Big Tech Aided and Abetted Islamic State Group, SCOTUS Told in Twitter Case

The complaint stems from a 2017 Istanbul terrorist attack. Relatives of one of the 39 victims murdered in the attack sued Twitter, Google and Facebook under the Anti-Terrorism Act (ATA). Plaintiffs argued the platforms allowed the Islamic State group to share information and recruit members, therefore aiding and abetting the crime.

Upholding the 9th Circuit’s decision would expose the tech industry to massive liability and have a chilling effect on platforms’ ability to carry free speech, tech groups argued in briefs siding with Twitter. The ACLU, the R Street Institute, the Reporter’s Committee for Freedom of the Press, the Center for Democracy & Technology, CCIA, CTA and the U.S. Chamber of Commerce all argued in favor of protecting the platforms. The U.S. government also argued in favor of reversal, saying plaintiffs didn’t plausibly allege the knowledge and substantial assistance required for aiding and abetting liability.

Liability in such cases isn’t limited to instances in which “a particular act of assistance is closely connected to the particular act of international terrorism that injured the plaintiff,” attorneys for the Tammneh family argued. The defendants are liable under the Justice Against Sponsors of Terrorism Act (JASTA), which amended the ATA to impose liability for aiding and abetting certain acts of terror, they said. JASTA gives civil litigants the “broadest possible basis” for seeking relief against defendants in such cases, they argued.

A U.S. Court of Appeals for the D.C. Circuit decision in Halberstam v. Welch establishes the legal framework for aiding and abetting liability, Taamneh family lawyers said. That decision centered around a series of burglaries, the last of which resulted in murder. The D.C. Circuit found the defendant guilty of aiding and abetting, even though the defendant might not have necessarily known about the burglaries. The defendant was found liable due to a role in selling stolen property after the fact, which substantially assisted the overall “wrongful enterprise,” they said. In Taamneh, the platforms “recommended and disseminated a large volume of written and video terrorist material created by ISIS, and described the nature of that material and the manner in which the defendants thus assisted ISIS’s efforts to recruit terrorists, raise money, and terrorize the public,” attorneys for the family argued.

The filing dismisses the U.S. government’s argument that JASTA and Halberstam “require knowing and substantial assistance” for aiding and abetting liability. “Substantial assistance may take the form of supportive acts or encouragement, and Halberstam equates aiding and abetting with conscious participation in wrongdoing,” the U.S. argued.

Arguments from the defendants and the U.S. “are at times inconsistent with the actual holding and facts” of Halberstam, attorneys for Taamneh argued. The defendants’ interpretation of JASTA would render liability meaningless in such cases, narrowing the criteria to something as extreme as handing a fellow terrorist a firearm. That could potentially shield criminals from liability when offering financial contributions, banking services and social media recommendations, they argued: “The United States suggests a complex multi-part standard, which would be difficult for the courts to administer, but not hard for sophisticated actors to circumvent.”

The complaint plausibly alleges the defendants “knew that they were providing substantial assistance to ISIS’s terrorist enterprise,” the filing argued. “Whether the defendants had the requisite knowledge is a question of fact. At this stage in the proceedings, in determining whether a complaint states a claim on which relief can be granted, a court’s role is limited to deciding whether such a factual allegation is plausible.” At the motion to dismiss stage, “these allegations are more than sufficient to state a claim on which relief can be granted,” the filing argued.