In one of the first cases of its kind, a Cape Coral, Fla. woman is suing Twitter for enabling an ISIS attack that killed her husband in November, but some legal experts believe she’ll have a hard road proving her case.
The woman, Tamara Fields, alleges that Twitter has for years provided an invaluable communication and recruiting tool for radical Islamic groups, and has on numerous occasions refused government requests to suspend terrorist accounts.
"Without Twitter, the explosive growth of ISIS over the last few years into the most-feared terrorist group in the world would not have been possible," the suit reads.
Fields’s husband, Lloyd "Carl" Fields, died during a "lone wolf" attack on a police training center in Jordan where he worked as a contract trainer for the U.S. government.
Fields and her attorney, Joshua Arisohn, claim Twitter violated the Anti-Terrorism Act, a federal statute that allows U.S. citizens to triple damages for injuries suffered from acts of international terrorism.
Seton Hall University School of Law professor Jonathan Hafetz says the Fields side will have to establish a solid connection between the social network and Fields's death.
". . . it faces both significant legal and factual obstacles, including extending the civil liability provisions of the Anti Terrorist Act to a social media company, and proving that Twitter should be held responsible for what it knew or plainly should have known," Hafetz said in an email to Fast Company.
That will be hard to do. For Fields's attorneys will have to overcome Section 230 of the Communications Decency Act of 1996 (CDA), a provision likely to be invoked by Twitter’s defense team. Section 230 says that intermediaries like Twitter can’t be held liable for the content created by their users.
Here’s the actual legal language: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (47 U.S.C. § 230).
CDA 230 chiefly protects Internet Service Providers (ISPs), but also a range of "interactive computer service providers," which the EFF says includes virtually any online service that publishes third-party content."
Greene explains that there are exceptions to CDA 230, such as violations of federal criminal statutes, of which the Anti-Terrorism Act is one.
The Fields complaint is indeed based on the Anti-Terrorism Act, which most agree is appropriate to the case. But in order to win, her attorneys will have to show that Twitter demonstrated "knowledge" of, or "willful blindness" to, usage of its platform by ISIS in connection with the attack."
We asked Fields’s lawyer, Joshua Arisohn, how he intends to overcome Section 230 of the CDA in court.
"The CDA is meant to give social media companies cover when their users commit libel," Arisohn said in an email to Fast Company. "But Congress did not intend to give companies like Twitter a get out of jail free card when they knowingly hand over powerful communications tools to designated terrorist organizations so that they can recruit, fundraise, and spread propaganda."
Arisohn told Reuters on Thursday that Twitter's activity was a substantial factor in Fields's husband's death, and that the death could have been foreseen. When asked if he intended to point to specific tweets used in connection with the training center attack that killed Fields, he replied this way:
"It was foreseeable that giving ISIS unfettered access to Twitter accounts would enable them to recruit, fundraise, and spread their propaganda and that this would lead to the deaths of innocent civilians."
No one's doubting that ISIS has made use of Twitter to spread propaganda, and worse. The FBI believes that ISIS routinely uses Twitter to "crowdsource" terror. That is, they use Twitter accounts to find would-be militants, especially ones from the West, who might prove their allegiance to the group by conducting an attack. The case revolves around the question of whether Twitter did that knowingly or in willful ignorance—and has done nothing to stop it.
Twitter understandably isn’t saying much on the record about the case right now. But part of the statement it released last week seems to directly address the lawsuit’s assertion that Twitter has done effectively nothing to stop ISIS from using the platform.
"We have teams around the world actively investigating reports of rule violations, identifying violating conduct, partnering with organizations countering extremist content online, and working with law enforcement entities when appropriate," the company said. Some Twitter employees have personally received death threats from ISIS members after shutting down their accounts.
With the rise of ISIS, Twitter finds itself trying to serve two masters — the First Amendment, and the desire to thwart violent groups on its platform. The balance Twitter is trying to strike has arguably tilted in the direction of security and away from the free speech side in recent months.
Last April the company updated its violent threats policy to prohibit "promot[ing] violence against others" in addition to the existing "direct, specific threats of violence against others." In December 2015 Twitter updated its terms of service to explicitly prohibit "hateful conduct."
The company says in its most recent Transparency Report that it’s received 52% more requests for account information affecting 78% more account holders during the first half of 2015 than in the previous half-year reporting period.
Twitter is more willing to share information with governments or law enforcement than it is to honor requests to turn off user accounts. It received 25 shut-off requests from U.S. government and law enforcement during the first half of 2015, and acted on none of them.
Twitter prefers to police suspect accounts, and suspend them, on its own. And its been doing quite a lot of that. According to a Brookings Institution study, Twitter began shutting down large numbers of accounts by September 2014. Between April 2014 and early January 2015, Twitter shut down 790 accounts of suspected ISIS supporters. Twitter told the New York Times that it shut down 10,000 accounts on April 2, 2015 for tweeting violent threats.
The Fields case represents the first time that Twitter has been sued for not doing enough to stop ISIS activity, and it's likely to marshall all its resources to defend itself in the case. A plaintiff win, after all, or even an out-of-court settlement, might set a troubling precedent. If the Fields side wins with the evidence it says it will present, a plaintiff's victory could mean that virtually anyone harmed in an incident caused by Twitter-using terrorists could go after Twitter in court.
Seton Hall’s Hafetz says that whenever the legal system tries to police a means of communication, there’s a risk that its actions could have a "chilling effect" on legitimate speech.
Indeed, a Fields win could move the limits of what we know as free speech on social networks. That would affect millions of users, not just the people and institutions named in this lawsuit.
On the first day of the trial, Twitter's attorneys are likely to ask the judge to throw out the case based on Section 230 of the CDA alone. That alone might be enough.