Could this be a game changer for cyber warfare?
Twitter Inc. is facing a civil suit brought by the widow of an American defense contractor that was killed by actors of the Islamic State in Jordan. Tamara Fields, wife of Lloyd “Carl” Fields, 46, alleges that Twitter knowingly allowed the Islamic State (ISIS) to use the social network to spread its propaganda and expand its membership.
The civil complaint filed last week alleges Twitter enabled ISIS to carry out acts of international terrorism such as the attack that left Fields’ husband dead in Jordan. A resident of Cape Coral, Florida, Carl Fields and one other American were shot by a Jordanian police captain on November 9, 2015 in an ISIS-inspired attack.
“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 complaint was filed in the U.S. District Court for the Northern District of California. In summary, the filing alleges the following of the San Francisco-based social media company:
- Twitter “knowingly permitted the terrorist group ISIS to use its social network as a tool for spreading extremist propaganda, raising funds, and attracting new recruits” for years.
- Twitter “refused to take meaningful action,” despite “both the U.S. government and the public at large [having urged] Twitter to stop providing its services to terrorists.”
- Twitter’s provision of “material support to ISIS was a proximate cause” of Carl Fields’ injuries and subsequent death.
Twitter believes the complaint has no legitimacy, saying, “While we believe the lawsuit is without merit, we are deeply saddened to hear of this family’s terrible loss … Violent threats and the promotion of terrorism deserve no place on Twitter and, like other social networks, our rules make that clear. 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.”
Fields’ allegations against Twitter hinge upon two passages in the federal Anti-terrorism Act that she and her attorney believe Twitter has violated. One (18 U.S. Code § 2333) states that victims of international terrorism have a private civil cause of action or, in other words, that they have a right to sue and that they “shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”
While Fields falls under the above category as plaintiff in the statute, the statute says nothing about who the suit can be filed against. Does Twitter fit the bill?
Attorney Benjamin Wittes says it wold be unlikely. The answer depends upon how one defines “international terrorism.” Wittes and Zoe Bedell explain:
“International terrorism is defined in § 2331 as activities that (1) involve violent acts or acts dangerous to human life that violate criminal law, (2) appear to be intended to intimidate civilian population or influence government policy through threats, and (3) occur primarily outside the US or otherwise “transcend national boundaries.” Given that Twitter is running a social media platform, an activity that is neither violent or illegal, it seems as if a plaintiff would be unable to satisfy even the first prong of this definition of terrorism.”
Twitter certainly didn’t commit violent or dangerous acts themselves. However, an issue still remains in the second statute this case hinges upon concerns material support.
There have been several cases involving defendants similar to Twitter where the jury regarded the terrorism (as defined in § 2331) as something that may not only be performed by the terrorizers themselves, but by those that materially supported them. Providing material support to terroristic acts is a federal offense according to 18 U.S. Code §§ 2339A and 2339B. Last year, Jordan’s Arab Bank was found liable by a New York jury for transferring money to family members of Hamas terrorists even though, like those of Twitter, its actions were not violent or illegal actions in themselves.
As stated earlier, one of the allegations was that Twitter provided “material support” to ISIS. That material support, the complaint says, was a proximate cause of Carl Fields’ death.
Though chances of the plaintiff prevailing are slim, the material support clauses, Wittes says, are where Twitter could face a problem.
“The plaintiff … has alleged that Twitter has violated 18 U.S.§§ Code 2339A and 2339B. Section § 2339A makes it a crime to ‘provide material support or resources … knowing or intending that they are to be used in preparation for, or carrying out’ a terrorist attack (or one of the listed crimes); 18 U.S.§ Code 2339B prohibits the provision of material support to foreign terrorist organizations. The term material support includes both equipment and other tangible and intangible property and services, including financial services. And the plaintiff here alleges that ISIS uses Twitter to fund terrorism.”
The court would, therefore, have to find that providing ISIS with communication services and a platform to raise money constitutes terrorism as defined by the first portion § 2331. If done, only then would Twitter be considered an eligible defendant.
If the case goes to trial, the second portion of § 2331 (intent) will likely be the highest hurdle for the plaintiff to clear. Proving that Twitter intended or knowingly permitted ISIS to plan, fundraise for, or carry out the specific attack that killed Carl Fields in Jordan would be a tremendous feat.
Gary M. Osen, a terror financing litigator? that convinced the New York jury to hold Arab Bank accountable for processing transactions to clients with ties to Hamas said there is “no question” the federal Anti-Terrorism act applies to Fields’ situation. Providing “knowledge or willful blindness,” however, will be difficult.
If the case survives a motion to dismiss, it is sure to open up a civil can of worms.
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