This Report summarizes cases granted review on October 3, 2022
Case Granted Review: Twitter, Inc. v. Taamneh, 21-1496
Twitter, Inc. v. Taamneh, 21-1496. The Anti-Terrorism Act (ATA), 18 U.S.C. §2333(d)(2), allows U.S. nationals injured by an act of international terrorism to recover treble damages from any person who “aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” In a case in which the Court granted Twitter’s conditional cert petition after granting certiorari in Gonzalez v. Google (discussed above), the questions presented are: (1) whether a defendant that provides “generic, widely available services” knowingly provided substantial assistance for acts of international terrorism because it “allegedly could have taken more ‘meaningful’ or ‘aggressive’ action to prevent such use,” and (2) whether such a defendant could be liable under the ATA when its services were not used in connection with the specific act of international terrorism that injured the plaintiff.
In 2017, allegedly at the direction of ISIS, a man shot and killed 39 people at a nightclub in Istanbul, Turkey. Relatives of one of the victims sued Twitter, Google, and Facebook under the ATA, alleging they aided and abetted ISIS. Plaintiffs alleged that Defendants were a critical part of ISIS’s growth, allowing it to recruit members, issue terrorist threats, and spread propaganda. But Plaintiffs did not allege that ISIS had used Defendants’ services in planning or executing this particular attack, or that the gunman had used their services at all. The complaint acknowledged that Defendants had policies prohibiting the use of their platforms for promoting terrorism but alleged that Defendants generally only reviewed ISIS’s use of its services in response to third-party complaints and did not proactively remove tweets and accounts. The district court dismissed for failure to state a claim, but the Ninth Circuit reversed. 2 F.4th 871.
The Ninth Circuit applied the three-element framework from Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), in assessing the aiding-and-abetting claim, as Congress had specifically instructed. That test requires that: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must “knowingly and substantially” assist the principal violation. The Ninth Circuit first determined that “the party” from the first element was ISIS rather than the individual gunman, and that therefore the complaint sufficiently alleged element one. In the same vein, the Ninth Circuit concluded that the “principal violation” could refer to ISIS’s more general campaign of terror rather than the specific attack that caused injury. The Ninth Circuit then concluded that the allegations that Defendants were generally aware that ISIS used its platforms to recruit, raise funds, and spread propaganda, and that it did not take proactive, aggressive measures to restrict ISIS-related content, showed that element two was also met. For the same reason, the Ninth Circuit concluded that Defendants “knowingly” assisted the principal violation, leaving only whether they “substantially” assisted, which involved another multiple-factor test from Halberstam. Ultimately, the Ninth Circuit concluded that two factors—that the provided services were allegedly central to ISIS’s growth and were provided over a relatively lengthy period—outweighed the countervailing factors that Defendants did not intend to assist ISIS; they in fact took some efforts to prevent ISIS’s exploitation of their services; and they had at most an arms-length transactional relationship with ISIS.
Petitioners (Defendants) argue that providing generic, widely available services that were used by terrorists, despite Defendants’ efforts to prevent such use, cannot establish “knowing” assistance for purposes of ATA liability. They point out that there were no allegations of any specific accounts or posts on its platforms that Defendants knew were ISIS-related yet failed to remove, and no allegations of affirmative, specific support by Defendants of ISIS-related activities. Defendants also argue that failure to prevent abuse of their services could not support a “knowingly” element. They further rely on circuit courts in non-ATA contexts holding that when allegations involve routine business transactions, there must be stronger evidence of complicity for aiding-and-abetting liability. Defendants add that to support ATA liability, plaintiffs must allege aiding and abetting the particular terrorist act that causes injury, rather than, as the Ninth Circuit held, a terrorism campaign or enterprise. In support, they cite the statute’s repeated reference to liability for “an act of international terrorism,” reasoning that use of the singular allowed liability only when a defendant assists a specific crime.