Did Twitter violate Anti-Terrorism Act by providing ISIS accounts?

On August 10, 2016, the United States District Court for the Northern District of California, in Fields v. Twitter, Inc., dismissed the plaintiffs’ complaint against Twitter with leave to amend. The plaintiffs’ complaint arose out of the deaths of Lloyd Fields, Jr. and James Damon Creach, two United States government contractors who were working at a law enforcement training center in Amman, Jordan. Fields and Creach were murdered at the hands of Anwar Abu Zaid, a Jordanian police captain who was inspired to commit the act after watching the ISIS execution of the Jordanian pilot Maaz al-Kassasbeh via a video that ISIS distributed through a Twitter account.

The plaintiffs’ claim alleged that Twitter violated parts of the Anti-Terrorism Act by knowingly provided material support to ISIS by permitting ISIS to use its social network as a tool for spreading extremist propaganda. Twitter’s primary argument for the dismissal of the plaintiffs’ claim was the application of Section 230(c)(1) of the Communications Decency Act (the “CDA”), which states that “[n]o 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.” Twitter argued that since Twitter’s actions constituted publishing activity, the plaintiffs’ claim is barred by the CDA.

In an effort to avoid dismissal under Twitter’s legal theory, the plaintiffs argued that their claims are not based on Twitter’s publishing activity, or content-based regulation, but solely by Twitter’s knowing provision of accounts to a member of ISIS. The court found several issues with the plaintiffs’ “provision of accounts” theory.

First, the court found that the plaintiffs’ argument that its claim is not based on the content of tweets is not supported by the complaint. According to the court, the plaintiffs’ claim is, in fact, that Twitter provided material support for ISIS by permitting ISIS to use accounts as a tool for spreading extremist propaganda. Such a claim necessarily involves the content published by ISIS accounts. This content-based claim means that Twitter’s alleged wrongdoing was the decision to allow these harmful posts, which would constitute “publishing” activity and thus fall under the protection of the CDA.

The second problem with the plaintiffs’ “provision of accounts” theory, according to the court, was that, even if the plaintiffs’ claim supported such a non-content-based theory, Twitter’s actions would still constitute “publishing” activity. The court noted that it failed to see the difference, for purposes of identifying “publishing” activity under the CDA, between (1) permitting a third party to have and use an account and (2) making decisions about what a third party may post on the account. Both actions, according to the court, would constitute “publishing” and would therefore fall under the protection of the CDA.

Finally, the court found that the plaintiffs did not adequately show causation in the complaint. The complaint, which alleged a violation of the Anti-Terrorism Act, must have supported a plausible inference of proximate causation between Twitter’s provision of accounts to ISIS and the deaths of Fields and Creach in order to overcome a dismissal. According to the court, the causal connection between Abu Zaid viewing the ISIS execution videos and killing Fields and Creach was tenuous at best. Further, the court reasoned that causation would be especially hard to find under the circumstances considering that the plaintiffs argued that their claims are not based on the content of any posts.

The court then turned to the plaintiffs’ second theory to circumvent the CDA, which was the “direct messaging theory.” The plaintiffs argued that Twitter’s direct messaging feature did not constitute publishing because it involved private messaging between users, and therefore, the CDA was not applicable to bar the plaintiffs’ claims. The court swiftly disposed of this argument because it was not able to find any legal distinction between public and private messaging for purposes of publication activity under the CDA.

Ultimately, this decision shows the importance of the CDA as a potential defense to providers of interactive computer services, including social media platforms. According to the CDA, in general, any publishing or speaking activities conducted by users cannot be imputed to the interactive computer services provider. Laws addressing the immunity of interactive computer services providers vary widely among countries (see our previous posts on Canada’s ruling and South Africa’s high court ruling) and should always be considered, especially for companies that are providing blogs or other social media platforms to a multi-national audience.