This is a very promising and overall good decision by a dissenting judge! Making some progress!
The general thinking on
the CDA is that, if and since they have the right, as a presumed mere
"carrier" and not a "content provider" not to be prosecuted for what
others decide to post, they should also have a responsibility not to
monitor anyone's posts, because in choosing in such a way to act as a
content provider, they have demonstrated a willingness to, by way of
*regulating* content, to have actually thereby become one.
So
when they chose to make algorithms detecting and banning Conservative
but not liberal posts, they demonstrated a willingness to police (and
so, regulate the provision of content on) their pages; thus making them
also liable for also deliberately choosing to look the other way when
Muslim terrorists post anti-Semitic content. The right to self-regulate
is evidence that not only can they do so, but also that they accepted
the responsibility to do so; after all, rights can only come with
concomitant, corollary responsibilities, and choosing to do nothing is
also still a choice.
;-)
From a recent press release from
Nitsana Darshan-Leitner
President of Shurat-HaDin: |
The district court had initially rejected the lawsuit and the Israeli's arguments back in May 2017. Unfortunately, the judge ruled back then that a
federal statute called the Communication Decency Act (CDA) provided
internet platforms with a sort of blanket immunity for the content on
its site, even if it was posted there by terror groups. The CDA provides
that: "No provider or user of an interactive computer service shall be
treated as the publisher of any information provided by another
information content provider." Under the district court's
interpretation this meant that Facebook is not liable for anything
published by a 3rd party on their site, even if its placed there by
terror groups like Hamas. The district court failed to really address their allegations that the mere act of providing social media services to a
terrorist group was strictly prohibited under American law.
Accordingly, they disagreed with the decision, believing instead, that the
court was interpreting immunity under the CDA way too broadly and
appealed this ruling to the Second Circuit Court of Appeals.
This past week, the Second Circuit Court of Appeals ruled against the Israelis in a 2-1 decision. What
is noteworthy, however, is that the Chief Judge, Robert Katzmann, wrote
a 35 page dissenting opinion supporting some of their arguments!
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This
is a very powerful development. It means that the most senior judge in
the influential Second Circuit believes the law supports their argument
that Facebook, by providing services to the terror groups, might be
liable in aiding and abetting the terror attacks. The judge agreed that
Facebook's powerful filters and algorithms played an active role in
allowing terrorist users to connect with others with the same extremist
motivations and assisted them in connecting with the terror groups. In
particular, the judge agreed with the contention that Facebook could be
held liable for its affirmative role in bringing terrorists together and
the CDA did not provide a defense for this. .
Based on Judge Katzmann's remarkable opinion they will make a motion for the Court of Appeals to rehear the case en banc,
that is with a larger panel of judges, to reconsider the validity of
our arguments.
The Israelis are the first group to be challenging the mega-powerful social media
platforms over their provision of material support to terrorist
organizations like Hamas and are hopefully gaining some traction.
Please see a link to the Chief Judge’s dissenting opinion HERE.
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