Supreme Court Questions Twitter’s Knowledge in ISIS Case

The Supreme Court further explored whether a social media platform can be held liable for aiding and abetting terrorists if it turns a blind eye to known terrorists’ accounts, during oral argument Wednesday in Twitter v. Taamneh (docket 21-1496) (see 2301120061). A day earlier it heard oral argument in Gonzalez v. Google (docket 21-1333) (see 2302210062).

The Taamneh 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.

“Willful blindness” is something the Supreme Court has said can “constitute knowledge,” said Justice Sonia Sotomayor. There are allegations Twitter removed certain users from its platform for suspected terror activity but didn’t work to find other, similarly named entities, she said. Based on the complaint, Twitter knew ISIS held certain platform accounts but didn’t remove those accounts, she said.

The Taamneh complaint isn’t advancing the argument the platform aided and abetted by not removing ISIS accounts, said Eric Schnapper, who argued for the victims in both cases. Schnapper said he’s arguing the platform’s affirmative content recommendations for ISIS-related content is what constitutes aiding and abetting under the ATA.

“If this were a criminal case, I think it's clear that there would not be aiding and abetting liability,” said Justice Samuel Alito. But the high court has to decide this case “presumably under” a standard established by Halberstam v. Welch. A U.S. Court of Appeals for the D.C. Circuit decision in that 1983 case establishes the legal framework for aiding and abetting liability. Halberstam involved 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,” it said.

Based on that decision, a defendant must be “generally aware of his role as part of an illegal or tortious activity” to be held liable, said Alito. He suggested if Twitter knew ISIS is a terrorist group and its members were using the platform for the purpose of furthering their goals, then the platform is “aware of its role.” But Alito questioned whether the aid was “knowingly and substantial,” which is required under the statute.

The complaint doesn’t include any allegation the defendants provided “substantial assistance, much less knowing substantial assistance” to the attack in question or any other attack, said Seth Waxman, who argued for Twitter. The platform had “no intent” to aid ISIS’ terror activity, he said. What the platforms would have had to have known to be found liable is they were providing “substantial assistance” to the act of international terrorism that injured the plaintiff and that their action would substantially assist an act of international terrorism, he said.

Justice Elena Kagan questioned why it wouldn’t be aiding and abetting if Twitter knowingly turned a blind eye to users it knew engaged in terror activity. She asked how that doesn’t constitute “substantial assistance.” Waxman told her the “hornbook principle” is that the platform isn’t “helping or encouraging” someone to do something wrong or illegal. Kagan suggested the platform is helping by providing a service to the criminals. Waxman argued the plaintiff would have to prove the platform knew about specific posts and content the criminals used to carry out an act of terrorism.

Justice Neil Gorsuch suggested Waxman might be focusing wrongly on linking the platform’s role with the act of terrorism, instead of on the link between the platform providing a service to an individual who committed the act of terrorism. DOJ doesn’t necessarily believe the assistance in question needs to be zeroed in on a specific individual, said DOJ Deputy Solicitor General Edwin Kneedler.

Justice Clarence Thomas asked if a manufacturer of pagers in the 1990s could be held liable for aiding and abetting criminal actions if the company knew certain pager owners engaged in illegal activity. Kneedler said that probably wouldn’t amount to “substantial assistance.” Thomas asked if he himself would be liable for lending a gun to a friend who he knew was a burglar and a murderer and that person committed such crimes. Waxman said the answer is no because the person lending the gun needs to have general awareness about the plans to break the law. Several justices and the attorneys circled back on the need to prove Twitter knew about specific posts related to coordination of the attack in order to find it liable for aiding and abetting.