The “Just Like Everyone Else” Test: Providing Off-the-Shelf Services Isn’t Tortious Aiding & Abetting
Today’s Twitter v. Taamneh, Inc. involved (to oversimplify slightly) a lawsuit against Twitter based on Twitter’s alleged role in helping ISIS by providing it publishing services, and by algorithmically recommending some of ISIS’s videos. The lawsuit was brought under the federal Antiterrorism Act, but the Act applied fairly traditional aiding-and-abetting principles, borrowed from the criminal law and tort law. (The tort law and criminal law principles aren’t always identical, but they seemed to be treated similarly in this case.)
No liability, the Court held, chiefly because Twitter (and others) merely provided an off-the-shelf service, which treated ISIS no better than any other user. Here’s an excerpt, with the references to this arms-length treatment emphasized:
To start, recall the basic ways that defendants as a group allegedly helped ISIS. First, ISIS was active on defendants’ social-media platforms, which are generally available to the internet-using public with little to no front-end screening by defendants. In other words, ISIS was able to upload content to the platforms and connect with third parties, just like everyone else.
Second, defendants’ recommendation algorithms matched ISIS-related content to users most likely to be interested in that content—again, just like any other content. And, third, defendants allegedly knew that ISIS was uploading this content to such effect, but took insufficient steps to ensure that ISIS supporters and ISIS-related content were removed from their platforms. Notably, plaintiffs never allege that ISIS used defendants’ platforms to plan or coordinate the Reina attack; in fact, they do not allege that Masharipov himself ever used Facebook, YouTube, or Twitter.
None of those allegations suggest that defendants culpably “associate[d themselves] with” the Reina attack, “participate[d] in it as something that [they] wishe[d] to bring about,” or sought “by [their] action to make it succeed.” In part, that is because the only affirmative “conduct” defendants allegedly undertook was creating their platforms and setting up their algorithms to display content relevant to user inputs and user history. Plaintiffs never allege that, after defendants established their platforms, they gave ISIS any special treatment or words of encouragement.
Nor is there reason to think that defendants selected or took any action at all with respect to ISIS’ content (except, perhaps, blocking some of it). {Plaintiffs concede that defendants attempted to remove at least some ISIS-sponsored accounts and content after they were brought to their attention.} Indeed, there is not even reason to think that defendants carefully screened any content before allowing users to upload it onto their platforms. If anything, the opposite is true: By plaintiffs’ own allegations, these platforms appear to transmit most content without inspecting it.
The mere creation of those platforms, however, is not culpable. To be sure, it might be that bad actors like ISIS are able to use platforms like defendants’ for illegal—and sometimes terrible—ends. But the same could be said of cell phones, email, or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public writ large. Nor do we think that such providers
Article from Reason.com
