Shurat Hadin and the war on terrorists’ use of social media
For years, Backpage.com had been accused of accepting classified ads promoting prostitution resulting in sex trafficking of both adults and minors.
By YONAH JEREMY BOBGOVERNMENT AGENCIES can now ‘monitor social media and shut people off for posts which are antisemitic, anti-Israeli, or for inciting violence or racism.’(photo credit: Courtesy)
Is there a way to channel current anger with Palo Alto into ending blanket immunity from lawsuits for terrorists’ use of social media?The combined anger of US President Donald Trump in 2020 and of Democrats in 2016 for perceived damage to their political fortunes by social media giants has made major reforms to the tech industry more likely than ever.But for Shurat Hadin President Nitsana Darshan-Leitner, the rest of the world is just starting to catch up to an argument she has been making for five years.Originally, Darshan-Leitner sued Facebook, Google and Twitter for wrongful death under the Anti-Terrorism Act (ATA), hoping that US courts would hold Palo Alto accountable for terrorists using their platforms for logistical and other activities that caused her clients’ deaths.In some cases, Shurat Hadin did manage to get farther than others had gotten, making Facebook sweat.But at the end of the day, Darshan-Leitner, like those trying to sue social media for aiding with the sex-slave trafficking industry, always ran into a brick wall called the Communications Decency Act (CDA).The CDA was originally meant to defend the fledgling new Internet industry in the 1990s, to allow it to innovate and grow. But it took both Democrats and Republicans feeling they got the raw end of the Internet’s treatment in consecutive elections to achieve the sea change that may see major reforms in the coming year.Ever the strategist, Darshan-Leitner would also be happy if the CDA could at least be partially rolled back on terrorism issues, even if all of its other many problems take longer to resolve.Resolving the broader issues will get into tricky questions about how much freedom the Internet should have regarding political speech, and drawing the lines could break down the current unified bipartisan anger against the companies.Shurat Hadin and others in their lawsuits had argued in recent years that the ATA was a way around giving enormous Internet companies blanket immunity.
They said that they were not suing social media for posting content, but for facilitating terrorists’ logistical needs.Their argument was that if posting that content did facilitate logistics for terrorist acts, lawsuits could not be prevented by free speech principles or hiding behind the idea that platforms are not responsible for third parties.Shurat Hadin noted that US courts had already ruled that banks (Darshan-Leitner was involved in some key cases) can be held liable for facilitating logistics for terrorists by being a conduit for third-party terrorists’ funds, even if the banks are unaware of the purpose of the funds.If that was true, then social media platforms could be held liable for unknowingly being used as a planning and recruiting conduit by third parties.Courts showed lots of emotional sympathy for the argument, but said that they could not find a basis for it under the current law. But what if Congress just made this one thin exception to the current law that ATA cases that are otherwise valid do not get blocked by the CDA?“One relatively straightforward solution could be to amend 47 U.S.C. § 230(e), to exclude application of the CDA to any civil action that arises out of a violation of federal criminal law,” said Darshan-Leitner.There is precedent for this approach from a bipartisan law in 2018 aimed at blocking advertisements for Backpage.com, which for years had been accused of accepting classified ads promoting prostitution, resulting in sex trafficking of both adults and minors.Even the law passed to modify the CDA to remove Internet immunity for Backpage.com only occured following an outcry over a 2016 US federal appeals court ruling saying the company was immune from civil lawsuits, despite profiting from intentionally structuring its website to facilitate an illegal enterprise.Past Shurat Hadin lawsuits included several families of ISIS victims, including California student Nohemi Gonzalez, who was killed in the November 13, 2015, Paris attack, and Alexander Pinczowski, murdered in the Brussels Airport attack on March 18, 2016.They also included attacks in Israel on behalf of Connecticut teacher Richard Lakin, who was stabbed to death on a Jerusalem bus on October 25, 2015, and Texas native Taylor Force, who was murdered in Tel Aviv on March 9, 2016.“We believe our groundbreaking lawsuits, both for injunctions and compensation under the US Anti-Terrorism Act, put Palo Alto on the defensive, and compelled elected officials to start to think about widespread regulations of the internet platforms,” said Darshan-Leitner. “We were out there way before anyone else.”She said that if the CDA is amended, “perhaps social media will finally understand that designated terrorist organizations such as ISIS could never have organized themselves, disseminated their message or recruited members without the aid of social media.“It’s no different than Facebook and Twitter providing financing, weapons, safe-housing and a recruitment platform to Hezbollah. In the end, the provision of social media services nowadays should be viewed no different than the provision of banking services.”
