A long-standing lawsuit holding Twitter responsible for the rise of ISIS got new life today, as plaintiffs filed a revised version of the complaint that was struck down earlier this month. In the new complaint, the plaintiffs argue Twitter’s Direct Message service is akin to providing ISIS with physical communications equipment like a radio or a satellite phone.
It’s the plaintiffs’ third attempt, after two previous complaints were struck down by the judge. In each instance, the judge gave the plaintiffs 20 days to file a new complaint responding to the reasoning of the dismissal.
The latest complaint is largely the same as the one filed in January, but a few crucial differences will be at the center of the court’s response. The complaint still centers around David Shields, a military contractor killed in Jordan by an ISIS-linked attack, but now Shields’ family is joined by the family of James Damon Creach, a fellow contractor who was killed in the same attack.
The plaintiffs also offer new arguments for why Twitter might be held responsible for the attack. In the dismissal earlier this month, District Judge William Orrick faulted the plaintiffs for not articulating a case for why providing access to Twitter’s services constituted material aid to ISIS. “Apart from the private nature of Direct Messaging, plaintiffs identify no other way in which their Direct Messaging theory seeks to treat Twitter as anything other than a publisher of information provided by another information content provider,” the ruling reads. At the same time, the judge found that the privacy of those direct messages “does not remove the transmission of such messages from the scope of publishing activity.”
The new complaint includes some language that might address that concern, explicitly comparing Twitter to other material communication tools. “Giving ISIS the capability to send and receive Direct Messages in this manner is no different than handing it a satellite phone, walkie-talkies or the use of a mail drop,” the new complaint reads, “all of which terrorists use for private communications in order to further their extremist agendas.”
The clearest legal distinction between a Twitter account and a satellite phone comes from the Safe Harbor clause, which generally protects service providers from liability for data hosted on their network. After the earlier dismissal, Brookings Institute scholar Benjamin Witters argued against protecting Twitter under the Safe Harbor clause, claiming that the current reasoning would also protect companies that actively offer services in support of terrorists. It remains to be seen whether that argument will find favor with the court.
In a post earlier this month, Twitter claimed to have suspended 235,000 accounts over a six-month period for connections to violent extremism. Reached by The Verge, the company declined to comment.