By Katherine Tomaszewski

Background & ATA Overview

On Feb. 22, 2023, the Supreme Court of the United States (SCOTUS) heard oral arguments on Twitter v. Taamneh. The case will determine whether Twitter can be held secondarily liable under the Anti-Terrorism Act (ATA) for a shooting attack at the Reina nightclub in Istanbul for which the self-styled Islamic State (ISIS) claimed responsibility. The Court’s decision could have wide-reaching implications for non-government organizations (NGOs). Under a broad interpretation of the ATA, NGOs could potentially be held liable for “aiding and abetting” terrorist acts if any of their aid or services unintentionally end up in the hands of individuals associated with terrorist groups.

As noted previously in the Charity & Security Network’s (C&SN) C&SN Files Amicus Brief in Anti-Terrorism Act Case publication about the cases filed under the ATA, the Anti-Terrorism Act (18 U.S.C. §2333), which is part of the “material support” statutes, allows U.S. persons to sue for any injury caused by an “act of international terrorism” committed, planned, or authorized by an organization designated as a Foreign Terrorist Organization (FTO) under Section 219 of the Immigration and National Act. Any person who knowingly provides substantial assistance to the terrorists, or who conspires with the person who committed the terrorist act, can be liable under the ATA. 

To establish liability under the ATA, a plaintiff must prove:

    1. an act of international terrorism committed by an FTO;
    2. an injury to a U.S. person, or their estate, survivors, or heirs;
    3. conduct that “proximately” caused the injury, or secondary liability if the defendant aided and abetted the acts of terrorism; and
    4. intent.

While the ATA is silent on intent, the courts have interpreted this to require that the defendant knowingly engages in intentional misconduct, acts recklessly, or is willfully blind. Courts have previously found that mere knowledge of terrorist activity is not sufficient to establish liability. Therefore, this case will be crucial to watch as the Court’s decision will likely impact the current standards of knowledge and intent in determining whether Twitter’s general knowledge of ISIS members using its platform and alleged lack of “aggressive” action will constitute intent for the purposes of ATA liability (see below). 

Twitter v. Taamneh Oral Arguments

Relatives of the victims of the Istanbul attack sued Twitter and other social media platforms under the ATA, claiming that Twitter aided and abetted ISIS by allowing the group to use its platform and provided substantial assistance to ISIS by not acting aggressively enough to take down ISIS content on Twitter.

Twitter moved to dismiss, which the district court granted. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s decision, despite the defense argument that Twitter’s services were not used in connection with the specific attack in question and that Twitter regularly removed ISIS content and did not provide any sort of specialized assistance to ISIS. Nevertheless, the Ninth Circuit held that the allegations established that Twitter “knowingly” provided “substantial assistance” to an act of terrorism because they were cognizant of ISIS using their platform.

On Feb. 22, over the course of two and a half hours, SCOTUS heard oral arguments and questioned the parties to the case. The Court explored whether: (1) an internet platform “knowingly” provides substantial assistance under 18 U.S.C. § 2333 solely because it allegedly could have taken more “aggressive” action to prevent ISIS’ use of the platform, and (2) an internet platform is liable under Section 2333 for “aiding and abetting” an act of terrorism even when its services were not used in connection with that specific act of terrorism. 

Implications for Civil Society

C&SN, in collaboration with Freshfields and Interaction, filed an amicus curiae “friend of the court” brief in this case due to the consequential humanitarian implications of an overbroad interpretation of the ATA by the Supreme Court. In the brief, C&SN argues that an “expansive interpretation [of the ATA] risks crippling vital humanitarian and development work that NGOs perform in the world’s most fragile states.” NGOs provide essential humanitarian aid, peacebuilding services, and life-saving resources in conflict and poverty-impacted areas of the world. While operating in these areas, NGOs already implement stringent due diligence mechanisms and risk-mitigation procedures to ensure their support is not funding or supporting terrorist groups or activities. 

However, under this overly broad interpretation by the Ninth Circuit, NGOs could potentially be held liable under the ATA for “aiding and abetting” terrorist acts if any of their aid or services unintentionally end up in the hands of individuals associated with terrorist groups. This kind of liability would undoubtedly have a chilling effect on NGOs and their operations, and many would be forced to discontinue or shrink their operations out of fear of liability under the ATA. Not only would this prevent aid from reaching those who need it most, but it would also lead to a lack of education programming and other basic needs, which has been shown to increase the potential for violent extremism and terrorist acts. 

Recognition of Risks to NGOs

During the oral argument, Justice Brett Kavanaugh mentioned the arguments cited in C&SN’s amicus brief, noting that humanitarian and charitable organizations could be “swept up” into legal liability by this case for “aiding and abetting” under the ATA. 

Justices also questioned the parties to the case about the “knowing” element of the ATA, and what constitutes “substantial assistance” for general services and businesses in the modern world. They inquired whether several hypothetical scenarios could create liability for businesses and media companies under this broad interpretation of the ATA. For example, they asked whether, hypothetically, the plaintiff’s argument would create liability for media companies like CNN for their 1997 interview of Osama Bin Laden, or for telephone companies if payphones or cell phones are used by terrorist organizations. 

Decision & Timeline

While the Court did not indicate its final position one way or the other, C&SN is hopeful that this broad array of questioning by the Court elucidates the dangers of the wide-reaching implications of the Ninth Circuit’s overly expansive interpretation of the ATA, and the subsequent consequences this could have on the operating environment for civil society.

The decision for Twitter v. Taamneh is expected by June 2023. C&SN will continue to provide updates and analysis as the case proceeds.