Removing Terrorist Content Isn't Helping Win The War On Terror

from the misguided-efforts dept

The terrorists are winning.

This shouldn't come as a surprise. The War on Drugs hasn't made a dent in drug distribution. Why should the War on Terror be any different? Two decades and several billion dollars later, what do we have to show for it? Just plenty of enemies foreign and domestic.

While politicians rail against "terrorist content," encryption, and the right for people to remain generally unmolested by their governments, they're leaning hard on social media platforms to eradicate this content ASAP.

And social media companies are doing all they can. Moderation is hard. It's impossible when you're serving millions of users at once. Nonetheless, the content goes down. Some of it is actual "terrorist content." Some of it is journalism. Some of it is stuff no one would consider terroristic. But it all goes down because time is of the essence and the world is watching.

But to what end? As was noted here all the way back in 2017, efforts made to take down "terrorist content" resulted in the removal of evidence of war crimes. Not much has changed since then. This unfortunate side effect was spotted again in 2019. Target all the terrorist content you want, but destroying it destroys evidence that could be used to identify, track, and, ultimately, prosecute terrorists.

Sure, there's some concern that unmoderated terrorist content contains the inherent power to radicalize internet randos. It's a valid concern but it might be outweighed by the positives of keeping the content live. To go further, it might be a net gain for society if terrorist content was accessible and easily-shared. This seems counterintuitive, but there's a growing body of research showing terrorists + internet use = thwarted terrorist plots.

Call me crazy, but this sounds like a better deal for the world's population than dozens of surveillance agencies slurping up everything that isn't nailed down by statute. This comes from Joe Whittaker at Lawfare, who summarizes research suggesting swift removal of "terrorist content" isn't helping win the War on Terror.

In my sample, the success of an attempted terrorist event—defined as conducting an attack (regardless of fatalities), traveling to the caliphate, or materially supporting others actor by providing funds or otherwise assisting their event—is negatively correlated with a range of different internet behaviors, including interacting with co-ideologues and planning their eventual activity. Furthermore, those who used the internet were also significantly more likely to be known to the security services prior to their event or arrest. There is support for this within the literature; researchers at START found that U.S.-based extremists who were active on social media had lower chances of success than those who were not. Similarly, research on U.K.-based lone actors by Paul Gill and Emily Corner found that individuals who used the internet to plan their actions were significantly less likely to kill or injure a target. Despite the operational affordances that the internet can offer, terrorist actors often inadvertently telegraph their intentions to law enforcement. Take Heather Coffman, whose Facebook profile picture of an image of armed men with the text “VIRTUES OF THE MUJIHADEEN” alerted the FBI, which deployed an undercover agent and eventually led to her arrest.

Correlation isn't causation but there's something to be said about visibility. This has been a noticeable problem ever since some law enforcement-adjacent grandstanders started nailing every online service with personal ads to the judicial wall for supposedly facilitating sex trafficking. Ads were pulled. Services were halted. And sex traffickers became increasingly difficult to track down.

As this research notes, radicalization might occur faster with heavier social media use. But this isn't necessarily a bad thing. Greater visibility means easier tracking and better prevention.

Out in the open also means encryption isn't nearly as much of an issue. Terrorist organizations appear to be voluntarily moving away from open platforms, sacrificing expeditious radicalization for privacy and security. But even that doesn't appear to pose nearly as much of a problem as politicians and law enforcement officials suggest.

When looking at the Islamic State cohort in the United States, unlike other online behaviors, there is not a significant relationship between the use of end-to-end encryption and event success. Terrorists who used it were just as likely to be successful as those who did not.

Unfortunately, there are no easy answers here. While driving terrorists underground results in limited visibility for those seeking to thwart their plans, allowing them to take full advantage of open platforms increases the number of possible terrorists law enforcement must keep an eye on.

The downsides of aggressive moderation, however, are clear. Visibility decreases as the possibility for over-moderation increases. Evidence needed for investigations and prosecutions vanishes into the ether over the deafening roar of calls to "do more."

Filed Under: content moderation, content removals, open source intelligence, terrorism, terrorist content

What Will Happen When Governments Disagree Over Who Is A Terrorist Organization... And Who Needs To Be Blocked Online?

from the a-big-mess dept

You may have heard the recent news that President Trump has decided to label the the Islamic Revolutionary Guards Corps (IRGC) a "foreign terrorist organization." The IRGC is Iran's powerful military/security/law enforcement apparatus -- that also owns a ton of businesses. As the White House itself admits, this is the first time a foreign government agency has been referred to as a foreign terrorist organization. This is big news in a huge variety of ways -- in large part because it could end up criminalizing lots of people and businesses who unwittingly do business with the IRGC including (checks notes) a firm called The Trump Organization.

But, leaving that aside, it raises some other issues as well. We've been talking about the impact of the terrible EU Terrorist Content Regulation that the EU Parliament will soon be voting on. But, as we've discussed in the past, there are lots of questions about who decides just what is "terrorist" content. Daphne Keller tweeted about the IRGC decision, wondering what happens when one country's laws demand the removal of content from another country's government and suggests (accurately) this is going to lead to a huge mess.

Of course, it also gets even more complex than that. On a recent On The Media episode, they discussed efforts by a few different websites to archive terrorist propaganda, both to learn about what's happening (in the form of open source intelligence), but also for the purpose of historical records. As the piece notes, many researchers and reporters find those archives to be incredibly valuable. And yet, they're dealing with issues of demands for the content to be taken down as "terrorist content."

This is not a new issue. For years, we've pointed out how demands to delete "terrorist content" online has regularly resulted in the silencing of human rights groups documenting war crimes.

Combine all of this together and we're creating a recipe for disaster. The EU is demanding that all "terrorist content" be deleted with one hour's notice. The US is designating government organizations as terrorist groups. And human rights groups trying to document war crimes are being kicked off the internet. None of this seems like a good way to actually fight terrorism. It really seems like a solution designed to pretend that terrorists can be swept under the rug, like if we don't know what they're doing out there, they'll just magically disappear.

Filed Under: donald trump, eu, foreign terrorist organization, iran, irgc, terrorism, terrorism designation, terrorist content, terrorist content regulation

Latest Garbage Twitter/Terrorism Lawsuit Is The Stupidest Twitter/Terrorism Lawsuit

from the keep-your-receipts,-plaintiffs dept

Because there's no shortage of people willing to pay money for the thrill ride that is losing a lawsuit in federal court, 1-800-LAW-FIRM and Excolo Law remain viable entities. The lawsuits they bring aren't viable, but presumably retainers have been collected before the inevitable process of dismissal-appeal-dismissal begins.

These two firms are behind most of the lawsuits we've covered featuring plaintiffs attempting to hold a number of social media platforms responsible for acts of terrorism. The underlying events are tragic, but these lawsuits aren't the answer. They're ridiculous. Despite not having racked up a win at any level of the court system, the lawsuits continue to be filed. This doesn't reflect well on the law firms specializing in taking money from victims of terrorist attacks while offering them false hope of closure, if not actual compensation.

The latest lawsuit filed by these firms is only novel in the respect that it features a Dallas transit officer as a plaintiff, rather than someone from the private sector. Retana was wounded in the ambush of Dallas law enforcement officers back in 2016. This is where the Twitter+terrorists boilerplate -- which fills most of the lawsuit's 96 pages [PDF] -- gets really weird. (h/t Eric Goldman)

To get around the obvious Section 230 roadblock, these lawsuits invoke the US Anti-Terrorism Act (ATA). The filings tend to spend numerous pages detailing the history of whatever terrorist organization is relevant to the case, followed by a bunch of screenshots of supposed members of these groups utilizing Twitter, Facebook, et al. With this, the plaintiffs hope to convince a judge that the mere existence of terrorists on social media networks is "material support for terrorism" -- a violation of multiple anti-terrorism laws.

So far, this hasn't worked. Courts have found social media companies are not directly or indirectly responsible for terrorist acts. This lawsuit deploys the same tactic, spending a great deal of time discussing terrorist organization Hamas. After 77 pages discussing Hamas and its use of social media, the lawsuit tries to tie anti-terrorism laws to social media companies and the Dallas shooter with this single, conclusory (in the legal sense, not the literal sense) sentence.

Micah Johnson was radicalized, in part, by these organizations calling for the murders of police officers.

The suit then spends another several pages stating that the shooter's "liking" of certain social media pages and accounts calling for police officers to be killed is evidence of his radicalization by Hamas. Why? Well, apparently it's because some of these online groups have also expressed support for Hamas.

There's no solid connective tissue in this lawsuit. There are a bunch of inferences, but they're spectacularly weak. Nothing prior to this paragraph makes any explicit connection between the shooter's actions and the terrorist organization the lawsuit needs to convert a clear Section 230 case into an ATA case. Here's the law firms' embarrassing attempt to tie this unrelated mess together.

Micah Johnson was radicalized by HAMAS’ use of social media. This was the stated goal of HAMAS. Johnson then carried out the deadly attacks in Dallas. Conducting terrorist acts in the United States via radicalized individuals is a stated goal of HAMAS.

This follow-up is particularly bold, considering the lawsuit cannot make a strong case for this sentence, much less lawsuit itself.

But for HAMAS’ postings using Defendants’ social media platforms, Johnson would not have engaged in his attack on the Dallas Police.

That's an argument no one has made -- not even those who investigated the shooter and the shooting. Here's what the shooter himself had to say about his motivations:

The suspect said he was upset about Black Lives Matter. He said he was upset about the recent police shootings. The suspect said he was upset at white people. The suspect stated he wanted to kill white people, especially white officers. ...The suspect stated that he was not affiliated with any groups, and he did this alone.

If you don't consider the shooter to be a credible source, here's the conclusions law enforcement investigators arrived at:

Two law enforcement officials told NPR's Dina Temple-Raston that they believe the suspect had been planning an attack for some time and acted on his own. They added that they have not identified a connection between the suspect and any international terrorism or domestic extremist groups.

The shooter left behind a "manifesto." Nothing in it declared any support for any terrorist groups. It spoke only of groups like Black Lives Matter and an urge to kill police officers for killing black Americans.

This makes the extraordinarily weak lawsuit even weaker. The law firms' reliance on a "material support for terrorism" theory has yet to find a judge willing to grant these arguments any credence. This one manages to be even worse than the weak lawsuits they've filed to this point. They can't even show a credible connection between the gunman and a terrorist group, much less how this is all social media's fault. Until the law firms manage to somehow top this, this is the bottom of the law firms' barrel of barrel-bottom scrapings.

Filed Under: cda 230, intermediary liability, material support for terrorism, section 230, terrorism
Companies: 1800 law firm, excolo law, twitter

Judge Recommends Vacating The Sentence Of One Of The FBI's Handcrafted Terrorists

from the well...-half-the-sentence-has-already-been-served-so... dept

Nearly 13 years after the FBI managed to turn a California cherry picker into a international terrorist, one of its self-created terrorists is about to be turned back into regular California resident, albeit one missing more than a decade from his life.

Hayat went to Pakistan in 2003 to visit his mother and get married. The FBI and prosecutors insisted he went there to train to be a terrorist. When he returned to the US, he was arrested and indicted. Prosecutors tacked on some lying to federal agents charges because of course they did, pushing Hayat's sentence to 24 years.

This conviction was upheld by the Ninth Circuit Court of Appeals but Hayat's motion to vacate his sentence has found some sympathy from a federal magistrate judge.

A federal magistrate on Friday recommended overturning the controversial 2006 conviction of a California man accused of attending a terrorist training camp in Pakistan and plotting an attack in the United States.

Hamid Hayat, now 36, who was then a young cherry-picker from Lodi, has served about half his 24-year sentence.

But U.S. Magistrate Judge Deborah Barnes said he likely never would have been convicted were it not for the inexperience of his defense attorney, who failed to call alibi witnesses.

Hayat's lawyer was clearly inexperienced, having never defended a client during a criminal trial before. The results speak for themselves. Judge Barnes' examination of the case shows Hayat was possibly coerced into a false confession and had a decent alibi for his visit to Pakistan that -- if explored more fully -- would likely have shown the FBI's speculations about his reason for returning to Pakistan were wrong.

His attorneys argue that much of the evidence used against him was faulty, including prosecution claims that Hayat attended a terror training camp in Balakot, Pakistan, in 2003 and 2004 – a facility they say had been shut down before Hayat even got to Pakistan.

Hayat's confession was obtained during a "marathon" questioning session by FBI agents. This apparently included a special agent lying about the evidence the FBI had on Hayat's supposed terrorist training.

According to court testimony, the Hayats were interviewed twice by the FBI. The first time, they both denied they knew anything about terrorism. But during a second interview at Sacramento FBI headquarters, after many hours of grilling without a lawyer, Hamid Hayat changed his story and confessed he attended a terrorist training camp for about three months. The jury asked for a read-back of FBI Special Agent Harry Sweeney’s trial testimony.

Sweeney testified that Hamid Hayat admitted to going to the camp after Sweeney asked him, “Would there be any reason why we would have a satellite image of you at a camp in 2003?”

Under cross-examination, Sweeney acknowledged there was no such photo.

Unfortunately, there's nothing illegal about federal agents lying to suspects during questioning. But there's certainly a law against lying to federal agents. The background of the case suggests the FBI may have been looking for something -- anything -- to justify its infiltration of a local mosque by one its surprisingly-expensive informants.

Naseem Khan claimed to have seen four of the world's most-wanted terrorists in Lodi, California. Over the course of three years, the FBI paid Khan $230,000 to infiltrate a local mosque, despite discovering his claims of seeing top world terrorists were completely false. It was Khan who suggested Hayat visit a terrorist training camp while visiting Pakistan. The government apparently had no evidence Hayat ever visited a training camp, relying almost solely on a confession that appears to have been coerced.

The court says there's not much here that makes the FBI look like a competent anti-terrorism force. There's a questionable confession, an even more questionable informant telling people to engage in terrorist activities, and a bunch of speculation about Hayat's activities while not under direct surveillance. As the judge points out, citizens shouldn't be locked up for things the FBI THINKS they may have done. More evidence is needed and a more competent attorney might have been able to stop this farce before it took more than a decade away from Hamid Hayat.

Filed Under: 9th circuit, doj, fake terrorists, false confession, fbi, hamid hayat, harry sweeney, own plot, terrorism

FBI Swept Up Info About Aaron Swartz While Pursuing An Al-Qaeda Investigation

from the stocking-the-back-room-for-a-rainy-day-of-searches dept

The FBI has the power to collect massive amounts of data and communications during its investigations. This power periodically ingests NATSEC steroids, pumping the FBI's data stores full of stuff not relevant to the NSA's work, but possibly relevant to the FBI's crime-fighting duties.

You would think the FBI would toss anything not relevant to an investigation. Just in terms of storage and haystack-sorting, it would only make sense to discard data/communications not needed for ongoing investigations. But you'd be wrong. The FBI holds on to everything it gets because you never know: the irrelevancies you hoovered up yesterday might be useful today.

That's pretty much what happened to Aaron Swartz, according to documents published by Dell Cameron of Gizmodo.

Nearly two years before the U.S. government’s first known inquiry into the activities of Reddit co-founder and famed digital activist Aaron Swartz, the FBI swept up his email data in a counterterrorism investigation that also ensnared students at an American university, according to a once-secret document first published by Gizmodo.

The email data belonging to Swartz, who was likely not the target of the counterterrorism investigation, was cataloged by the FBI and accessed more than a year later as it weighed potential charges against him for something wholly unrelated.

The data collected -- most likely obtained with an NSL -- came from Pittsburgh University. It was part of a data haul associated with the FBI's terrorism investigation. Swartz was never the target of this Al-Qaeda investigation but the information obtained remained in the FBI's data stores even though the FBI had no reason to hold onto non-hit data.

When the FBI did start looking in Swartz's activities, it found his email address in the stored data it had obtained from the university in 2007. This apparently happened in 2008, around the time the FBI was trying to determine if Swartz had violated any laws by freeing millions of court documents from PACER.

The FBI targeted a foreign terrorist entity but ended up with an untold amount of email metadata originating from US persons' accounts. The only reason we're seeing any evidence of the FBI's backdoor domestic searches come to light is Aaron Swartz's inadvertent involvement. If it hadn't been for a high-profile prosecution and Swartz's tragic suicide, public interest in the FBI's investigative activities surrounding Swartz would likely have minimal public interest. But Swartz's prosecution and death have put more eyes on the case, including those of transparency group Property of the People, which obtained this document through an FOIA lawsuit against the agency.

This document is more evidence the FBI abuses its investigative privileges. The agency engages in foreign-facing terrorism investigations, hoovering up as much "relevant" data as it can. Rather than discard everything not related to the investigation, the FBI stores it indefinitely. When the FBI opens a domestic investigation, it can give itself a head start by digging through its data stores for info it has "inadvertently" gathered on American citizens. The information the FBI already has on hand -- info it really can't justify keeping -- helps build cases against Americans while depriving them of their right to challenge the evidence against them. Americans don't know about this evidence because it's laundered by NSLs, warrants, and whatever else the FBI needs to deploy to duplicate the results of data store searches the agency has already performed.

Filed Under: aaron swartz, al qaeda, backdoor searches, fbi, foia, nsa, terrorism

Australian Government Passes Law Forcing Tech Companies To Break Encryption

from the nice-one,-idiots dept

The Australian Parliament has passed a law ordaining compelled access to encrypted devices and communications. The legislation was floated months ago and opened up for comment, but it appears the Australian government has ignored the numerous complaints that such a law would violate civil liberties and otherwise be an all-around bad idea. But that's OK. It's completely justified, according to the Prime Minister.

Scott Morrison, Australia’s prime minister, told local radio on Thursday that encryption laws were necessary to target Islamist terrorism, paedophile networks and organised crime. “These laws are used to catch the scum that try to bring our country down and we can’t give them a leave pass,” he said.

Sure, and if innocent people find their communications compromised by government-mandated holes, so be it. The law was rushed through Parliament in a late evening session since every moment wasted was just one more leave pass for scum. Legislators promise to review the law in 18 months to ensure it hasn't been abused or created more problems than it's solved, but let's be honest here: how often does legislation like this get clawed back after a periodic review? It's never happened in the history of the laws governing our surveillance programs, even after leaked docs exposed unconstitutional practices and widespread abuse of surveillance authorities.

Here's a short summary of the new powers the legislation hands over to law enforcement and national security agencies:

The law enables Australia’s attorney-general to order the likes of Apple, Facebook, and Whatsapp to build capability, such as software code, which enables police to access a particular device or service.

Companies may also have to provide the design specifications of their technology to police, facilitate access to a device or service, help authorities develop their own capabilities and conceal the fact that an agency has undertaken a covert operation.

This law will go into effect before the end of the year. How it will go into effect is anyone's guess. The law provides for compelled access -- including the creation of new code -- but no one seems to have any idea what this will look like in practice. The new backdoors-in-everything-but-name will be put in place by developers/manufacturers at the drop of a court order, with the onus on the smart people in the tech business to iron out all of the problems.

The law only prevents the government from demanding that "systemic weaknesses" be built into devices or programs. Everything else is left to the imagination, including the actual process of introducing code changes in multi-user platforms or targeted devices.

An actual software developer, Alfie John, has put together a splendid Twitter thread pointing out the flaws in the government's assumptions about software development. Since the compelled participants are forbidden from discussing surveillance court orders with anyone (which would include coworkers, supervisors, the general public, etc.), these requested alterations would have to be implemented in secret. The problem is coding changes go through a number of hands before they go live. Either everyone involved would need to be sworn to secrecy (which also means being threatened with jail time) or the process falls apart. Changes ordered by a court could be rejected by those higher up on the chain. Worse, the planned encryption hole could see the compelled coder being viewed as a data thief or foreign operative or whatever.

Law enforcement is going to have to make everyone involved in the product/device complicit and covered under the same prison threat for this to work. The more people its exposed to, the higher the chance of leakage. And if the code will break other code -- or the request simply can't be met due to any number of concerns -- the government make ask the court to hold the company and its personnel in contempt for their failure to achieve the impossible.

To make matters worse, the company targeted with a compelled access request may be monitored for leaks before and after the request is submitted, putting employees under surveillance simply because of their profession.

In some cases, the only weakness that can be introduced will be systemic, which will run contrary to the law. How will the government handle this inevitable eventuality? Will it respect the law or will it simply redefine the term to codify its unlawful actions?

Even if all of this somehow works flawlessly, users of devices and communications platforms will be put at risk. Sure, the compelled access might be targeted, but it will teach users to distrust software/firmware updates that may actually keep them safer. The government may even encourage the forging of credentials or security certificates to ensure its compelled exploits reach their targets. And just because these backdoors theoretically only allow one government agent in at a time, that doesn't mean they aren't backdoors. They may be slightly more difficult for malicious actors to exploit, but once the trust is shattered by compelled access, other attack vectors will present themselves.

It's a terrible law justified by the spoken equivalent of a bumper sticker. And it's going to end up doing serious damage -- not just in Australia, but all over the world. Bad legislation spreads like a communicable disease. If one democracy says this is acceptable, other free-world leaders will use its passage as a permission slip for encryption-targeting mandates of their own.

Filed Under: australia, backdoors, compelled access, encryption, moral panics, secrecy, software development, terrorism

Another Lawsuit And Another Loss For Plaintiffs Trying To Make Twitter Pay For Terrorism

from the redefining-'social-media-strategy' dept

This flow of especially pointless lawsuits doesn't appear be drying up -- fed mainly from the (revenue) streams maintained by 1-800-LAW-FIRM and Excolo Law. Neither does the flow of courtroom losses. These two firms are responsible for most of the lawsuits we've covered that attempt to hold social media companies responsible for international acts of terrorism.

The legal theory behind the suits is weak. Attempting to avoid Section 230 immunity, the suits posit that the presence of terrorists on social media platforms is a violation of various federal laws targeting terrorist organizations. Section 230 defenses have been raised by Twitter, Facebook, et al, but these usually aren't addressed by the courts because there's not enough in the terrorism law-related arguments to keep the suits alive.

According to Eric Goldman -- who has snagged the latest dismissal [PDF] -- this is the seventh time a federal court has tossed one of these suits. If you're familiar with the other cases we've covered, you know what's coming. The California federal court's decision quotes Ninth Circuit precedent from a similar lawsuit that said plaintiffs have to show a direct relationship between social media services' action and the act of terrorism prompting the lawsuit. In this case, the complaint fails to do so.

In Fields, the Ninth Circuit addressed what is meant by the phrase “by reason of an act of international terrorism.” It began by noting that the “‘by reason of’ language requires a showing of proximate causation.” Fields, 881 F.3d at 744. It rejected the plaintiffs’ contention that “proximate causation is established under the ADA when a defendant’s ‘acts were a substantial factor in the sequence of responsible causation,’ and the injury at issue ‘was reasonably foreseeable or anticipated as a natural consequence.’” Id. Instead, it held that, “to satisfy the ATA’s ‘by reason of’ requirement, a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant’s acts.”4 Id. (emphasis added).

And, although the facts of this case are a little different than the cited decision, the allegations in the plaintiff's lawsuit undermine its arguments about direct or proximal responsibility.

The instant case is somewhat different from Fields in that, here, Plaintiffs have made one allegation suggesting that Mr. Masharipov’s attack was in one way causally affected by ISIS’s presence on the social platforms. Specifically, Plaintiffs allege that Mr. Masharipov was “radicalized by ISIS’s use of social media.” FAC ¶ 493. However, this conclusory allegation is insufficient to support a plausible claim of proximate causation.

Plaintiffs do not allege that Mr. Masharipov ever saw any specific content on social media related to ISIS. Nor are there even any factual allegations that Mr. Masharipov maintained a Facebook, YouTube, and/or Twitter account. Furthermore, there are allegations in the complaint suggesting that there were other sources of radicalization for Mr. Masharipov. See, e.g., FAC ¶ 337 (alleging that Mr. Masharipov “had previously received military training with al-Qaeda in Afghanistan in 2011”); see also Iqbal, 556 U.S. at 678 (stating that, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief”’”). Finally, a direct relationship is highly questionable in light of allegations suggestive of intervening or superseding causes – in particular, Plaintiffs have alleged that, after becoming radicalized, Mr. Masharipov would have a “year-long communication and coordination [with] Islamic State emir Abu Shuhada” to carry out the Reina attack. FAC ¶ 334. Moreover, Plaintiffs fail to allege any clear or direct linkage between Defendants’ platforms and the Reina attack.

The allegations under another anti-terrorism law are no better. This argument posits the existence of terrorist-owned accounts is the same thing as providing support for terrorist acts or organizations. The court again finds the allegations don't approach the legal requirements for liability.

Here, Plaintiffs have failed to allege that Defendants played a major or integral part in ISIS’s terrorist attacks; for example, there are no allegations that ISIS has regularly used Defendants’ platforms to communicate in support of terrorist attacks. Also, for factor (4), i.e., the defendant’s relation to the principal wrongdoer, the Halberstam court indicated that a close relationship or a relationship where the defendant had a position of authority could weigh in favor of substantial assistance. Here, there is no real dispute that the relationship between Defendants and ISIS is an arms’-length one – a market relationship at best. Rather than providing targeted financial support,[...] Defendants provided routine services generally available to members of the public. As to factor (5), i.e., the defendant’s state of mind, the Halberstam court indicated that, where the defendant “showed he was one in spirit” with the principal wrongdoer, id., that could also weigh in favor of substantial assistance. Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) (noting that, “[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims”). But here there is no allegation that Defendants have any intent to further ISIS’s terrorism.

The entire suit -- including state claims for wrongful death and emotional distress -- are dismissed with prejudice. The only thing left for the plaintiffs to do is appeal, and this decision quotes generously from this jurisdiction's appellate decision in a similar case, which should hopefully deter them from wasting any more of the Ninth Circuit's time.

Filed Under: cda 230, intermediary liability, material support, section 230, terrorism
Companies: twitter

Federal Court Dumps Another Lawsuit Against Twitter For Contributing To Worldwide Terrorism

from the legal-definition-of-insanity dept

The lawsuits against social media companies brought by victims of terrorist attacks continue to pile up. So far, though, no one has racked up a win. Certain law firms (1-800-LAW-FIRM and Excolo Law) appear to be making a decent living filing lawsuits they'll never have a chance of winning, but it's not doing much for victims and their families.

The lawsuits attempt to route around Section 230 immunity by positing the existence of terrorists on social media platform is exactly the same thing as providing material support for terrorism. But this argument doesn't provide better legal footing. No matter what approach is taken, it's still plaintiffs seeking to hold social media companies directly responsible for violent acts committed by others.

Eric Goldman has written about another losing effort involving one of the major players in the Twitter terrorism lawsuit field, Excolo Law. Once again, the plaintiffs don't present any winning arguments. The California federal court doesn't even have to address Section 230 immunity to toss the case. The Anti-Terrorism Act allegations are bad enough to warrant dismissal.

Here's what the court has to say about the direct liability arguments:

The FAC [First Amended Complaint] plausibly alleges that ISIS used Twitter to reach new followers, raise funds, and incite violence. It also adequately alleges that Twitter knew ISIS-affiliated users were posting these communications, and that it made only minimal efforts to control them.

Nevertheless, the direct relationship link is missing. Most of the allegations are about ISIS's use of Twitter in general. The relatively few allegations involving Twitter that are specific to the attacks that killed plaintiffs' family members also provide little more than generic statements that some of alleged perpetrators of the attacks were "active" Twitter users who used the platform to follow "ISIS-affiliated Twitter accounts" and otherwise "communicate with others." Nothing in the FAC rises to the level of plausibly alleging that plaintiffs were injured "by reason of" Twitter's conduct. Consequently, the direct ATA claims are dismissed.

The indirect liability route doesn't fare any better:

The FAC does not allege that Twitter was "aware" that it was "assuming a role in" the terrorists' attacks in Europe. See id. It does not allege that Twitter encouraged ISIS to carry out these attacks or even knew about them before they occurred. At most, the FAC alleges that Twitter should have known ISIS was planning an attack and that it ignored the possible consequences of letting terrorists operate on its platform. That is in effect an allegation of recklessness, but JASTA [Justice Against Sponsors of Terrorism Act] requires more. Although plaintiffs are correct that Congress referred in its statement of findings and purpose to those who "knowingly or recklessly contribute material support or resources" to terrorists, JASTA § 2(a)(6) (emphasis added), the plain language of Section 2333 reaches only those "knowingly providing substantial assistance." 18 U.S.C. § 2333(d)(2). This clear statutory text controls.

There's no plausible conspiracy claim either. If this argument was given credence by the court, Twitter would be a co-conspirator in any criminal activity carried out by its users.

Nothing in the FAC establishes an agreement, express or otherwise, between Twitter and ISIS to commit terrorist attacks. Plaintiffs point to Twitter's terms of service that every user is subject to, but while that clearly is an "agreement," it is hardly relevant to a terrorist conspiracy. No other plausible agreement is mentioned in the FAC.

The plaintiffs are given one more chance to amend their complaint, but these are allegations that can't be massaged into victorious arguments. The problem that continues to be talked around in these lawsuits is that you cannot hold a social media platform responsible for the actions of its users. If the plaintiffs drop the ATA arguments, they're just going to run into Section 230 immunity. While the acts of terrorism were horrific and drastically affected the lives of the families of those killed, suing Twitter, Facebook, et al over these acts doesn't do anything for the plaintiffs but take time and money away from those who've already lost loved ones.

I'm not suggesting the law firms engaging in these lawsuits are lying to plaintiffs about their chances or encouraging futile litigation. I certainly would hope they aren't engaged in any of the above because that would mean they're preying on hurting people to earn income. But this steady stream of lawsuits -- much of it emanating from two law firms -- seems to suggest a level of intellectual dishonesty that's especially unseemly given the underlying circumstances.

Filed Under: blame, cda 230, intermediary liability, lawsuits, material support, social media, terrorism
Companies: excolo law, twitter

Once Again, Court Rejects Silly Claims That YouTube Provided Material Support For Terrorists

from the that's-not-how-this-works dept

For the past few years we've been covering a whole series of cases, most of them filed by (I'm not making this up) a silly law firm by the name of 1-800-Law-Firm, trying to argue that various big internet companies provided material support to ISIS or other terrorists, and therefore owe tons of money to surviving relatives of people killed by ISIS or other terrorist organizations. There have been lawsuits against Twitter, Facebook and Google/YouTube. So far, all of these lawsuits have failed miserably -- as they should.

Even if the plaintiffs could show that these platforms actively enabled terrorists to use their platform (which they do not, as all of them proactively look to remove terrorist related content), none of the cases makes an even half-hearted attempt to connect the (very unfortunate) deaths of their relatives to any actual content on these platforms. The lawsuits are basically "these bad people use Twitter/Facebook/YouTube, these people killed my relative, thus, those platforms owe me millions of dollars." That, of course, is not how the law works.

In the case filed against Google, it was filed by a relative of someone who was killed in the horrific Paris attacks a few years back. The court had already thrown out the case last year, but allowed a third amended complaint to be filed, which has now been rejected as well (hat tip to Eric Goldman for blogging about this as well).

As with every other such case, the court relied on CDA 230 in throwing it out last year, but the lawyers tried again with an amended complaint, and have failed again. The new complaint made the same four claims the earlier filing did, and added two more, insisting that CDA 230 does not apply to any of them. Once again, the court says the old claims are easily barred under CDA 230:

Claims one through four seek to impose liability on Google for knowingly permitting ISIS and its followers to post content on YouTube.... These claims still “inherently require[] the court to treat [Google] as the publisher or speaker of [third-party] content” because they “require recourse to that content to establish liability or implicate a defendant’s role . . . in publishing or excluding third party communications.” ... The [Third Amended Complaint] TAC alleges that Google “knowingly provided” its YouTube platform and other services to ISIS, and that ISIS “embraced and used” YouTube “as a powerful tool for terrorism,” allowing it “to connect its members and to facilitate [its] ability to communicate, recruit members, plan and carry out attacks, and strike fear in its enemies.”... It further alleges that Google “refuse[d] to actively identify ISIS YouTube accounts” or to make “substantial or sustained efforts to ensure that ISIS would not re-establish the accounts using new identifiers.” ... Claims one through four allege that Google violated the material support statutes by permitting ISIS and its supporters to publish harmful material on YouTube, and by failing to do enough to remove that content and the users responsible for posting the material. These claims target Google’s decisions whether to publish, withdraw, exclude, or alter content, which is “precisely the kind of activity for which section 230 was meant to provide immunity.” Roommates, 521 F.3d at 1170. “[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.” Id. at 1170-71. Claims one through four remain “inextricably bound up with the content of ISIS’s postings, since their allegations describe a theory of liability based on the ‘essential’ role that YouTube has played ‘in the rise of ISIS to become the most feared terrorist organization in the world.’” ...

In a contorted argument, Plaintiffs assert that they may rely upon third party content to support their claims without “running afoul of Section 230.”... Although they do not tie this theory to any particular claim in the TAC, it appears to be their response to the court’s determination that the claims in the SAC were “inextricably bound up with the content of ISIS’s postings.” ... Plaintiffs offer a lengthy discussion of In re Incretin-Based Therapies Products Liability Litigation, 721 Fed. Appx. 580, 583 (9th Cir. 2017). There, the Ninth Circuit reversed a trial court’s determination that certain discovery was irrelevant to whether federal law preempted the state law claims, where the discovery was relevant to the merits of the state law claims themselves. According to Plaintiffs, In re Incretin-Based Therapies supports their argument that “[e]vidence which would support” a finding that Google violated the ATA “is not the same as holding [Google] responsible for the content of third parties.” ... Plaintiffs’ argument is hard to follow and not persuasive. In re Incretin-Based Therapies does not address section 230(c)(1) or the ATA. Plaintiffs’ argument appears to be a variation on their previous contention that their claims are based upon “Google’s provision of the means for ISIS followers to self-publish content, rather than challenging the actual content itself.” ... The court rejected this argument, holding that Plaintiffs’ allegations in the SAC were inconsistent with their attempt to avoid section 230 immunity by “divorc[ing] ISIS’s offensive content from the ability to post such content.”... So too here. Plaintiffs do not allege that they have been harmed by the mere provision of the YouTube platform to ISIS and its followers. Instead, they allege that “ISIS uses YouTube as a tool and a weapon of terrorism,” and that ISIS recruits, plans, incites, instructs, threatens, and communicates its terror message on YouTube. ... Plaintiffs’ claims “are not premised solely on the theory that Google provided a publishing or communication platform to ISIS; they are further grounded in the allegation that Google failed to prevent ISIS from using YouTube to transmit its hateful message, which resulted in great harm.”....

In sum, the court concludes that Plaintiffs’ claims one through four seek to treat Google as the publisher or speaker of ISIS’s YouTube videos.

Then, there's an attempt to get around CDA 230 by saying that YouTube "recommends" ISIS videos (which it does not, but that's not the issue at this stage of the game). Like many others in the past, here the lawyers tried to use the Roommates.com ruling to argue around CDA 230. If you don't recall, in the Roommates case, the court rules that while most of Roommate's activities were protected by CDA 230, one part that was not protected was a pulldown menu allowing people to prefer certain races -- violating the Fair Housing Act. Since Roommates.com itself created the content in that pulldown, which violated the law, it was held liable for that content alone. Here, the lawyers tried to claim that YouTube recommending videos qualified for that kind of Roommates treatment. Except this is self-evidently wrong. Because Roommates only applied to content specifically created by the platform, while CDA 230 explicitly exempts editorial judgments by a platform. And recommending videos is clearly the latter, rather than the former:

Plaintiffs’ “new” theory fares no better this time around. The TAC does not contain any allegation that Google “materially contribut[ed]” in any way to the content of ISIS videos by promoting ISIS-related content. It does not allege that Google’s content recommendation features either created or developed ISIS content, or played any role at all in making ISIS’s terrorist videos objectionable or unlawful.

As Eric Goldman notes, the court does go on a really random tangent, talking about "neutral tools," which is completely meaningless here.

As for the new claims -- five and six -- the court is still unimpressed, more or less noting that this is just the lawyers trying to rephrase earlier, rejected claims:

Plaintiffs’ “new” concealment claim does little more than restate the material support claims in a slightly different form. All of those claims are barred by section 230(c)(1) as discussed above. Based on the allegations in the TAC, at its core, Plaintiffs’ concealment claim ultimately seeks to hold Google liable for allegedly failing to prevent ISIS and its supporters from using YouTube, and by failing to remove ISIS videos from YouTube. As with claims one through four, the concealment claim “requires recourse to that content” to establish any causal connection between Google permitting ISIS to use YouTube and the Paris attack. The claim thus “inherently requires the court to treat [Google] as the ‘publisher or speaker’” of ISIS content.

Claim six has similar problems:

As with claim five, Plaintiffs’ IEEPA claim is a restated version of their material support claims. It is based on the allegation that Google provided services to ISIS by permitting ISIS supporters to use the YouTube platform, including allowing supporters to post videos (“received property or interest in property of ISIS”) and utilize YouTube’s functions (including “downloading or copying videos”). This claim ultimately seeks to hold Google liable for failing to prevent ISIS and its supporters from using YouTube and failing to remove ISIS-related content from YouTube. As with the prior claims, the IEEPA claim “requires recourse to that content” to establish any causal connection between YouTube and the Paris attack, and “inherently requires the court to treat [Google] as the ‘publisher or speaker’” of ISIS content

The court also spends some time pointing out that there is no "proximate causation" between YouTube allowing ISIS to use the platform and the attacks in question (which is the key underlying point behind all of this outside of the CDA 230 issue). It points to the 9th Circuit ruling in another one of these cases, Fields v. Twitter, in which the court made it clear that just because some terrorists may have used a social network doesn't mean anyone killed by terrorists gets to sue social networks.

The court does allow for the lawyers to try one more time on one narrow issue. They had claimed that Google shared revenue with ISIS via its YouTube advertising program, which the court finds entirely unconvincing and dismisses -- but notes that since it gave the lawyers a chance to amend other complaints, but hadn't yet done so on the revenue sharing question, they could try again on that, though the court is clearly skeptical.

As Plaintiffs have already been given an opportunity to amend the complaint to avoid CDA immunity, all of their claims other than the revenue sharing claims are dismissed with prejudice. Since the court cannot conclude that further amendment of Plaintiffs’ revenue sharing claims would be futile, they are granted one final opportunity to amend those claims in a manner consistent with Rule 11.

Given that these lawyers have tried these arguments so many times, I'm guessing they won't be giving up just yet. But it seems like this case is destined for the same end result as all the others.

Filed Under: cda 230, intermediary liability, material support, reynaldo gonzalez, section 230, terrorism
Companies: facebook, google, twitter, youtube