Do Both Candidates Support More Aggressive Material Support Litigation?

With great respect for my friend Bobby, his recent post, Trump's Call for More Aggressive Material Support Prosecutions, overlooks the fact that Donald Trump’s views may well be shared by Secretary Clinton.

Bobby writes that Trump’s idea that “DOJ is not currently as aggressive as it might and should be when it comes to material support prosecutions” is “baloney.” While DOJ has certainly often used the material support statute to combat terrorism, I don’t think Clinton and Trump differ that much on the specific issue, nor do I think that every possible use of the material support statute has been fully explored.

In particular, Bobby faults this portion of Trump’s speech:

[W]e will pursue aggressive criminal or immigration charges against anyone who lends material support to terrorism. Similar to the effort to take down the mafia, this will be the understood mission of every federal investigator and prosecutor in the country.

Do we really think that Clinton would shrink from taking “aggressive” legal action against anyone “who lends material support to terrorism”? In her March speech at Stanford on counterterrorism she noted that “recent events have only reinforced the urgency of this [counterterrorism] mission” adding:

[W]e must dismantle the global network of terror that supplies money, arms, propaganda, and fighters. This means targeted efforts to deal with ISIS affiliates, from Libya to Afghanistan. It means going after the key enablers who facilitate illicit financial transactions and help jihadists arrange travel, forge documents, and evade detection. (Emphasis added.)

Advocating “going after the key enablers” sounds a lot like aggressively using legal processes against “anyone who lends material support to terrorism.”

Similarly, in another speech last June Secretary Clinton identified “three areas that demand attention” to counter terrorism, saying that “we and our allies must work hand-in-hand to dismantle the networks that move money, and propaganda and arms and fighters around the world.” Again, to me that sounds like an aggressive stance against those who provide material support.

Regarding unexplored uses of the material support statute, I think there are real possibilities to employ it to counter online radicalization which nearly every counterterrorism expert identifies as an issue. I’ve been thinking about this since last year’s Aspen Security Forum, where I asked FBI Director James Comey the following question (after he had said that the Islamic State “takes advantage of social media in a way to crowd-source terrorism”):

MR. DUNLAP: Mr. Director, you mentioned how Awlaki's material is still on the web. Should we not be systematically going after these websites and taking them down with national technical means or alternatively do you think there is any prospect for imposing civil liability on those who host them?

MR. COMEY: Two good questions. I don't think I either -- I don't think I've thought about them enough to give you an intelligent response, so I hope not to wing it. Yeah, I don't think I know enough to give you a smart answer, unfortunately.

Fast forward to this year’s Aspen Security Forum. Unfortunately, Mr. Comey wasn’t there to be quizzed on his progress, but I did get to pose this question to the “Countering Violent Extremism “ panel (composed of Facebook’s Monika Bickert, Congressman Ed Royce, George Selim of DHS, and Harvard’s Jessica Stern):

MR. DUNLAP: Last year I asked Jim Comey how come they didn't use the materials to support statute (sic) and civil lawsuits to go after social media that was hosting the—and it sounds like the problem is still as egregious as it was last year as we discussed in the program. Why shouldn't we be encouraging more civil lawsuits, at least from the private sector, because that's what changed big industries, big tobacco, the auto industry, the pharmaceutical industry. They have to have this motivation, this financial motivation, to do the things they need to do to take down the sites. At least sites reflective of organizations that are on the designated terrorist organizations, you know, listed by the State Department. Tell me why I'm wrong with that, or why I'm right.

Ms. Bickert took up the question. Suffice to say, I completely agree with the moderator Noah Shachtman’s conclusion at the end of her response: “Okay. Charlie did not get his question answered, I don't think“.

It is true that I didn’t ask Mr. Comey last year about the material support statute, per se. But given how long we have known about terrorist use of social media, the fact that, as late as July 2015, the FBI Director had not even thought enough about taking down hostile websites or about civil liability suggests to me this is an area for improvement and that material support litigation could still prove to be a useful tool.

A criminal prosecution of a social media platform could be challenging, of course. But I would have also thought the same of criminalizing the teaching of law as “material support,” but the Supreme Court in Holder v. Humanitarian Law Project held otherwise. Nevertheless, at least with respect to the use of social media platforms by Designated Terrorist Organizations it seems entirely plausible that criminal liability could be found.

In the civil realm private litigators have pressed forward with lawsuits alleging that social media platforms have provided “material support” to terrorism. In January, the widow of a contractor killed in Jordan filed a civil action against Twitter alleging the death of her husband at the hands of terrorists was the consequence of services Twitter “knowingly or with willful blindness provided to ISIS constitut[ing] material support to a Foreign Terrorist Organization (“FTO”) in violation of 18 U.S.C. § 2339B.” Notably, a month later, Twitter announced it had shut down 125,000 accounts suspected of terrorism involvement.

In June, the father of a student killed in the November 2015 Paris terrorist attack filed suit against Twitter, Facebook and Google, claiming they provided material support to terrorism. Similarly, in July, the families of victims of Palestinian attacks filed a $1 billion lawsuit against Facebook on the same grounds. Is it mere coincidence that following these new court filings Twitter announced it suspended another 235,000 accounts that “promoted terrorism,” or are we seeing something of a pattern that suggests more can be done when litigation motivates companies?

Social media platforms have a powerful defense in Section 230 of the Communications Decency Act (CDA) which can operate to block civil liability. CDA Section 230 was an element on the court’s decision to dismiss the contractor widow’s suit mentioned above, though the court may have reached a different conclusion had there been better and more specific causation linkage alleged between the terrorist postings and the fatal attack.

The relevance of that kind of linkage might be ultimately demonstrated in a different case. Accordingly, I agree with Ben Wittes and Zoe Bedell’s post suggesting that Section 230 is not necessarily an absolute bar to civil litigation. Importantly, Section 230 by its own terms has “[n]o effect on criminal law.” This perhaps highlights the opportunities—and need—for DOJ to prosecute appropriate cases.

I recognize that in many instances there might be logical or pragmatic reasons to not move forward with particular criminal cases even where a prima facie case of criminality exists. For example, a social media platform may agree to invest robust resources (to include automated systems) into removing terrorist accounts, and might be able to take aggressive action based on the user agreements unencumbered by First Amendment strictures that could complicate a governmental prosecution.

Nevertheless, as I indicated in my question to Director Comey, I believe experience shows that criminal and/or civil litigation is “what changed big industries, big tobacco, the auto industry, the pharmaceutical industry.” Voluntary cooperation is laudable and desirable, but there is nothing like the specter of jail to motivate the enormously remunerative social media companies to do what they must to halt the use of their products to spread terrorism.

Just last June CIA Director John Brennan confirmed that we live in an age—as researchers at the Danish Defence College put it—of the “weaponization of social media.” Brennan told Congress:

ISIL (Islamic State of Iraq and the Levant) releases a multitude of media products on a variety of platforms—including social media, mobile applications, radio, and hardcopy mediums. To disseminate its official online propaganda, the group primarily uses Twitter, Telegram, and Tumblr, and it relies on a global network of sympathizers to further spread its messages.

While I applaud DOJ’s effective use of material support statutes as a counterterrorism tool, I believe that there may yet be still-unused opportunities to aggressively wield it in certain cases to disarm those using social media as a weapon of terrorism.

(For the record, I am a registered independent, and as a retired military officer do not publicly support any candidate.)