In the first part of this series, we noted the rather large number of designated foreign terrorist organizations that seem to have open Twitter presences, and we posed the following questions: Is Twitter openly violating the material support law by providing services to these organizations? And if so, does the Constitution preclude deploying that law against the company for activity that bears some significant relationship to publication?
The text of 18 U.S.C. § 2339B is stark:
Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . . , that the organization has engaged or engages in terrorist activity . . ., or that the organization has engaged or engages in terrorism. . . .
The statute defines “material support” as: “any property, tangible or intangible, or service, including . . . communications equipment. . . .”
The Supreme Court in Humanitarian Law Project v. Holder has interpreted § 2339B in several ways that should probably concern Twitter’s general counsel.
First, it specifically rejected the notion that constitutional concerns counsel in favor of understanding the law’s “knowingly” requirement as requiring specific intent to further terrorism or illegal activities. Rather, the justices insisted that “knowingly” means only what it says: that consciousness is required to violate the statute. “Congress plainly spoke to the necessary mental state for a violation of § 2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities,” wrote Chief Justice John Roberts for six members of the court. Uncertainty as to the authenticity of the individual accounts may create a real question as to whether Twitter is “knowingly” providing service to terrorist groups. But as a matter of law, it does not need a mental state beyond knowledge to violate the criminal prohibition.
Second, the Court upheld the statute against a due process vagueness challenge. One could imagine Twitter’s arguing that the statute is vague as applied to it, because there is no way it reasonably can know which of the millions of users who sign up for its services are affiliated with designated foreign terrorist organizations. At the margins—with respect to the users who may or may not be terrorists—this argument probably has legs. But the Supreme Court seems to have foreclosed it with respect to the open and flagrant institutional use of Twitter by the groups themselves—assuming, of course, the accounts are determined to be authentic. The “knowledge requirement of the statute . . . reduces any potential for vagueness,” the chief justice wrote:
Of course, the scope of the material-support statute may not be clear in every application. But the dispositive point here is that the statutory terms are clear in their application to plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness challenge must fail. Even assuming that a heightened standard applies because the material-support statute potentially implicates speech, the statutory terms are not vague as applied to plaintiffs.
Third, in a limited fashion, the Court interpreted the “service” language in the definition of material support. The context is the Court’s distinction between individual conduct in coordination with or at the direction of a terrorist group and wholly independent advocacy or activity that might benefit the group. The latter category of activity, Roberts wrote, the statute does not cover—and the Constitution protects:
“[S]ervice” similarly refers to concerted activity, not independent advocacy. . . . Context confirms that ordinary meaning here. The statute prohibits providing a service “to a foreign terrorist organization.” . . . The use of the word “to” indicates a connection between the service and the foreign group.
What is the minimum connection necessary to constitute “concerted activity”? The Court specifically declines to say, refusing to address as merely hypothetical the following questions in the briefs on the subject: “Would any communication with any member be sufficient? With a leader? Must the ‘relationship’ have any formal elements, such as an employment or contractual relationship?”
But it’s worth noting that even if the requisite relationship includes “formal elements,” Twitter’s relationship with its users—including Hezbollah, Hamas, and the PKK—is defined by precisely such elements, including a legal contract.
That legal contract is Twitter’s Terms of Service, and it contains some specific language relevant to this discussion:
You may use the Services only if you can form a binding contract with Twitter and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so.
This appears to be an effort on Twitter’s part to make clear—among other things—that its Terms of Service contract is invalid to the extent the user happens to be a terrorist. This could enable Twitter to argue in some instances that it didn’t provide service “knowingly.” For present purposes, however, the relevant point is that the company’s use of the words “receiving services” and its repeated references to service provision throughout the document is fully consistent with Roberts’ interpretation of precisely what the statute forbids.
Finally, and perhaps most importantly, the Court upheld the statute against First Amendment challenge, and specifically upheld the statute as, among other things, a prohibition of certain speech. The question, Roberts wrote starkly, is “whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.”:
Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ non-violent ends.
The Court took this view even if the modality of that material support was activity that would otherwise be protected speech—much to the dismay of Justices Breyer, Ginsburg, and Sotomayor in dissent.
“This is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny,” Roberts wrote, in perhaps the only sentence in the entire opinion that might give Twitter succor. “We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, § 2339B does not violate the freedom of speech.”
To summarize, then, Twitter is facing a daunting landscape here on a number of fronts:
- There is little question that the company is providing “services” within the meaning of the statute;
- There is little question that those services are going to DFTOs;
- Given the open posture of many of the organizations receiving these services and their public designations as DFTOs, it will be difficult for Twitter to argue that it lacks knowledge that it is providing services to DFTOs, though uncertainty about account authenticity may raise serious questions as to the “knowingly” element;
- The Supreme Court has held that the statute requires no mental state higher than knowledge;
- The Supreme Court has also said that even if the statute may have vagueness issues at the margins, it is enforceable at its core where it’s perfectly clear what it prohibits; and
- The Supreme Court has held that the statute is constitutional even to the extent that it prohibits material support in the form of otherwise constitutionally-protected speech.
We are not the first observers to notice that Twitter may have a problem on its hands on this score. Commentators from both the left and the right have raised the issue before. As early as 2011, the Israeli legal group, Shurat HaDin sent a letter to Twitter warning the company it could be in violation of the material support statute for allowing organizations like Hezbollah to maintain Twitter accounts. More recently, Christians United for Israel has started a campaign with a petition asking Twitter and the U.S. Attorney’s Office in San Francisco to ban Hamas from Twitter, noting that “Twitter is currently providing Hamas terrorists with an important ‘service’ and with powerful ‘communications equipment’ that are crucial to furthering its primary terrorist objectives.”
On the other side of the political spectrum, the ACLU’s Gabe Rottman noted in a blog post on the group’s web site that it should “frighten the daylights out of all of us” that there is even a credible argument that Twitter could be guilty of providing material support to terrorist organizations. “The fact that the plain language of the statute could even conceivably reach Twitter in this context shows why the law is arguably the most dangerous speech restriction on the books today,” he wrote.
Rottman, however, did offer two possible readings that could limit Humanitarian Law Project and thus save Twitter from possible criminal exposure. First, he noted that the Court in that case reasoned that the statutory definition of “service” “requires something done at the command of another.” Rottman argued that there’s a credible argument that Twitter has not met this standard:
[I]n the context of providing “communications equipment,” one could argue that the “service” has to be something like renting a satellite phone (not passively providing data and hosting services). For de facto common carriers like Twitter, open to all, the provision of service is not “coordinated” in the way the Court seems to argue is necessary, and it certainly does not suggest “support” in the sense of concerted activity in furtherance of the goals of the designated terrorist organization.
Second, Rottman seized on the Court’s language limiting the Humanitarian Law Project holding to the facts before it and argued that “providing a Twitter feed (or a Facebook page or a Google link) should be totally immunized from criminal liability.” His post touches on some of the policy arguments behind this view: “Say what you will about Hamas, but I don’t think it benefits American public discourse to censor their Twitter feed, nor do I think merely providing Hamas with an outlet furthers their organizational goals.” But it does not lay out a legal argument supporting this proposition or a doctrinal basis for it.
Similarly, David Cole, who argued the Humanitarian Law Project case on the side of the NGO plaintiffs, also worries that—his having lost that case—there might be a valid claim that Twitter is violating the material support law too. Christians United for Israel, he writes, “may have a point. The ‘material support’ law is written so broadly that it makes virtually anything one does to or for a designated group a crime, even if it has no link to terrorist activity of any kind.”
His argument against this result, however, is directed not at the courts, but at Congress, which he encourages to “amend the ‘material support’ law to limit its draconian reach.” As it’s written, he postulates, why would the law even stop with Twitter?
What about Google, Facebook, or Verizon, all of which have almost certainly provided their “services,” in the form of google searches, social networking, and phone and email access, to Hamas or its members. For that matter, what about Pepsi and Coca-Cola, who have surely sold soda bottles to Hamas in the Gaza Strip? What about ExxonMobil and Shell Oil, whose gas has very likely powered Hamas vehicles? And what about public radio and CNN, whose news services are available around the world, including in Gaza?
We think there’s an easy answer to this particular set of questions—the mens rea requirement of the material support statute—but that’s a distinction that may leave Twitter on the wrong side of the line.
In our final post in this series, we’ll examine Twitter’s possible defenses in greater depth—and look specifically at the question of whether the material support law is constitutional to the extent it prohibits Twitter from letting Hamas tweet cat videos.