Facebook, Hamas, and Why a New Material Support Suit May Have Legs

The last few months have seen a spree of lawsuits filed against social media companies for allegedly providing material support to terrorists groups, particularly ISIS, by effectively allowing those groups to use their systems. We have written a lot about these cases, both hypothetical and actual. One was just filed recently. Another is currently facing a motion to dismiss.

Our position with respect to these various cases so far has been the following: We have argued that they should not be dismissed on the basis of section § 230 of the Communications Decency Act. But we have also contended, with respect to the main defendant so far, Twitter, that “Twitter's defenses are probably strong, there being no particular reason in the complaint[s] themselves to connect the specific attack[s] with anything that happened on Twitter.”

The plaintiff in any such suit has an obligation to establish some degree of proximate causation between the service given to the terrorist group and the attack that followed. And in the earlier cases, at least, there does not seem to be one even alleged. Because of this, as Ben wrote in May, “I suspect [this litigation against Twitter] is not the case that will ultimately test whether and under what circumstances companies like Twitter have exposure under the antiterrorism act civil liability provisions.” He took the same position with respect to a subsequent suit against Twitter, Google, and Facebook.

Yesterday, however, saw a new suit filed against Facebook on behalf of recent victims of Hamas attacks in Israel and their families. And this may be the suit that ultimately tests whether social media companies have any liability for terrorists’ use of their platforms.

This complaint, in our judgment, seems significantly more sophisticated than the earlier suits and much more likely to survive a motion to dismiss. As such, it could be a very big deal.

In this post, we will try to explain why.

As the court will be obliged in considering a motion to dismiss to take as true the facts alleged in the complaint, we will do the same here. Here's the complaint:

The victims and plaintiffs in this case include the families of Yaakov Naftali Fraenkel, a 16-year-old who was kidnapped by Hamas operatives with his friends at a bus stop, shot at point-blank range in the back of the car, and then dumped in a field in Hebron for the police to find nearly three weeks later; Taylor Force, a 29-year-old American MBA student and Army veteran stabbed along a boardwalk in Jaffa; and Chaya Braun, a three-month-old thrown from her stroller and slammed into the pavement when a Hamas agent drove his car into a light rail station in Jerusalem.

Like the other suits, this one alleges that Facebook provided a platform for Hamas to organize, recruit, communicate, and operate. As the complaint itself states, “[i]t is not merely about content, it is about the sophisticated technological means that Facebook provides to Hamas to make its terrorist goals a reality.”

But the complaint goes further than prior ones by alleging details concerning Facebook’s knowledge of its use by Hamas and, more importantly, concerning Hamas’s specific use of Facebook in, and thus Facebook’s causation of, the specific attacks that killed the plaintiffs’ family members. Remember that these were the two highest hurdles we identified to successfully establishing liability under the material support statutes.

Regarding Facebook’s knowledge of Hamas’s use of its platform, the complaint makes two allegations. First, as the other complaints do with ISIS, it details Hamas’s use of the platform, which is open and extensive. Hamas links to Facebook from its own official webpage; Hamas leaders and spokesmen have and regularly use Facebook accounts under their own names; multiple Hamas news organizations and information websites have their own active Facebook accounts; and numerous Hamas subgroups and affiliates use their own Facebook accounts to “display their affiliation with Hamas . . ., disseminate messages from Hamas, enlist support for Hamas, and otherwise promote and carry out Hamas activities.”

In fact, many of the entities and individuals listed in the complaint are designated terrorist organizations or individuals, including a number of organizations that were designated because of their financial support to Hamas. The implication is that you’d have to be living under a rock to think that Hamas is not using Facebook. (On this matter, see our three-part series on Twitter’s status under the material support laws and whether the company could be prosecuted criminally.)

The complaint goes on to allege that Facebook has the ability to monitor and block Hamas—just as it monitors and blocks pornographic materials—but that it “has refused to actively monitor” the site to block Hamas. “Instead, Facebook knowingly permits Hamas to use [the site], and only reviews Hamas’s use [of] Facebook in response to third party complaints.” The complaint also highlights Facebook’s efforts to respond to third-party concerns to demonstrate that the company does, in fact, have actual knowledge of this content and Hamas’s activity on the site: the complaint alleges that Facebook has initially suspended Hamas-related pages only to later permit them to become active again; blocked pages from appearing in Israel, but not in other countries; and reviewed Hamas pages calling for murderous activity before determining that the content did not violate its policies.

Most importantly, however, the complaint also makes an effort to establish causation by tying the organization’s and individual terrorists’ use of Facebook more directly to the attacks and resulting deaths and injuries. This is where this complaint is noticeably stronger than the earlier ones. Four of the five attacks were part of the recent surge in violence in Israel-Palestine that has sometimes been called the Facebook intifada, and the complaint details the social-media feedback loop between Hamas and its supporters that the complaint alleges has contributed to this violence: Hamas propagates videos, cartoons, and other posts calling for action, resistance, and violence; followers amplify this message; and when someone acts on the calls to violence, Hamas glorifies their acts and their memories, encouraging others to follow suit. Facebook, the complaint alleges, is involved in all stages of this cycle.

And in the case of victim Richard Lakin, the complaint alleges specific facts as to how this cycle played out in the days, weeks, and months leading up to Lakin’s death: the perpetrator’s posting on Facebook of a “martyr’s will” that was subsequently reposted and shared on Facebook by Hamas (see pp. 29-39). This is the most specific attempt we’ve seen to tie a defendant’s actions directly to the ultimate injury.

For the other attacks that are part of the most recent round of violence, the connection is not always so direct. The complaint does not cite each individual responsible terrorist’s involvement or activity on social media, or even state that these perpetrators had social media accounts. Instead, the complaint simply highlights posts inciting and glorifying violence immediately before each attack.

The fifth attack posits a different theory of causation. Yaakov Naftali Fraenkel was kidnapped and murdered in June 2014, before the current flare-up in violence. The complaint traces that attack back to the kidnapping of Israeli soldier Gilad Shalit and his subsequent release in 2012. Following that release, Hamas allegedly used Facebook to raise money for current and former Hamas prisoners—and one of the prisoners who allegedly received support went on to be a co-conspirator in Fraenkel’s murder. The connective tissue here, however, is not entirely clear; the complaint does not name the charity that had been fundraising on Facebook, nor does it explicitly state that the co-conspirator received money from a charity that had been fundraising on Facebook.

So let’s review the legal bidding. Facebook will argue, as an initial matter, that the case is barred by CDA § 230. So before it even gets to the question of whether the complaint alleges adequate proximate causation, the court will have to decide whether the suit is categorically barred. This is a hard question, and there’s no firm law on it. But we think, as we have argued before, that CDA § 230 cannot be reasonably read to bar a civil suit for material support for terrorism against a social media company that allows itself to be exploited by a terrorist group. As we explained back in January as to the suit against Twitter over ISIS’s use of the service:

all of the cases in which the courts to date have immunized service providers are cases predicated on offending content of some sort. That is, somebody posted something that was alleged to abridge someone else’s legal rights, and the question was whether or not the service provider bore some responsibility for the third party’s offending content. Construing § 230 broadly, the courts have held that holding the provider of “neutral tools” liable for such offending content makes the provider a “publisher” or “speaker.”

The material support laws, however, do not work this way. Liability under them does not depend on offending content—by the provider, by a third party, or by anyone. Consider 18 U.S.C. § 2339B, which holds that “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.” There are many reasons to believe that Twitter has not violated this law by providing service to ISIS users (we spell out some of Twitter’s defenses in our post last week), but note that if it has violated the law, that offense was completed the moment Twitter knowingly provided service to ISIS. The offense does not depend in any way on what ISIS may have tweeted, or even if ISIS used the service in question. If ISIS operatives tweeted cat videos or they tweeted nothing at all, Twitter still would have violated the statute (assuming it did) the moment it knowingly provided “any property, tangible or intangible, or service, including . . . communications equipment” to operatives of a designated foreign terrorist organization.

In other words, one is not imposing liability under the material support laws based on any allegedly offending content. One is imposing liability based on the provision of service as an antecedent matter to a terrorist organization.

We think the same analysis should prevent the court here from giving Facebook blanket immunity from suit for material support.

Assuming the CDA § 230 does not bar suit entirely, the court will be left on a motion to dismiss to decide whether or not the facts alleged state a claim.

To survive a motion to dismiss in the Second Circuit, an ATA suit has to allege proximate causation. As the Second Circuit articulated in Dongguk University v. Yale University, proximate causation turns on “whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries,” and this determination will normally be a jury question. In a case in which an intervening third party—say, for example, a terrorist—is more immediately responsible for the injury than the defendant, the court noted in Woodling v. Garrett Corp. that a defendant can still be liable “if the intervening act was [a] normal or foreseeable” consequence of defendant’s behavior.

How does this apply in the context of a civil suit alleging material support for terrorism? The controlling case on that point is Rothstein vs UBS AG, in which the Second Circuit confronted allegations by victims of Hamas and Hizballah terrorist attacks that the financial institution, UBS AG, by illegally doing business with Iran, had materially supported terrorists and was liable for the plaintiffs’ injuries. The court threw the case out, arguing that the connection between the general business UBS did with Iran and the specific attacks at issue was too thin to support proximate causation:

The Complaint does not allege that UBS was a participant in the terrorist attacks that injured plaintiffs. It does not allege that UBS provided money to Hizbollah or Hamas. It does not allege that U.S. currency UBS transferred to Iran was given to Hizbollah or Hamas. And it does not allege that if UBS had not transferred U.S. currency to Iran, Iran, with its billions of dollars in reserve, would not have funded the attacks in which plaintiffs were injured.

And while the Complaint alleges that “UBS knew full well that the cash dollars it was providing to a state-sponsor of terrorism such as Iran would be used to cause and facilitate terrorist attacks by Iranian-sponsored terrorist organizations such as Hamas, Hizbollah and PIJ” ..., these are conclusory allegations that do not meet Twombly's plausibility standard with respect to the need for a proximate causal relationship between the cash transferred by UBS to Iran and the terrorist attacks by Hizbollah and Hamas that injured plaintiffs. The fact that the transfers were made to a state sponsor of terrorism of course made it more likely that the moneys would be used for terrorism than if the transfers were to a state that did not sponsor terrorism. But the fact remains that Iran is a government, and as such it has many legitimate agencies, operations, and programs to fund. We see no nonconclusory allegation in the Complaint that plausibly shows that the moneys UBS transferred to Iran were in fact sent to Hizbollah or Hamas or that Iran would have been unable to fund the attacks by Hizbollah and Hamas without the cash provided by UBS.

The Rothstein decision describes the standard of proximate causation in these cases mostly by negative implication, by stating what did not appear in the complaint in that case. It never quite states a standard that plaintiffs’ pleadings have to meet in how proximate the alleged causation needs to be. But particularly in combination with the non-terrorism case law on the subject of proximate causation, there are gleanings to take from the decision that we think get this case a lot closer to surviving a motion to dismiss than either Rothstein or the ISIS cases.

Let’s break it down:

• “The Complaint does not allege that UBS was a participant in the terrorist attacks that injured plaintiffs.” The current complaint also does not allege that Facebook was a participant, but it does allege that it knowingly allowed itself to be used in the attacks that injured plaintiffs.

• “It does not allege that UBS provided money to Hizbollah or Hamas.” The current complaint does allege that Facebook provided services to Hamas in violation of criminal law.

• “And it does not allege that if UBS had not transferred U.S. currency to Iran, Iran, with its billions of dollars in reserve, would not have funded the attacks in which plaintiffs were injured.” The current complaint does allege that if Facebook had not provided services to Hamas, Hamas would have lacked a critical organizational tool it used in at least one of the specific attacks at issue.

• “We see no nonconclusory allegation in the Complaint that plausibly shows that the moneys UBS transferred to Iran were in fact sent to Hizbollah or Hamas or that Iran would have been unable to fund the attacks by Hizbollah and Hamas without the cash provided by UBS.” In contrast, in the current complaint, we do see nonconclusory allegations concerning how Facebook was used in the attacks, though it’s less clear that we see allegations that Hamas could not have pulled off the attacks without using Facebook.

Note that had the plaintiffs filed the complaint in the Seventh Circuit, rather than the Second Circuit, the lower causation standard Judge Posner articulated in Boim v. Holy Land Foundation would apply in what would seem like a helpful fashion. In that long and involved en banc decision, the court found a Hamas donor could be found liable because it “had participated in the wrongful activity as a whole [and] thus was liable even though there was no proven, or even likely, causal connection between anything he did and the injury.” The Second Circuit, however, has rejected this lower causation standard, finding that the ATA requires a traditional showing of proximate causation.

Does this complaint meet the Second Circuit’s standard of proximate causation? That may well end up being a jury question, which is to say that at least some of the allegations in this complaint may satisfy the proximate cause requirement for purposes of a motion to dismiss. A reasonable jury, after all, might well be able to conclude that Facebook’s provision of service to Hamas figures and Hamas’s aggressive use of those services constituted a “substantial factor” in the attacks, even if not a “but for” cause, or that the attacks were a “foreseeable consequence” of Facebook’s allowing use of its system by Hamas figures.

If that ends up being how a court looks at the motion to dismiss, this case will be a very big deal, even if Facebook eventually wins. After all, even establishing the principle that a social media company can theoretically be liable for a terrorist’s use of its systems would be a bit of an earthquake both in the law and in the operating environment for companies that seek to make their services available to all users.