The U.S. Supreme Court heard the oral arguments this past month in two cases involving an antiquatedly obsolete law, Section 230 of the 1996 Communications Decency Act, which has indemnified the high-tech online providers from criminal and civil liabilities in allowing terrorists to post incitement content on their bandwidths for 27 years. Silicon Valley warns that if the highest court in the land rules against them, the internet will be radically disrupted. Let’s keep our fingers crossed—the case before the nine justices, Gonzalez vs. Google, is mine. Together with my co-counsel, Robert Tolchin and Eric Schnapper, we set out years ago to demand that Big Tech finally be reined in and be compelled to regulate all the terror and hate on their platforms. The implications of the court’s ruling will impact the world, but the origins of this fight involve Israel’s fight against terrorism and the extremists hijacking social media to promote murder and destruction.
Shurat HaDin, the human-rights NGO I founded and lead that has sued Iran, North Korea, Syria and Hamas among others in our determination to bankrupt terrorism one lawsuit at a time, turned its attention to the California-based social-media giants and how they allowed terrorists to post images, videos and incitement content online. The violence was so bad in the months between the end of 2014 and early 2016, when Palestinians urged to commit lone-wolf acts of murder on social media, that Israeli Prime Minister Benjamin Netanyahu dubbed the violence the “Facebook Intifada.” Dozens of Israelis were killed and scores more were wounded in a series of stabbing, bludgeoning and car-ramming attacks across the country.
The Palestinians were among the first extremists to weaponize social media and maximize the reach of this anonymous far-reaching soapbox. Hamas, Palestinian Islamic Jihad, the Al-Aqsa Martyrs Brigade, the Popular Front for the Liberation of Palestine and others found the Silicon Valley-based platforms to be the ideal stage from where to broadcast antisemitic and anti-Israeli propaganda, incite murder, broadcast living wills, recruit new members, disseminate operational orders and generate donations. The despicable posts they shared online—videos of terror attacks showing innocent dead and wounded, caricatures of Jews that looked like they originated in Hitler’s Der Stürmer and photos glorifying those responsible for acts of murder—were voraciously received by the Palestinian population that was armed with mobile phones and hatred in their hearts, which had been brainwashed into a cult that glorified death and destruction.
We tried to reason with Facebook, gathering the signatures of 20,000 Israelis pleading with Mark Zuckerberg to show some responsibility for what he allowed on Facebook and to use its proprietary algorithms to block the repulsively dangerous content. When those pleas fell on deaf ears, we sued—in state and federal court—on behalf of the victims of the Facebook Intifada. The lost. The 26 words of Section 230—“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”—was wrongly interpreted to protect Facebook in every level of the judiciary, even when it included aiding and abetting the murder of Jews, Israelis and American citizens in direct conflict of anti-terrorism legislation.
Section 230, the way the lower courts were applying it, provided terrorists with a carte blanche for online promotion. The Palestinians were not the only nefarious forces manipulating social media. Hezbollah—and their Shi’ite masters in the tech centers buried deep below ground in Iranian Islamic Revolutionary Guard HQ in Tehran—had excelled in the art of spewing online terror. ISIS, though, the Islamic State in Iraq and Syria, were the social-media masters. ISIS manipulated impressionable men and women from across the Muslim world, especially émigré communities in Europe, to take up arms, rape and pillage, and join the jihad in their ever-expanding Caliphate. The ISIS Media Center in Syria broadcast barbaric videos of beheadings and human immolations that were liked, shared and retweeted on all platforms. YouTube, owned by Google, and ISIS were asymmetrical partners: The terror group’s barbaric content was actively promoted by propriety algorithms whose very mission was to recommend the medieval posts film snippets into viral posts, generating untold millions in ad revenue.
Social-media platforms, especially YouTube, became indispensable operational tools for ISIS—the online and mobile-phone app platforms were an integral part of the caliphate’s terror arsenal that was utilized in attacks across the world. Google and the other high-tech companies’ profits made the shareholders of these billion-dollar behemoths, even though providing a service to these U.S. government-sanctioned groups aided and abetted terrorist attacks that killed American citizens and violated the Anti-Terrorism Act.
One of the group’s most lethal attacks strikes came on the night of Nov. 13, 2015, in Paris. The attack, dubbed Europe’s 9/11, killed 130 people: Nohemi Gonzalez, a beautiful twenty-three-year-old exchange student studying in the French capital, was the lone American fatality. Her tragic death underscored the arrogance of the tech media giants to profit in allowing enemy terrorist entities to broadcast their moves and after-incident carnage online. Something had to change.
Nohemi’s mother Betty, a hairdresser from Whittier, Calif., and her stepfather, Jose Hernandez, took Google, YouTube’s parent company, to court, arguing that the tech giant used its algorithms to promote and recommend terrorist videos and propaganda for profit in direct violation of the Anti-Terrorism Act, the federal law that forbids U.S. companies and citizens from providing any support whatsoever to groups designated as terrorist, like ISIS. Heartbroken by the senseless murder of their daughter, Nohemi’s parents wanted to make sure that other mothers and fathers would never find themselves on the phone with a U.S. State Department official notifying them that their child had been murdered in a terrorist attack that had received support by American-based social-media providers.
Facing insurmountable odds in battling a billion-dollar company like Google that fielded an army of attorneys and lobbyists that waved the Section 230 flag before politicians and judges, Shurat HaDin repeatedly lost in state and federal court—shot down by 230. The organization remained relentless despite the setbacks; Nohemi’s parents were resolute. And then, on Oct. 3, 2022, after years of legal defeats and obstacles, the U.S. Supreme Court decided that it would hear the case. Oral arguments were presented on Feb. 21. A ruling is expected in June.
No matter how the nine justices rule, the Internet will, indeed, be radically altered: If the Supreme Court decides in favor of the Silicon Valley giants, Congress will assume the fight and amend the law. All of this was unnecessary, of course. Had companies placed a pragmatic moral compass of decent responsibility ahead of shareholder dividends and corporate earnings, the inciteful content that prompted Palestinian terrorists, Islamic fundamentalists and alt-right extremists to promote and live stream their murderous acts online would have never gone viral with a click or a swipe, and parents like Nohemi’s would never have had their hearts broken and their dreams forever shattered.
Nitsana Darshan-Leitner is an Israeli lawyer and the president of Shurat Hadin-Israel Law Center. Her best-selling book “Harpoon: The Covert War Against Terrorism’s Money Masters,” co-authored with Samuel Katz, has just been released in Hebrew.