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Supreme Court Reshapes Anti-Terrorism Act Liability: Twitter Not Liable for ISIS Content

May 25, 2023

In a recent wide-sweeping decision, Twitter v. Taamneh, the United States Supreme Court dramatically reshaped liability under the 2016 Justice Against Sponsors of Terrorism Act (“JASTA”), which imposes secondary, civil liability under the Anti-Terrorism Act (“ATA”) on persons who aid and abet or conspire to commit acts of international terrorism.

The case addressed questions concerning the liability of Twitter, Facebook, and Google (as owner of YouTube) for the 2017 ISIS New Year attack in Istanbul, Turkey that killed 39 people and injured 69 others. The Court concluded unanimously that the tech companies did not aid and abet that attack even though they allegedly knew that ISIS used their platforms to further its terrorist efforts and failed to keep ISIS content off their platforms. The decision clarifies both what it means to “aid and abet” and what the defendant must have “aided and abetted” under JASTA and the ATA. Cautioning against the application of inflexible and ill-fitting tests in new contexts, the opinion revamps the JASTA inquiry and will likely make it more difficult for plaintiffs to bring claims against defendants engaged in ordinary business operations.

In articulating the meaning of aiding and abetting liability under JASTA and the ATA, the Court held that a defendant must commit some act showing “conscious, voluntary, and culpable participation in another’s wrongdoing” so as to help make the wrongdoing succeed. The Court concluded that the defendant must aid and abet (by knowingly providing substantial assistance) another person in the commission of an act of international terrorism and that the focus of this inquiry is the defendant’s assistance to the tort. However, the Court eschewed a strict test and prescribed a balancing test between an act’s nexus to the tort and a defendant’s level of support. It explained that a direct nexus between the alleged aider’s act and the tort establishes an inference of culpable assistance; a more attenuated nexus demands a showing of “culpable participation through intentional aid that substantially furthered the tort;” and an absent nexus (where a plaintiff’s theory would hold a defendant liable for all the torts of an enterprise) requires a showing of “pervasive and systemic aid.”

Applying these concepts to the facts, the Court ultimately concluded that the defendant tech companies—who offered products generally available to the public, maintained arm’s length relationships with their customers, provided no special treatment or encouragement to ISIS, and lacked any association with or participation in the terrorist attack—demonstrated neither the culpability nor participation necessary for aiding-and-abetting liability to attach. This was true even though ISIS used the platforms to disseminate content, and the platforms’ algorithms, designed to match user experience with user interest, automatically recommended ISIS content to some users.

Going forward, the Twitter decision marks a shift to a context-specific, common-sense approach to JASTA aiding-and-abetting claims under the ATA. The decision ushers in a more flexible analytical framework in this area and will boost the prospects of providers of generalized services (and others) defending against JASTA claims. Aiding and abetting claims resting on ordinary conduct attenuated to the misconduct in question that may have survived legal challenges before the Twitter decision should now find the courthouse door barred.

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The foregoing is for informational purposes only.  It is not intended as legal advice and no attorney-client relationship is formed by the provision of this information.