On Jan 1, 2017, Nawras Alassaf and his wife were ringing in the New Year in Istanbul. It was a night of celebration at the popular Reina Nightclub. But around 1:30 a.m., Abdulkadir Masharipov opened fire on the crowd of about 700 partygoers in the venue.
In the seven-minute attack, Masharipov shot off more than 120 rounds and launched grenades, leaving 79 wounded and 39 dead, including Alassaf, a Jordanian citizen. ISIS quickly claimed responsibility for the attack.
In 2018, four of Alassaf’s relatives, all U.S. nationals, launched a civil suit in federal court alleging that Google, Twitter, and Facebook were a critical part of ISIS’s growth. They argued that these platforms had secondary civil liability—meaning that they were not directly responsible for the attack—under the Anti-Terrorism Act of 1990 for aiding and abetting the terrorist group.
The case, Taamneh v. Twitter, heads to the Supreme Court on Feb. 22. Publicly, it’s been overshadowed by another case on appeal from the 9th Circuit, Gonzalez v. Google, whose oral argument will happen on Feb. 21. Gonzalez is focused on whether Section 230, which shields internet companies and social media platforms from legal liability for what users say on their platforms, also provides immunity from the liability under the ATA. The future of Section 230 protections is on the line. Almost 80 amicus briefs have been filed in Gonzalez already.
Taamneh, which will be argued the following day, has garnered far less press attention and fewer than 25 amicus briefs—but it is just as likely as Gonzalez to determine the future of the internet. If the court rules in favor of the plaintiffs’ claims around secondary liability, platforms are going to get a lot more cautious about the content they host and monetize. Furthermore, federal and state legislators could leverage the ruling to impose liability on platforms for hosting other types of content.
The Supreme Court will decide on two main issues in Taamneh. The first deals with the services of online platforms. The plaintiffs allege the ISIS affiliated accounts began appearing as far back as 2010 on Twitter, 2012 on Facebook, and 2013 on YouTube. They focused on the role of these social media sites in the growth of the terrorist group, arguing that not only were the sites instrumental to the growth of ISIS in a substantial way, but that the platforms knowingly did not make meaningful efforts to remove accounts and content associated with the group from their platforms. Furthermore, the Taamneh plaintiffs argue that Google shared revenue with ISIS by reviewing and approving the terrorist group’s YouTube videos for monetization through its AdSense program. In response, the defendants are arguing that such an interpretation of the ATA would be overly broad and punish platforms for normal business practices.
The second issue asks whether a defendant can still be held liable for aiding and abetting if their services were not used in connection with the specific act of international terrorism. The defendants in Taamneh—Google, Facebook, and Twitter—argue that liability under the ATA is for only a discrete act of terrorism, not an overall terrorist campaign. They claim that the 9th Circuit created a circuit split in its decision. The plaintiffs disagree, arguing that the 9th Circuit simply followed the definition determined by courts in other circuits.
The first issue, of course, is more relevant to the future of the internet than the second. Namely: Can a company that runs an online service and makes attempts to prevent terrorists from using it be held civilly liable for providing knowing and substantial assistance to such groups if it did not take enough “meaningful” or “aggressive” action to remove the content? Additionally, does sharing revenue with a terrorist group through an ad distribution program mean that your platform knowingly supported their efforts?
If the Supreme Court rules in favor of the plaintiffs, online platforms could be opened up to a new area of potential liability for failing to completely moderate or remove content associated with illicit activities. Such a ruling could also leave these companies vulnerable for doing any sort of revenue sharing through automated ad systems, since Section 230 immunity is not the focus of the legal question here. The possibility of ad delivery systems being a vehicle for future lawsuits is perhaps the most concerning for platforms: Alphabet’s, Google’s parent company, ad revenues reached $253 billion in 2022 alone, and almost 90 percent of the company’s revenue comes from ad services. Ads are the way for platforms like Google to make money online; their entire business model could be forced to change in a rapid way.
Additionally, a ruling in favor of the plaintiffs could transform current content moderation practices in a manner not seen since the passage of FOSTA-SESTA, a bill that was aimed at curbing online sex trafficking. Upon facing just the mere threat of being held liable for certain third-party sex content on their sites, many platforms, including Reddit, Craigslist, and Google, decided to remove any listings that could be associated with sex work altogether when the bill became law.
Now, these companies could find themselves at additional risk if terrorist organizations use their platforms in support of their overall goals and the companies’ efforts appear to be lackluster. Exactly what counts as “lackluser,” though would be difficult to define—so they may choose to remove any possibility of risk at all and use blunt and overaggressive moderation methods. This could end up chilling speech that has nothing to do with terrorist activity, like nongovernment organizations that sometimes must deal with terrorist controlled governments to provide humanitarian assistance to at risk populations overseas. Furthermore, with the difficulty of modifying Section 230 itself, future legislation would no doubt use the secondary liability claims from the ATA as a framework to avoid the difficulties of trying to change the law.
Secondary aiding and abetting liability was not part of the original 1990 law—it was added in 2016 through the Justice Against Sponsors of Terrorism Act. Debates around the JASTA included questions about its potential effects on businesses, especially banks. If the concept of secondary liability was too broad, there could be a chilling effect on financial institutions as they would simply not choose to take the risk of doing business with certain large groups of individuals. Another potential pitfall was the potential that a bank could negligently providing a terrorist group funds through a computerized system and find itself as the target of a civil suit—which is exactly the legal question facing the Taamneh defendants and their revenue sharing programs.
There are arguments that a ruling that upholds the 9th Circuit’s decision would detrimentally affect free speech online and create untold risks to businesses that aren’t even internet platforms. On the opposing side are arguments that allowing terrorist groups to organize online with no way to hold online platforms responsible is detrimental to national security and the safety of American citizens.
Depending on who the court decides is right, the internet may never be the same.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.