 has come under increased scrutiny. Over twenty bills have been proposed in Congress that would repeal or amend it to heighten accountability of technology companies that host terrorist content. Any lessening of the immunity granted by §230 would require technology companies that host third-party content to take a more active role in monitoring and removing potentially harmful content. Some of the world’s largest tech companies have already taken the position that changing §230 would have grave effects on free speech and internet content. Weakening the current immunity afforded by §230 would come at great expense to companies, who would have to invest significant resources into content and algorithm monitoring.
Whether §230 is eventually repealed, amended, or otherwise found inapplicable in ATA cases remains to be seen. And, while Google, Twitter, and others have so far been held not liable under the ATA, the Supreme Court has made it clear that it could conclude otherwise under different facts.
For further information, please contact:
John L. Murino, Partner, Crowell & Moring
jmurino@crowell.com
