DO PLATFORMS KILL?

• Author: Lavi, Michal

INTRODUCTION I. THE EVOLUTION OF NETWORKED TERROR A. From Localities to Online Social Networks B. Terror-Networks.Com II. SOCIAL MEDIA PLATFORMS AND TERROR: A DESCRIPTIVE ROADMAP A. Basic Intermediation: Hosting, Providing Communication Tools, and Sharing Revenues 1. Hosting 2. Providing Communication Tools 3. Sharing Revenues with Users B. Moderation: Enforcing Policy, Weeding out Terrorist Content and Accounts (Or Neglecting To Do So) C. Algorithmic-Based Targeting of Recommendations III. THE NEW SCHOOL OF REGULATION: INTERMEDIARIES' LIABILITY TO TERROR CONTENT A. Legal Response to Terrorist's Content on Social Media 1. Terrorists' Content Regulation in the Shadow of the Law 2. The U.S. Approach a. Material Support Doctrines b. Section 230 of the Communication Decency Act c. Challenges to Civil Lawsuits under Sections 2333 and 230 and Proximate Cause B. Normative Analysis 1. Freedom of Expression and Public Safety 2. Corrective Justice 3. Efficiency IV. TAKING INFLUENCE SERIOUSLY A. Overcoming Section 230's Barrier B. Proximate Cause and Civil Remedies C. A New Framework of Intermediaries' Obligations Regarding Content, Algorithmic Targeting, and Terrorists' Accounts 1. Removal of Unprotected Speech Upon Knowledge 2. Safety by Design: Mitigating the Risk of Targeting of Unlawful Content and Recommendations 3. Safe Haven: Outlining a Lenient Liability Regime for Adopting Safety by Design, Best Practices, and Monitoring 4. Remedies, Sanctions and Regulatory Tools a. Tort Law: Loss of Chances Doctrine b. Criminal Prosecution c. Public Regulation, Algorithmic Impact Assessment, and Ex Post Enforcement 5. Voluntary Prevention and Mitigation a. Improving Detection, Enforcement, and Prevention b. Rethinking Legal and Ethical Considerations of Design to Prevent Harmful Outcomes of the Algorithmic Code CONCLUSION INTRODUCTION

On June 12, 2016, Omar Mateen committed an attack at an LGBT nightclub in Orlando, Florida. (2) Forty-nine people died along with Mateen. (3) Fifty-three others were injured. (4) On the day of the attack, Mateen posted on Facebook his allegiance to ISIS and demanded that the United States and Russia "stop bombing the Islamic state [sic]." (5) He also warned that further attacks would come: "The real muslims [sic] will never accept the filthy ways of the west.... In the next few days, you will see attacks from the Islamic state [sic] in the usa [sic]." (6)

ISIS claimed responsibility for the shootings shortly thereafter. (7) According to a complaint filed by the victims of the attack, "FBI analysts found that Mateen watched online jihadist sermons since at least 2012 and more recently had downloaded jihadist material to his laptop...." (8) Though there was no evidence he had ever been in contact with ISIS directly, it appears that ISIS was able, at least in part, to radicalize Mateen through the internet. (9)

In November 2015, Anwar Abu Zaid, Jordanian police captain, "shot and killed two government contractors on an American base in Jordan." (10) According to Abu Zaid's brother, Abu Zaid turned to terrorism after watching a video ISIS posted in February 2015, which showed the execution of a Jordanian pilot. (11) ISIS claimed responsibility for the attack. (12) A few months earlier, on December 2, 2015, Syed Rizwan Farook and Tashfeen Malik, a married couple, fired more than 100 rounds into a staff meeting of the environmental health department in San Bernardino, California, murdering fourteen and injuring twenty-two. (13) During the shooting, Tashfeen Malik pledged her loyalty on Facebook to Abu Bakr al-Baghdadi, the leader of ISIS. (14) A couple of days later, ISIS endorsed their acts of terrorism. (15) The FBI investigation of this terror attack revealed that Farook and Malik were radicalized by social media platforms several years before the attack. (16)

Social media platforms allow anyone to post content online. In recent years, social media has become a common venue for the dissemination of terrorist propaganda, as well as the radicalization, glorification, and incitement of terrorism. (17) Terror organizations, such as ISIS, Al-Qaeda, Hamas, and white supremacist terrorists, (18) exploit social media to solicit funds for their activities. (19) They upload photos and videos of terror attacks in real time, including livestreaming deadly terror attacks that gamify massacring, (20) which reach sympathizers and send propaganda to draw in people who are inclined to radicalization. (21) The recent Walmart terror attack in El Paso, Texas serves as a good example. The killer, Patrick Crusius, announced the start of his rampage on 8chan's board through a post that included a four-page manifesto. (22) The manifesto and posts on 8chan demonstrate Crusius's radicalization and turn towards white supremacy. (23) Based on a review and analysis of 8chan posts, Bellingcat, an investigative journalism website, concluded that an earlier manifesto of the Christchurch's shooter in New Zealand and the video of his attack, likely had a profound influence on Crusius. (24)

Social media allows terrorist groups to reach potential recruits (25) and inspire loners to commit attacks. (26) This use of social media allows terrorists to shock, threaten, communicate ideology, and affect the conduct of millions of viewers. It opens the gateway to violent extremism and incites individuals and groups to commit violence and hate crimes, (27) even if they are not part of a traditional terrorist cell. Incitement on social media has consequences in the physical world, as terrorists increasingly rely on social media to plan and execute attacks. (28) Social media platforms allow terror organizations to operate accounts in their own names, although many of them have been officially dubbed as terrorists. (29)

Clustering like-minded people online accelerates interpersonal dynamics of incitement across the network and enhances polarization and extremism. It increases the likelihood for more people to be engaged in terror attacks. (30) Yet, online intermediaries fail to remove inciting posts in many cases and fail to keep inciting content down. (31)

In addition to terrorists bottom-up social dynamics on social networks, intermediaries enable terrorists' activities from the "top down." Recently, at the Anti-Defamation League, actor and comedian Sacha Baron Cohen criticized social media companies, aptly describing Facebook as "the greatest propaganda machine in history." (32)

Intermediaries profit from terrorists, as they strategically target specific organic content and advertisements based on viewers and content. (33) Some intermediaries share revenues earned from targeted ads with those who posted the content, or with webpage owners. (34) The posters and owners might be terror organizations, and as a result, the shared revenues could fund terrorist activities. (35)

Moreover, in their quest to enhance profits from content and advertisement, intermediaries personalize content by automatic algorithms that recommend additional content to users. (36) These recommendation systems do not "know" what a particular user might prefer, but rather draw conclusions based on past interactions of similar users. (37) Thus, they direct users to new content, which might be terrorist oriented. Intermediaries use these algorithms to connect users with others who might have shared interests, even if the results of these match-ups go against the websites' content moderation policies. (38) This practice can play a vital role in spreading inciting content to those users most susceptible to that incitement.

The practice of targeted recommendation by the "AI propaganda machine" (39) may encourage susceptible social network members to consume extreme and even inciting content. (40) Targeted algorithmic-based recommendations increase the likelihood of influencing users because they seek the recommended content and are more susceptible to it. (41) Inciting content can thus radicalize susceptible social network users, and they are more likely to disseminate the inciting content and even act upon it. This may result in more victims of terror.

Terror victims and their families have brought suits against intermediaries, arguing that the offensive content, the practice of revenue sharing with terror organizations, and the personalization of recommendations to susceptible social network members materially supports terrorism in violation of federal antiterrorism laws. (42) In other words, the plaintiffs asserted that intermediaries were responsible for the physical harm and death caused by terrorists.

Should the law impose civil liability on intermediaries for terror attacks and allow victims to get redress? And if so, what should be the appropriate scope of intermediaries' civil liability and legal duty of care? This Article answers these questions and others. The Article defines terrorism as "the deliberate killing of innocent people, at random, in order to spread fear through a whole population and force the hand of its political leaders." (43) It explores the question of intermediaries' liability for incitement to terrorism on social media websites (44) and focuses on online social networks in particular. (45)

Part I of the Article focuses on the evolution of modern terrorism in the wake of social networks. It describes the influence of terror organization on social dynamics within social networks, which enhances inciting speech that can push participants to commit terror attacks. Part II outlines the different roles intermediaries take in facilitating networks that promote terrorist attacks. Part III explores the civil liability of intermediaries under the federal antiterrorism laws and section 230 of the Communications Decency Act. (46) Following this analysis, this Part deals with normative considerations for imposing liability on intermediaries. Part IV discusses the possibility of imposing liability on online intermediaries for material support of...