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Has Social Media Committed International Terrorism?

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By Jonathan R. Tung, Esq. on August 10, 2016 12:57 PM

A number of lawsuits are pending in federal courts these days and their legal significance cannot be overstated. At issue is whether or not the three biggest names in social media today -- Google, Facebook, and Twitter -- have committed acts of "international terrorism" under the U.S. Anti-Terrorism Act.

The Problem

Like any social group, ISIS, Hamas, and other terrorist organizations have utilized the power of social media to their advantage. In the words of CIA Director John Brennan, groups like ISIS have used social media to "disseminate ... online propaganda." Lately, the tenor and tone between the public interest and individual interests of privacy has gotten only more strained.

The claim by the companies is that provisions of ATA do not apply, broadly because of the shielding function of the Communications Decency Act, the federal act that shields ISPs from lawsuit based on user content. But recently, this argument has seen rejection in appellate courts -- most notably in the DC Circuit Court.

The Limits of The Communications Decency Act

The most recent theories being proposed by plaintiffs in this case allege that Google and other socia media sites knowingly violated provisions within the ATA because they knew or should have known that ISIS was using social media to raise funds and find recruits. By itself, this would not be so damaging. But when the plaintiffs also allege that Google and company profited by placing ads on ISIS postings -- this complicates matters. This is exactly what plaintiffs alleged.

Another argument sought to attack the social media companies' stance that they simply act as a medium for people to meet. Plaintiffs sought to overcome protections under the CDA by arguing that the companies employed algorithms that allowed "like minded individuals" to find each other. Just as cat-lovers are assisted by algorithms to find other cat-lovers -- dangerous terrorists will also find it easier to find each other.

Calling for SCOTUS Review

The law is getting uneven treatment in the circuit and other federal courts. Sooner or later the United States Supreme Court will have to hear the issue of ATA standards and draw clear lines in the sand. As it is, courts are left to their own devices as to how best to apply the amorphous standards which could have real world privacy implications -- not simply for terrorists, but for us all.

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