The families of five Americans who were killed or injured by terror attacks in Israel and the West Bank have filed a $1 billion lawsuit against Facebook. The suit -- filed this week in  New York -- alleges that the world's largest social network "knowingly provided material support and resources to Hamas" thereby helping the terrorist group "communicate, recruit members, plan and carry out attacks, and strike fear in its enemies."

Hamas -- the notorious Islamic fundamentalist organization behind numerous acts of violence in the Middle East -- is designated a terrorist organization by the United States, the European Union, Canada, Israel, and various other nations; it has claimed responsibility for an attack that killed one of the U.S. citizens whose families are presently suing Facebook. The plaintiffs claim that expert analysis pegs Hamas as responsible for the other attacks between 2014 and 2016 that killed or injured members of the other families involved in the suit.

According to U.S. federal law, American businesses are strictly prohibited from providing any material support to any groups designated by the government as "terrorist groups" (or to the individuals leading such groups); the plaintiffs claim that Hamas and its leaders have "used and relied on Facebook's online social-network platform and communications services as among its most important tools to facilitate and carry out its terrorist activity."

While the lawsuit may, at first glance, seem like a serious threat to Facebook -- there are likely many more people who could potentially make similar claims against the social network -- it is important to understand that some sections of law other than the Anti-Terrorism Act cited by the plaintiffs paint a different picture. Historically, for example, technology companies have successfully argued that the Communications Decency Act -- also a federal law -- shields third parties (such as social media providers) from liability for the content of communications between other parties over their platforms. Facebook may successfully argue, therefore, that is not liable if some tiny percentage of its users misuses its service for terrorism-related purposes.

It is also important to keep in mind that while Facebook does remove various forms of hate speech and incitement to violence -- through the enforcement of "Community Standards" -- Americans are, in general, more cautious than residents of many other Western nations about censoring speech. The First Amendment is held as sacred, and, therefore, a relatively high bar is often set in determining when (non-classified) communications must be censored due to the offensive nature of the content. Of course, threatening violence against others and recruiting for illegal terrorist groups are not protected speech.

According to Bloomberg, "Facebook declined to immediately comment on the lawsuit but said, 'There is no place for content encouraging violence, direct threats, terrorism or hate speech on Facebook.'"

The present lawsuit -- and several others of a similar nature, including one filed by the wife of an American killed in a shooting in Jordan and one filed by the parent of an American murdered by terrorists in Paris  earlier this year -- should help clarify the law.

I should note (for full disclosure) that SecureMySocial, of which I am the CEO, offers patented technology that warns people if they are making problematic posts -- and can automatically delete various forms of offensive content -- including various forms of posts that support terrorism.

Although none of the three presidential candidates polling in double digits -- Donald Trump, Hillary Clinton, and Gary Johnson -- have commented on the Facebook lawsuit, they have expressed a need to more effectively combat terrorism. Trump even sided with the FBI when it demanded that Apple unlock a terrorist's iPhone. Recently, Clinton, referring to technology firms, stated that: "We need to put the great disrupters at work disrupting ISIS." According to Johnson, the government should not  "insert itself into our freedom to communicate," but rather the free market should continue to innovate and address any issues along the way. In his words: "There is nothing wrong with the Internet that I want the government to fix."

Regardless of the outcome of the present lawsuit, somehow, when it comes to fighting terrorism, we must do better.

Published on: Jul 15, 2016
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