Takeaways from the Supreme Court’s hearing on Twitter’s liability for terrorist use of its platform

CNN

By Brian Fung and Tierney Sneed, CNN

After back-to-back oral arguments this week, the Supreme Court appears reluctant to hand down the kind of sweeping ruling about liability for terrorist content on social media that some feared would upend the internet.

On Wednesday, the justices struggled with claims that Twitter contributed to a 2017 ISIS attack in Istanbul by hosting content unrelated to the specific incident. Arguments in that case, Twitter v. Taamneh, came a day after the court considered whether YouTube can be sued for recommending videos created by ISIS to its users.

The closely watched cases carry significant stakes for the wider internet. An expansion of apps and websites’ legal risk for hosting or promoting content could lead to major changes at sites including Facebook, Wikipedia and YouTube, to name a few.

For nearly three hours of oral argument, the justices asked attorneys for Twitter, the US government and the family of Nawras Alassaf — a Jordanian citizen killed in the 2017 attack — how to weigh several factors that might determine Twitter’s level of legal responsibility, if any. But while the justices quickly identified what the relevant factors were, they seemed divided on how to analyze them.

The court’s conservatives appeared more open to Twitter’s arguments that it is not liable under the Anti-Terrorism Act, with Justice Amy Coney Barrett at one point theorizing point-by-point how such an opinion could be written and Justice Neil Gorsuch repeatedly offering Twitter what he believed to be a winning argument about how to read the statute.

The panel’s liberals, by contrast, seemed uncomfortable with finding that Twitter should face no liability for hosting ISIS content. They pushed back on Twitter’s claims that the underlying law should only lead to liability if the help it gave to ISIS can be linked to the specific terrorist attack that ultimately harmed the plaintiffs.

Here are the takeaways from Wednesday:

The key issues: “knowingly” and “substantial” assistance

The justices spent much of the time picking through the text of the Anti-Terrorism Act, the law that Twitter is accused of violating — especially the meaning of the words “knowingly” and “substantial.”

The law says liability can be established for “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”

Justice Sonia Sotomayor seemed unpersuaded by Twitter attorney Seth Waxman’s arguments that Twitter could have been liable if the company were warned that specific accounts were planning a specific attack, but that those were not the facts of the case and Twitter was therefore not liable in the absence of such activity and such warnings.

Chief Justice John Roberts grappled with the meaning of “substantial” assistance: Hypothetically, he asked, would donating $100 to ISIS suffice, or $10,000?

“Substantial assistance” would hinge on the degree to which a terror group actually uses a platform such as Twitter to plan, coordinate and carry out a terrorist attack, Waxman said at one point. The existence of some tweets that generally benefited ISIS, he argued, should not be considered substantial assistance.

The justices alluded to the gravity of the dilemma as they drew analogies to other industries that have grappled with related claims.

“We’re used to thinking about banks as providing very important services to terrorists,” said Justice Elena Kagan. “Maybe we’re not so used to, but it seems to be true, that various kinds of social media services also provide very important services to terrorists,” the liberal justice said. “If you know you’re providing a very important service to terrorists, why aren’t you [said to be] providing substantial assistance and doing it knowingly?”

Plaintiffs lawyer again struggles to draw a limiting principle

Eric Schnapper, an attorney representing the Alassaf family — who had also argued on behalf of the plaintiffs in Tuesday’s Supreme Court arguments in Gonzalez v. Google — again struggled to answer justices’ questions as they sought to find some limiting principle to constrain the scope of the Anti-Terrorism Act.

Justice Brett Kavanaugh asked Schnapper to respond to concerns that a ruling finding Twitter liable for the ISIS attack — even when the tweets it hosted had nothing to do with it — would negatively affect charities and humanitarian organizations that might incidentally assist terrorist organizations through their work.

Schnapper suggested those groups might be insulated from liability due to the law’s “knowledge” requirement, but did not offer the justices a way to draw a bright-line distinction.

Justice Clarence Thomas hinted at the potential expansiveness of what Schnapper was proposing in calling for Twitter to be held liable for the ISIS tweets.

“If we’re not pinpointing cause-and-effect or proximate cause for specific things, and you’re focused on infrastructure or just the availability of these platforms, then it would seem that every terrorist attack that uses this platform would also mean that Twitter is an aider and abettor in those instances,” Thomas said.

“I think in the way that you phrased it, that would probably be, yes,” Schnapper replied, going on to suggest a test involving “remoteness and time, weighed together with volume of activity.”

Justices fixate on Osama bin Laden hypotheticals

Several justices asked the parties to respond to hypotheticals about what liability a business would have for dealing with Osama bin Laden. Their reliance of the terrorist in their examples seemed to get at the “knowing” requirement of the law.

However, the court is being asked to issue an opinion that will guide lower courts in cases that likely will not involve such high-profile figures.

Kagan invoked bin Laden’s name when she put forward a hypothetical for US Deputy Solicitor General Edwin Kneedler about a bank that offered services to a known terrorist that were the same services it provided its non-terrorist clients. Kneedler, arguing that Twitter should not be found liable under the anti-terrorist law in this case, said that in that scenario, the bank could be sued under the law.

Other exchanges during the hearing revolved around the liability for a business that sold bin Laden a cell phone, with Justice Ketanji Brown Jackson asking if the business could be sued even if bin Laden did not use the cell phone for the terrorist attack that injured the plaintiff. Schnapper said that bin Laden would not need to use the cell phone in an attack for the seller to be found liable.

Neil Gorsuch’s theory of the law doesn’t get much traction

Gorsuch put forward a theory for why Twitter should prevail in the case but neither Twitter nor the US Justice Department took him up on it.

Gorsuch gave Waxman a chance to reframe his arguments for why Twitter shouldn’t be liable, based on language in the law suggesting a defendant is liable for assistance provided to a person who commits an act of international terrorism. Gorsuch noted the lawsuit against Twitter doesn’t link Twitter to the three people involved in the 2017 attack on the Istanbul nightclub.

Waxman declined to fully adopt that view, arguing instead that the “aid and abet” language in the statute should be tied to the terrorist activity that gives rise to a suit.

When Kneedler was up to podium, Gorsuch offered up the theory again, implying it would be a way for Twitter to avoid liability in this case.

“It seems to me that that’s a pretty important limitation on aiding and abetting liability and conspiracy liability … that you have to aid an actual person,” Gorsuch said. “It’s not just a pedantic point. It has to do with the idea that you’re singling somebody out, and that is different than just doing your business normally, and that does help limit the scope of the act.”

Jackson later hypothesized why Twitter and the US government were reluctant to endorse Gorsuch’s interpretation of the law, suggesting it was not the limitation Gorsuch thought it was.

“I’m wondering whether the concern about that is, if you’re focusing on the person [who committed a terrorist act]… that it seems to take the focus away from the act itself,” she told Kneedler. “You could ‘aid and abet’ a person who committed the act, even if it’s not with respect to that act.”

What’s next?

The Taamneh case is viewed as a turning point for the future of the internet, because a ruling against Twitter could expose the platform — and numerous other websites — to new lawsuits based on their hosting of terrorist content in spite of their efforts to remove such material.

While it’s too early to tell how the justices may decide the case, the questioning on Wednesday suggested some members of the court believe Twitter should bear some responsibility for indirectly supporting ISIS in general, even if the company may not have been responsible for the specific attack in 2017 that led to the current case.

But a key question facing the court is whether the Anti-Terrorism Act is the law that can reach that issue — or alternatively, whether the justices can craft a ruling in such a way that it does.

Rulings in the cases heard this week are expected by late June.

This story has been updated with Wednesday’s developments.

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