How much did they know?
Following yesterday’s lackluster attack on Section 230, today’s attempt to curb the law’s broad protections is much more pointed. As you likely know, Section 230 of the Communications Decency Act protects large content hosts like Youtube and Twitch from facing legal liability when one of their users posts offensive or harmful content to the platform. Even the really harmful stuff. Youtube & Co. may have to actually do something about that depending on the outcome of this case.
The U.S. Supreme Court on Wednesday heard for a second straight day a bid to hold internet companies accountable for contentious content posted by users, this time involving a lawsuit against Twitter Inc by the American relatives of a Jordanian man killed in an Istanbul nightclub massacre.
The justices on Tuesday heard arguments in an appeal arising from a separate lawsuit against Google LLC-owned YouTube, part of Alphabet Inc (GOOGL.O), by the family of an American woman killed in a Paris attack by Islamist militants. Both lawsuits were brought under a U.S. law that enables Americans to recover damages related to “an act of international terrorism.”
Relatives of Nawras Alassaf accused Twitter of aiding and abetting the Islamic State group, which claimed responsibility for the Jan. 1, 2017, attack that killed him and 38 others shortly after midnight during a New Year’s celebration, by failing to police the platform for its accounts or posts.
The sensitive facts of this case may explain why, despite centering around Section 230, it appears to be an afterthought:
A separate non-Section 230 but still very key matter to determine is the nature of Youtube’s assistance to Islamist militants. Sure, there’s no doubting that the content was on the site, but what’s the difference between abstractly knowing your platform may be used for terroristic ends and knowing your platform is being used for terroristic ends?
“How specific must the knowledge be? There must be a range between aiding the enterprise and knowing the time, date and location of the particular act, right?” Barrett asked.
A key issue is whether the family’s claims sufficiently allege that the company knowingly provided “substantial assistance” to an “act of international terrorism” that would allow the relatives to maintain their suit and seek damages under the anti-terrorism law.
President Joe Biden’s administration is backing Twitter in the case, saying the Anti-Terrorism Act imposes liability for assisting a terrorist act and not for “providing generalized aid to a foreign terrorist organization” with no causal link to the act at issue. The administration backed the plaintiffs in the case argued on Tuesday.
Knowledge can be a very high threshold to prove, legally speaking. Proving that Youtube C-suite had to know the time, place, temperature, and star placements that ISIS had in mind for their recruitment scheme would be a nearly impossible standard for future plaintiffs to meet, just as dropping the gavel because they should have known that something — eventually — might definitely could happen would turn the knowledge requirement into more of a let’s just see how the Justices feel about this specific instance sort of vibe. Wouldn’t put it past the YOLO court, but even the right wing justices are treading water lightly.
U.S. Supreme Court Debates Case Against Twitter Over Istanbul Massacre [Reuters]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
