Last year, the family members of two people killed in an attack in Jordan sued Twitter for allegedly encouraging terrorism by allowing members of ISIS to create accounts on the service.
That lawsuit, brought by the widows of Lloyd “Carl” Fields, Jr. and James Damon Creach, was the first -- but not the last -- in which family members of victims sought to hold Twitter responsible for terrorist attacks.
A trial judge dismissed the family members' complaint on the grounds that the Communications Decency Act protects Twitter from liability based on users' activity. The family members are now appealing that ruling to the 9th Circuit.
This week, Twitter got some high profile support from the digital rights groups Electronic Frontier Foundation and Center for Democracy & Technology. The groups make the sweeping argument that Twitter isn't legally obligated to censor "offensive speech," and that any attempt to force it to do so conflicts with the First Amendment.
The EFF and CDT say in their legal papers that speech about terrorism is legal (provided it doesn't cross the line into "true threats" or inciting crimes), and that requiring companies to filter out "terrorist speech" would interfere with users' right to communicate and receive information.
"Holding platforms liable for publishing speech on certain topics ... interferes with users’ rights," the groups write in a friend-of-the-court brief submitted to the 9th Circuit on Wednesday. "Platforms will likely react to such legal liability by simply not publishing any speech about terrorism -- not merely speech directly inciting imminent terrorist attacks or expressing true threats. But users have the right to receive speech, even on unpopular and abhorrent topics such as terrorism or from unpopular speakers who advocate terrorist ideology."
The groups also argue that the Communications Decency Act protects Twitter from liability based on users' activity, and that any attempt to curb that protection will "fundamentally alter the relationship between platforms and their users."
"Instead of offering open forums for participation by people around the entire world -- a quintessential feature of Internet intermediaries -- these platforms, saddled with an active duty to monitor the creation of accounts, will choose to limit access to their platforms to individuals whose identities can be verified and who can be expected to post noncontroversial content."
The Silicon Valley trade organization Internet Association -- which includes Amazon, Facebook, Google, Twitter and other tech companies -- also is weighing in.
The organization argues that its members "are all committed to preventing terrorists from using their services to spread hateful propaganda," but are also immune from liability if their networks nonetheless are used by terrorists.
"No one -- not even the most sophisticated law enforcement and intelligence communities in the world -- can work with perfect precision," the Internet Association writes. "Congress recognized that holding Internet companies liable for all user activity in situations like this might make the perfect the enemy of the good."