Social media services like Facebook and Twitter have been immune to lawsuits for incitement and the negative impact of terrorists using their services until now.
With Public Security Minister Gilad Erdan attacking social media more aggressively than ever and Facebook responding more directly than ever on Sunday - is that about to completely change?
But the road ahead is unclear and even with some new strategies, it will be like navigating a legal minefield of defenses that can insulate the platforms from any liability.
Until now it has been a bit quieter for Twitter in the legal sphere, certainly as compared to Facebook, and even more so compared to Facebook regarding terror in Israel.
Facebook has already been in the legal crosshairs, but Twitter less so.
On October 26, 20,000 Israelis, through the NGO Shurat Hadin, sued Facebook in New York state court alleging that the social media platform is intentionally disregarding the widespread incitement and calls for murder of Jews being posted on its web pages by Palestinians.
A 76 page list of plaintiffs contended that “Facebook's refusal to remove the flood of extremist videos, statements and cartoons being posted by Palestinians is encouraging imminent violence and fanning the flames of the terrorist attacks that have overwhelmed Israel in the past month,” demanding it self-monitor and block incitement against Israel.
Originally and until he died from his wounds, the lead plaintiff was Israeli-American Richard Lankin, who was a passenger on a Jerusalem bus on October 13 when Palestinian terrorists from East Jerusalem,
The plaintiffs, who other than Lankin and a small number of other Israeli-Americans already actually hurt, had a debatable chance to sue from the start since they have not yet been harmed and are not citizens.
The complaint acknowledged that Facebook has established some rules concerning the content it will prohibit, but then alleges these are not sufficient to block the incitement to violence nor adequately enforced by the company.
Also, the complaint recognizes that “Facebook has taken down some of the most extreme calls to murder,” but again complains that this was “only after they were reported by Israelis.” That particular lawsuit did not go after Twitter, but it is noteworthy that in February, the social media platform said it had suspended 125,000 terror-related accounts over several months.
The plaintiffs argue that Facebook is “far from a neutral or passive social media platform and cannot claim it is a mere bulletin board for other parties' postings.”
They note that Facebook “utilizes sophisticated algorithms to serve personalized ads, monitor users' activities and connect them to potential friends” and claims it “has the ability to monitor and block postings by extremists and terrorists urging violence just as it restricts pornography.”
The complaint seeks to overturn past precedent protecting internet service companies from liability for third party postings, claiming that the way Facebook operates, intentionally or not, it functionally has an active involvement in the users' pages.
Shurat Hadin’s Facebook lawsuit always had an uphill battle as Facebook has beaten a wide range of lawsuits (most not even related to Israel) against it dating back to at least 2009, using the US Communications Decency Act (CDA) of 1996 to insulate it as an interactive-computer-service provider from liability for speech by third-party users of its services.
What all of that means is that publishers of content get to decide whether to publish content, so it is fair to hold them accountable for that content.
Facebook’s unbeatable defense has been that both it and the online message boards which preceded it, are just conduits without knowledge of what content is being posted. It says this should also free them for liability of the posting and for responsibility to remove content, certainly at least until it has been informed by others of a violation of its rules.
Originally, Shurat Hadin hoped and still hopes that it could overcome this defense by arguing Facebook is a more dangerous tool for terrorists than was previously known and that it has greater abilities to detect and remove terror content than it has admitted.
This would mean essentially telling courts that even if Facebook was seen as the same as message boards until now, that it is now used by terrorists in a much more threatening way and should be put in a unique category.
Second, they hoped to argue that Facebook’s advances in algorithms and society’s better understanding of these algorithms show that it actually has the ability to find and remove terrorists’ posts. This would contradict what was believed to be limitations on its abilities or the abilities of message board providers and again be an opening for holding Facebook liable even if it and message boards were insulated from liability in the past.
But this was only the beginning of lawyers analyzing how social media works and where it could be vulnerable to lawsuits to pressure it to cut-off terrorists from using their services.
At the beginning, the focus by advocates trying to fight anti-Israel terrorists (as opposed to ISIS which by far has the largest terror presence on the web) use of social media was Facebook and not Twitter for a few reasons.
First Facebook is used more than Twitter for posting videos and for larger and longer posts, so the terror incitement on Facebook broke through into the public’s consciousness far more. Videos are less common on Twitter and posts are limited to 140 characters.
Observers have said this was particularly true in Israel and with the Palestinians where Facebook is used far more by the general public, and Twitter is used by a much smaller group of journalists and public officials. While no study has been done, some believe that Facebook being the typical tool of average Israelis and Palestinians, as opposed to Twitter, is even more pronounced in this region than it is in the US where a greater number of average people use Twitter.
But then Tamara Fields, wife of a private American military contractor killed by a terrorist in Jordan in November, Reynaldo Gonzalez, father of Nohemi Gonzalez, who was murdered by ISIS terrorists in Paris in November and Shurat Hadin made a discovery, or connected some new dots.
They asked: what if social media is not looked at merely as a general tool for incitement by posting videos? What if it is looked at as giving “material support” to terrorists under the US Anti-Terrorism Act?
Using this concept, if banks could be sued in the US merely for being conduits of terrorists funds, even without being involved in terror themselves, social media providers could be sued as conduits for transmitting messages for using both Facebook and also Twitter for allowing networking, recruiting and publishing newsletters from Hamas’ and other groups’ Twitter accounts.
Once this approach was taken, it was apparent that Twitter could be included as violating the US’s ATA and maybe both Twitter and Facebook could be beaten in court with the argument that defenses in the past under the CDA were only meant to protect from general incitement lawsuits, not from more serious ATA terrorism claims.
Put differently, Shurat Hadin asked itself, if Hamas agents cannot open a bank account or physically enter the US because it is a terrorist group, why should it be able to use social media services of US-based companies like Facebook and Twitter?
The first to sue was Fields in January in in a US federal court in Northern California, with her case recently being dismissed. Gonzalez sued on June 14 also in California.
Shurat Hadin is planning to file its own Twitter lawsuit on behalf of the families of Taylor Force, a former US military veteran murdered during a terrorist stabbing spree in Jaffo in March, and others in the very near future.
It says it is filing a few weeks after the other lawsuit to seek a more favorable jurisdiction than California, seen as too friendly to Silicon Valley, and to more fully address some of the potential legal defenses Twitter may attempt.
The ATA idea may have a better chance of working to get around the CDA law which has insulated Facebook and Twitter from incitement lawsuits, especially because there has been a conceptual jump to view the social media platforms not merely as message boards for terrorists, but as providing concrete material logistical support.
On the other hand, there are a variety of debates going on in Israel, the US and elsewhere about passing new legislation to hold Facebook and Twitter to a greater level of accountability or to build cyberspace back-doors for the government to enter to hunt down terrorist activity.
The fact that they are only debates and have not yet become new laws suggests that the CDA may still be an absolute defense against lawsuits until a new law actually passes.
Moreover, whereas a new law sponsored by Justice Minister Ayelet Shaked and Public Security Minister Gilad Erdan targets the social media platforms and may have a real chance of passing, support for legislation in the US is nowhere near the level needed for anything big to happen in the near future.
This means that the current lawsuits may raise public pressure on Facebook and Twitter, but even with their new approach, their chances of success are low without new legislation.
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