What is the future of terrorists on social media?
Social media services such as Facebook and Twitter have been immune to lawsuits for incitement and the impact of terrorists using their services until now.
With Public Security Minister Gilad Erdan attacking social media more aggressively than ever and Facebook responding more directly than ever on Sunday – is that about to change big time? Maybe. But the road ahead is unclear and even with some new strategies, it will be like navigating a legal minefield of defenses that can insulate the platforms from any liability.
Until now it has been a bit quieter for Twitter in the legal sphere, certainly as compared to Facebook, and even more so compared to Facebook regarding terrorism in Israel.
Facebook has already been in the legal crosshairs, but Twitter less so.
On October 26, 20,000 Israelis, through the NGO Shurat Hadin, sued Facebook in New York state court alleging that the social media platform is intentionally disregarding the widespread incitement and calls for murder of Jews being posted on its Web pages by Palestinians.
A 76-page list of plaintiffs contended that “Facebook’s refusal to remove the flood of extremist videos, statements and cartoons is encouraging the terrorist attacks that have overwhelmed Israel in the past month,” demanding it self-monitor and block incitement against Israel.
The plaintiffs argue Facebook “utilizes sophisticated algorithms to serve personalized ads, monitor users’ activities and connect them to potential friends,” and that it “has the ability to monitor and block postings by terrorists urging violence.”
Shurat Hadin’s Facebook lawsuit always had an uphill battle, as Facebook has beaten a wide range of lawsuits (most not related to Israel) against it dating back to at least 2009, using the US Communications Decency Act of 1996 to insulate it as an interactive-computer-service provider from liability for speech by third-party users of its services.
The general rule is that publishers of content get to decide whether to publish content, so it is fair to hold them accountable for that content.
In contrast, Facebook’s unbeatable defense has been that both it and the online message boards that preceded it are just conduits without knowledge of what content is being posted.
It says this should also free them of liability for the posting and of responsibility to remove content, certainly at least until they has been informed by others of a violation of its rules.
Originally, Shurat Hadin hoped and still hopes that it can overcome this defense by arguing Facebook is a more dangerous tool for terrorists than was known in 1996 and that it has greater abilities to detect and remove terrorist content than it has admitted.
But this was only the beginning of lawyers analyzing how social media works and where it could be vulnerable to lawsuits to pressure it to cut-off terrorists from using their services.
At the beginning, the focus by advocates trying to fight anti-Israel terrorists’ use of social media was Facebook and not Twitter, for a few reasons.
First, Facebook is used more than Twitter for posting videos and for larger and longer posts, so the terrorist incitement on Facebook broke through into the public’s consciousness far more. Videos are less common on Twitter and posts are limited to 140 characters.
Observers have said this is particularly true in Israel and with the Palestinians where Facebook is used far more by the general public, and Twitter is used by a much smaller group of journalists and public officials.
While no study has been done, some believe that Facebook being the typical tool of average Israelis and Palestinians, as opposed to Twitter, is even more pronounced in this region than it is in the US where a greater number of average people use Twitter.
But then Tamara Fields, wife of a private American military contractor killed by a terrorist in Jordan in November; Reynaldo Gonzalez, father of Nohemi Gonzalez, who was murdered by ISIS terrorists in Paris in November; and Shurat Hadin made a discovery, or connected some new dots.
They asked: What if social media is not looked at merely as a general tool for incitement by posting videos? What if it is looked at as giving “material support” to terrorists under the US Anti-Terrorism Act?
Using this concept, if banks could be sued in the US merely for being conduits of terrorists’ funds, even without being involved in terrorism themselves, social media providers could be sued as conduits for transmitting messages, for using both Facebook and also Twitter to allow networking, recruiting and publishing newsletters from the Twitter accounts of Hamas and other terrorist groups.
Once this approach was taken, it was apparent that Twitter could be included as violating the US’s Anti-Terrorism Act and maybe both Twitter and Facebook could be beaten in court with the argument that defenses in the past under the Communications Decency Act were only meant to protect from general incitement lawsuits, not from more serious Anti-Terrorism Act terrorism claims.
Put differently, Shurat Hadin asked itself, if Hamas agents cannot open a bank account or physically enter the US because it is a terrorist group, why should it be able to use social media services of US-based companies such as Facebook and Twitter?
The first to sue was Fields in January in a US federal court in Northern California. Gonzalez sued on June 14, also in California.
Shurat Hadin plans to file its own Twitter lawsuit on behalf of the families of Taylor Force, the American tourist whom a Palestinian terrorist killed in Jaffa on March 8, and other victims.
The Anti-Terrorism Act idea may have a better chance of working to get around the Communications Decency Act which has insulated Facebook and Twitter from incitement lawsuits, especially because there has been a conceptual jump to view the social media platforms not merely as message boards for terrorists, but as providing concrete material logistical support.
On the other hand, there are a variety of debates going on in Israel, the US and elsewhere about passing legislation to hold Facebook and Twitter to a greater level of accountability.
The fact that they are only debates and have not yet led to new laws suggests that the Communications Decency Act may still be an absolute defense against lawsuits until a new law actually passes.
Moreover, whereas a bill sponsored by Justice Minister Ayelet Shaked and Public Security Minister Gilad Erdan targets the social media platforms and may have a real chance of passing, support for legislation in the US is nowhere near the level needed for anything big to happen anytime soon.
This means that the current lawsuits may raise public pressure on Facebook and Twitter, but even with their new approach, their chances of success are low without new legislation.