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April 7 — Twitter Inc. can't be held liable for a claim that it provided material support to terrorism by allowing third parties to transmit extremist material through its platform, the social network argued April 6 in a court filing.
Twitter's direct-messaging tool—which allegedly enables terrorists to communicate privately with one another—doesn't defeat the social network's federal online publisher immunity, it said.
Section 230 of the Communications Decency Act, 47 U.S.C. § 230, protects online publishers against liability for content produced by others, as long as they are performing traditional publisher functions and aren't content providers themselves.
Plaintiff Tamara Fields alleged that Twitter knowingly allows the Islamic State group—known commonly as ISIS—to use its social network to spread propaganda, raise funds and recruit fighters . Fields, whose husband was killed in the Nov. 9, 2015 terrorist attack in Amman, Jordan, alleged that Twitter's provision of services to ISIS constitute material support to terrorism in violation of the Anti-Terrorism Act, 18 U.S.C. § 2331.
Fields alleged that ISIS has been known to use Twitter’s direct messaging capabilities for fundraising and operational purposes, which allows them to send and receive messages to one another “without ever issuing a single tweet.”
“Giving ISIS the capability to send and receive Direct Messages in this manner is no different to handing it a satellite phone, walkie-talkies or the use of a mail drop, all of which terrorists use for private communications in order to further their extremist agendas,” Fields alleged in an amended complaint.
Twitter moved to dismiss the claim on the grounds that Fields sought to hold it liable for third-party content.
Fields can't sidestep Section 230 immunity by attempting to hold Twitter liable for failing to shut down ISIS-linked accounts and take other meaningful action to stop terrorist use on its site, Twitter argued.
It referred to Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014), in which the U.S. Court of Appeals for the District of Columbia Circuit held that Section 230 barred a claim that Facebook Inc. failed to promptly remove a page calling for violence against Jews . The claim sought to hold Facebook liable as the publisher of the offending content even though the site merely provided a neutral means for third parties to post information, the D.C. Circuit said.
Regardless of how the claim is labeled, what matters is whether the cause of action requires the court to treat the defendant as the publisher of third-party content, Twitter said.
“Plaintiffs cannot skirt Section 230's protections by invoking a novel cause of action or by styling Twitter's editorial conduct and provision of neutral tools as ‘material support' for terrorists or terrorism,” it said.
The claims fall squarely within the scope of Section 230 immunity because the content at issue was posted by third parties, even though Twitter offers users neutral tools to create and discover that content, Twitter also argued.
It cited Fair Housing Council of San Fernando Valley v. Roommates.com LLC, 521 F.3d 1157 (9th Cir. 2008), in which the U.S. Court of Appeals for the Ninth Circuit held that a roommate-matching site requiring users to answer questions about allegedly discriminatory housing preferences wasn't protected under Section 230 for the unlawful user responses .
The Ninth Circuit said that website operators that provide neutral tools to carry out what may be unlawful activity retain their Section 230 immunity so long as they don't contribute to the alleged illegality.
Here, absent allegations that Twitter took action to promote the direct messaging tool for unlawful purposes, the tool is “fully protected by CDA immunity,” Twitter said.
Bursor & Fisher PA represented Fields. Wilmer Cutler Pickering Hale & Dorr LLP represented Twitter.
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