There are many ways to fight terrorism. While most people think of the war on terror in military terms, Nitsana Darshan-Leitner, founder and president of Shurat HaDin, the Tel Aviv-based human rights organization, has chosen another method – the law.
Since 2003, Shurat HaDin has worked with Western intelligence agencies, law enforcement branches and a network of volunteer lawyers across the globe to take legal action on behalf of victims of terror and their families.
In recent years, her organization has embarked on an ambitious campaign to thwart the activities of terror organizations on the Internet. Darshan-Leitner says that terrorist organizations have found that the Internet is an indispensable part of their business model.
“Today, social media is a crucial component in the work of terror organizations,” she says. “They cannot manage without it. Using social media, they raise funds, recruit militants, spread their ideology and communicate with each other. “It is not only in Israel – it is a worldwide phenomenon,” she states.
Darshan-Leitner explains that evidence of the Internet’s influence on terrorism first became apparent during the “Knife Intifada,” between October 2015 and March 2016, when there were 211 stabbings of Israelis by Palestinians, 83 shootings and 42 car-ramming attacks, killing 30 Israelis and two Americans.
“Young Palestinians were grabbing knives and killing Jews,” she says. “When the Shin Bet (Israel Security Agency) interrogated the Palestinians who had committed these acts, they learned they were incited on social media to kill. You would find posts encouraging people to kill and videos illustrating how to do it.
“The terrorists had Facebook pages, where they received tens of thousands of likes after carrying out attacks, and other posts encouraging others to follow them. Social media became a hub of incitement to murder.”
The government urged Facebook to take down the messages inciting terrorism, says Darshan-Leitner, but the social media giant refused, stating, she says, that they were a type of “neutral bulletin board not involved with content.”
Shurat HaDin gathered 20,000 signatures from Israelis and filed an injunction in New York State. The organization hoped that legal action against Facebook would deter the company from providing social media access to terrorist organizations.
Shurat Hadin has had success over the years when the organization filed lawsuits against banks that have provided financial services to terrorist organizations. “Banks wired money freely and openly to terror organizations, such as Hamas and Islamic Jihad,” she recalls.
“People from all over the world donated to charities that identified with these terror organizations. There were no restrictions or regulations. Terror thrived as a result of the money coming in.”
When Shurat HaDin filed suit against the banks, she says, the financial institutions immediately stopped providing financial services to terror organizations. “Filing lawsuits against the banks for aiding and abetting terrorism was the only way to persuade the banks to halt any connections with terror organizations.”
Darshan-Leitner had hoped that the injunction that Shurat HaDin brought against Facebook would force the company to no longer allow terrorist organizations to utilize its social media platform. Unfortunately, that was not the case.
In response to the Shurat HaDin injunction, Facebook filed a motion to dismiss the suit based on Section 230 of the Communications Decency Act, a law passed by the US Congress in 1996. Section 230 provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third-party users.
It reads in part, “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,” explains Darshan-Leitner, “Section 230 grants blanket immunity, and they cannot be sued for content.”
Undeterred, Darshan-Leitner and Shurat HaDin filed a lawsuit against Facebook in federal court in New York on behalf of five families who had lost loved ones during the Knife Intifada. Facebook again filed a motion to dismiss the suit based on Section 230.
Darshan-Leitner argued that the issue was not one of content, but rather of promoting terrorist activities. “They cannot be immune, because the Anti-Terrorism Act prohibits any American company from providing any sort of services to a designated terror organization. It is very clear. The fact that Hamas has a Facebook account is a violation of the Anti-Terrorism Act.” Despite their position, the case was dismissed yet again.
Shurat HaDin decided to extend its reach and represent victims of terror attacks from around the world. Nohemi Gonzalez was an American college student at California State University-Long Beach studying design. In 2015, she traveled to France to spend a semester studying at the Strate College of Design in Sèvres, France.
On Friday, November 13, 2015, ISIS carried out a series of terrorist attacks in Paris that killed 130 people. The 23-year-old Gonzalez was one of the victims.
Darshan-Leitner and Shurat HaDin approached Gonzalez’s parents and, with their consent, represented them in a lawsuit they filed against Google, which owns YouTube. Darshan-Leitner explains that ISIS used YouTube as an essential tool for recruiting militants, spreading its ideology and fundraising.
“No one would have heard about ISIS without YouTube,” she notes. “YouTube screened videos of terrorists beheading their victims. The people who carried out terror attacks in Europe were not Muslims from Iran or Syria. They were Europeans.
“How do people from Europe have the enthusiasm to join ISIS and go to Iran? How would they know about ISIS? Only from YouTube, because they screen movies about joining ISIS, with a call to recruit people at the end of the videos.”
She adds that newspapers or television networks would never promote or broadcast such material. Google, as a social media service, did not face any such restriction. “We proved in court that Google was an essential tool in recruiting Belgian terrorists, and this is why they are liable,” she says.
The case, which was initially filed in New York, was moved to California at Google’s request. Once again, the case was dismissed based on Section 230. This time, however, Shurat HaDin filed a writ with the US Supreme Court, petitioning the court to hear and review their case.
After eight years of litigation that began in 2015, the Supreme Court agreed to hear the case in February 2023, which was a significant achievement, considering that the court only agrees to hear between 100 and 150 of the more than 7,000 cases it is asked to review yearly.
“For the first time,” says Darshan-Leitner, “we got the Supreme Court to hear whether social media companies should enjoy immunity under Section 230. Today, we know that social media censors tweets, suspends user accounts sand has ways to monitor content. The business model that enables them to make billions of dollars is the algorithm that controls content.”
The reason that the Supreme Court agreed to hear the case, she says, is because of Google’s algorithms that monitor content and recommend videos based on other content that the user has viewed. “The court said it was time to revisit Section 230. What was valid when the law was enacted more than 25 years ago is no longer valid now,” she points out.
The hearing at the Supreme Court on the Gonzales case extended far beyond the regular amount of time usually allocated for such hearings. Most last no more than one hour, with each side given 20 minutes to present its case and 10 minutes to each side for rebuttal.
The case of Gonzalez v. Google lasted three hours. Darshan-Leitner says that the justices understood that whatever decision they would render would have broad implications beyond the specific case. They realized, she says, that social media companies cannot be the only industry in the world that is free from liability.
Darshan-Leitner adds that many proposals have been brought before Congress to modify Section 230, but nothing has been accomplished, due to the powerful social media lobby.
In May, the Supreme Court decided to remand the case to the Court of Appeals and stated that it would not address the application of Section 230. “The Supreme Court decided not to rule on Section 230 before we can prove Google’s liability for damages,” Darshan-Leitner explains. “They wanted to see if Google stands on the criterion of secondary liability under US law.”
She is encouraged by the decision because the court did not reject the claim on the basis of Section 230, which is what all of the previous court decisions had done.
“The Supreme Court said it is too early to discuss the merits of Section 230,” she says. “The court will revisit Section 230 when it becomes relevant if we pass the bar of proving liability.”
She admits that proving Google’s liability in the case will be challenging, but she is determined to do so. “I want discovery,” she says. “I want to depose Google officials to learn how they do it. I want to see what ISIS did on Google. If they give me this ammunition, we can prove the case. But if I can’t start the case because of Section 230, we will lose.
“It is clear that platforms like YouTube, Twitter and Facebook will never voluntarily act to self-regulate – in any meaningful way that safeguards the lives of innocent people or protects the national security of the US or other democratic states,” she says.
“The terror victims understand that the only way to stop the social media giants from knowingly providing their services to extremist groups like ISIS and Hezbollah is through civil litigation and demanding compensation.”
She adds that bipartisan efforts are being made in Congress to review and update Section 230 of the Communications Decency Act to ensure social media companies no longer provide service for extremist terror groups.
“It took decades to topple Big Tobacco,” Darshan-Leitner says. “We’ll eventually rein in reckless and greed-driven Big-Tech as well.”
This article was written in cooperation with Shurat HaDin.