Material Support

Twitter Wins a Round on ISIS Immunity

By Benjamin Wittes
Thursday, August 11, 2016, 12:17 PM

Twitter won a first round yesterday on the question of whether CDA § 230 immunizes the company against civil lawsuits over its provision of service to terrorist groups. Here's the decision from Judge William Orrick of the U.S. District Court for the Northern District of California:

 

Zoe Bedell and I have covered this issue at great length in the past. And while I agree with Judge Orrick that this suit should be dismissed for reasons I explained here, I think dismissing it on the basis of § 230 is wrongheaded, for the reasons Zoe and I laid out in this post.

Rather than rehearsing the arguments again, I will simply point out that if the logic of this opinion is correct, then Twitter would also be immune from civil liability in the following hypothetical fact pattern:

Imagine that Twitter made an account available to ISIS leader Abu Bakr Al-Baghdadi fully aware of who he is and aware as well that that he planned to use the account to facilitate violent activity; imagine further that he then used his Twitter account to call by name for the assassinations of specific individuals; imagine that these individuals complained to Twitter that a designated foreign terrorist was using a Twitter account in violation of U.S. criminal law to call for their assassinations; and imagine that Twitter continued, under those circumstances, to offer service to Al-Baghdadi; imagine even that Twitter did all this out of sympathy with ISIS and with the specific intent that ISIS use Twitter accounts to commit acts of violence; imagine, finally, that someone then took Al-Baghdadi up on his charge and killed one or more of the named individuals. By the logic of this opinion, Twitter would be categorically immune from civil liability in such a situation (though it might be amenable to criminal prosecution for material support or conspiracy). 

I don't believe that is what CDA § 230 was ever intended to accomplish. I don't think anything about the text or history of the law compels such a reading. And if this is what CDA § 230 really means, then Congress needs to revisit its scope. 

(Full Dislosure: I own a modest quantity of Twitter stock.)

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