Material Support

Another Material Support Suit Against Social Media Companies

By Benjamin Wittes
Tuesday, June 21, 2016, 11:16 AM

Last week saw another lawsuit filed against social media companies for alleged materially supporting terrorists by providing service to ISIS. Here's the AP story on the lawsuit:

NEW YORK (AP) — The father of a young woman killed in the Paris massacre last November is suing Google, Facebook and Twitter, claiming that the companies provided "material support" to extremists in violation of the law.

Reynaldo Gonzalez, whose daughter Nohemi was among 130 people killed in the Paris attacks, filed the suit on Tuesday in the U.S. District Court in the Northern District of California. The suit claims the companies "knowingly permitted" the Islamic State group, referred to in the complaint as "ISIS," to recruit members, raise money and spread "extremist propaganda" via their social-media services.

The Gonzalez suit is very similar to a case brought against Twitter in January by the widow of a contractor killed in an attack in Jordan. It includes numerous identical passages and screenshots, although the lawyers in the cases are different.

In statements, Facebook and Twitter said Wednesday the Gonzalez lawsuit is without merit, and all three companies cited their policies against extremist material. Twitter, for instance, said that it has "teams around the world actively investigating reports of rule violations, identifying violating conduct, and working with law enforcement entities when appropriate."

Here's the complaint:

Twitter Suit

I have written a fair bit about cases, both actual and hypothetical cases, involving allegations of material support for terrorism involving tech companies for providing service to designated terrorist groups which conduct attacks. For background on the interaction of the relevant statutes, see a series of posts about the subject that Zoe Bedell and I wrote a few months ago. Of most immediate relevance to this suit, however, is this post from a few weeks back about the suit filed back in January to which the AP story refers. 

My initial reaction to this lawsuit is similar to my reaction to that one. To the extent the companies defend themselves on grounds that Section § 230 of the Communications Decency Act confers immunity on them, I think that defense should fail for reasons Zoe and I explained here. That said, this case also suffers from the same infirmity as does the one Zoe and I discussed in January: there is no particular reason in the complaint itself to connect the specific attack in question with anything that happened on these social media companies. Even under the somewhat relaxed standard of proximate causation laid out by Judge Posner in the Boim case, the plaintiff still bears the burden of showing a substantial probability that the provision of material support to a terrorist group bears some relationship to the injury. I find it hard to see anything in this complaint that alleges such a connection. The complaint alleges that the companies offered service to ISIS. It alleges that ISIS used social media aggressively. It alleges that the companies monetized ISIS postings and shared revenue. And it alleges that ISIS conducted the Paris attacks in which the plaintiff's daughter died. Leaving aside the truth of any of these allegations, the causal relationship between the supposed offense and the injury will, I suspect, have to be at least somewhat tighter for any of these companies to be liable. 

Like the other case, in other words, I suspect this is not the case that will ultimately test whether and under what circumstances social media companies have exposure under the antiterrorism act civil liability provisions. It should, I think, and will, I suspect, be fail on a motion to dismiss. Also like the earlier case, however, it will test cleanly whether § 230 precludes such litigation entirely.