INTRODUCTION

“Jihad needs very many things. Firstly it needs money. Much is
dependent on money today for jihad.”

– Omar Abu al-Chechen, Syrian Terrorist Leader¹

The war against international terrorism is waged on many fronts. It is waged with conventional military campaigns in open combat, and by Special Operations Forces in the dark of night. It is fought by intelligence services and law enforcement agencies. It is also fought in the courtroom. This includes both criminal prosecutions of terrorists and those who support them, and increasingly, civil causes of action brought by victims and their families.

 There are two main ways for victims of terrorism to bring civil claims for acts of terror. The first, and most well-established, is to file suit directly against a state sponsor of terrorism under an exception in the Foreign Sovereignties Immunity Act.2 The second, less well-known way, is to file directly against persons who have materially assisted Foreign Terrorist Organizations in carrying out the attacks.3 This is a rapidly developing area of law that has the potential not only to compensate victims, but to help defeat terrorist groups by depriving them of the funding that is essential to their operations.4

I. CIVIL JUDGMENTS AGAINST STATE SPONSORS OF TERRORISM

Federal law provides a private right of action against foreign countries that are designated state sponsors of terrorism, for acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such acts.5 Under 28 U.S.C. § 1650A, suit may be brought against these states for personal injury or death caused by any of the acts listed above.6 Liability extends to any official, employee, or agent of the foreign state who was acting within the scope of his or her office, employment, or agency.7

A complete understanding of the specific terms in the statute is essential to bringing a successful case under § 1605A. Because sovereign immunity is a jurisdictional concern, in order to succeed, the complaint must allege that the state or its agent committed unlawful acts exactly as defined under the statute.8 The definitions of “torture” and “extrajudicial killing” are incorporated into § 1605A through the Torture Victim Protection Act of 1991 (TVPA).9 The TVPA is a federal law that imposes civil liability for acts committed by a state or its agents under actual or apparent authority of the state or under the color of law.10 This qualification is important. It means that torture or extra-judicial killing will not be actionable under § 1605A unless the plaintiff is able to show that the person carrying out the act was doing so as an agent of the foreign state.

TVPA defines extrajudicial killing as a “deliberated killing not authorized by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”11 The definition specifically excludes executions that are lawfully carried out under the authority of a foreign nation.12 “Torture” under the TVPA means:

The term “aircraft sabotage” is incorporated into § 1605A from Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.14 Similarly, the definition of “hostage taking” is incorporated into § 1605A from Article 1 of the International Convention Against the Taking of Hostages.15

The term “material support or resources” is incorporated into § 1605A from 18 U.S.C. § 2339A, which is a criminal statute making it unlawful to knowingly provide any sort of material support to terrorists.16 Under § 2339A, material support or resources is defined as, “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, and transportation, except medicine or religious materials.”17 As will be discussed below, material support has been construed quite broadly by the courts. However, when making allegations under § 1605A, it is imperative to check the statute carefully to ensure that the facts in the complaint precisely support the statutory definitions. Complaints that do not meet the statutory definitions may be dismissed sua sponte.18

A. Subject Matter Jurisdiction: Foreign Sovereign Immunities Act

In general, federal district courts have original jurisdiction over all civil matters arising under the Constitution, laws, or treaties of the United States.19 Because international terrorism is regulated by federal law and by numerous international treaties ratified by the United States, it might seem obvious that the federal courts would have “federal question jurisdiction” over civil terror-related actions against foreign states.20 However, in most instances, this is not the case. Even if the wrongful act in question meets one or more of the statutory definitions outlined above, the Foreign Sovereign Immunities Act (“FSIA”) will prevent a plaintiff from filing suit against the great majority of foreign states.21

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† Bryan Peeples is a graduate of Regent University School of Law. Bryan is also a recent retiree from the United States Navy, where he served for twenty-two years as a helicopter pilot. His Navy assignments include multiple combat deployments, culminating with a tour as the Commanding Officer of Helicopter Sea Combat Squadron NINE deployed aboard the aircraft carrier USS GEORGE H.W. BUSH. He also served as the Force Rotation Operations Officer for the U.S. Joint Staff, where he developed strategic plans and presented briefs to the highest levels of the nation’s military and civilian leadership. Bryan holds a Bachelor of Science in Biology, cum laude, from the University of South Carolina, and a Master of Arts with distiniction in National Security Strategy with a minor in Leadership and Ethics from the United States Naval War College. He attended law school while still on active duty and graduated number two in his class. While at Regent, Bryan earned twelve “Book Awards” for receiving the top grade in a law school class (a school record), and was selected by the law school faculty for the prestigious Honorable Richard B. Kellam Professionalism Award. Bryan works as an Associate Attorney at Pender & Coward P.C., a prominent law firm in Virginia Beach, Virginia, where he works in the areas of environmental law, worker’s compensation defense, construction, anti-terrorism and military law.

1 Thomas Grove, Militants from Russia’s North Caucasus join “jihad” in Syria, REUTERS, (Mar. 6, 2013, 2:25 PM), https://www.reuters.com/article/us-syria-crisis-russiamilitants/militants-from-russias-north-caucasus-join-jihad-in-syriaidUSBRE9251BT20130306.

2 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1605A(a (1)(c) (2012).

3 Id. at § 1605A(a)(1).

4 See Human Rights, Terrorism and Counter-terrorism, OFFICE OF THE U.N. HIGH COMM’R FOR HUM. RTS., (July 2008), https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf.

5 Foreign Sovereign Immunities Act § 1605A.

6 Id.

7 Id.

8 Id.

9 Torture Victim Protection Act of 1991 § 3(a)–(b); 28 U.S.C. § 1350 (2012).

10 Torture Victim Protection Act of 1991 § 2(a); 28 U.S.C. § 1350 (2012).

11 Torture Victim Protection Act § 3(a).

12 Id.

13 Torture Victim Protection Act § 3(b)(1).

14 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation art. 1, Sept. 23, 1971, 974 U.N.T.S. 14118.

15 International Convention Against the Taking of Hostages, art. 1, Dec. 17, 1979, 1316 U.N.T.S. 21931.

16 18 U.S.C. § 2339A(a)–(b)(1) (2012).

17 Id.

18 28 U.S.C. § 1605A(h) (2012); See Legal Information Inst., sua sponte, CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/sua_sponte [hereinafter Cornell Law School].

19 28 U.S.C. § 1331 (2012).

20 18 U.S.C. § 2338 (2012).

21 Foreign Sovereign Immunities Act § 1605.

INTRODUCTION

On May 11, 2016, the United Nations Security Council (“UNSC”) requested that the Counter-Terrorism Committee propose an “international framework” to curb “Islamic State in Iraq and the Levant (“ISIS”)” incitement and recruitment.1 The UN’s urgent request comes at a time when terrorist groups, such as ISIS, have been increasingly using social media platforms as a tool to recruit followers and to incite their followers to commit violent acts.2 ISIS has been notorious for taking advantage of Twitter as a propaganda megaphone through which it blares its extremist narratives to the world.3 Moreover, the way in which social media platforms have enabled ISIS to instantaneously share its narratives with the world with just a click of the mouse has led ISIS to gain a global base of supporters.4 In fact, it would not be an understatement to claim that social media platforms have transformed terrorism by “facilitating both ubiquitous and real-time communication between like-minded radicals with would-be recruits and potential benefactors, thus fueling and expanding the fighting and bloodshed to a hitherto almost unprecedented extent.”5

Consequently, there is a pressing need for an international framework of internet governance on social media platforms to regulate ISIS narratives and to specifically curb ISIS incitement and recruitment through the regulation.6 The proposed international framework, however, must not infringe upon “human rights and fundamental freedoms and [must be] in compliance with obligations under international law.”7 Despite the UN’s recognition of the need to preserve “human rights and fundamental freedoms,” a proposed international framework on internet governance of social media platforms will inevitably implicate free speech rights. In addition, the lack of a universally accepted definition of terrorism raises potential issues with a government’s abuse of discretion. Without a universal definition of terrorism, a government would be able to arbitrarily decide what constitutes terrorist narratives at the cost of regulating merely objectionable yet legitimate content.

In an attempt to propose an international framework for internet governance of social media platforms, this Note will first examine the advantages of social media platforms and how ISIS has adopted these advantages for its own purposes of spreading propaganda, inciting, and recruiting. Then, this Note will present the challenges of regulating social media platforms due to free speech implications and the lack of a universally working definition of terrorism, especially with regard to the United States (“U.S.”) and France, countries that have traditionally placed a high value on the freedom of speech, then Russia and Turkey, countries that have traditionally placed a low value on the freedom of speech. This Note elaborates on these four countries because all are in the fight against terrorism on multiple fronts, including the regulation of ISIS narratives on social media platforms. Then, this Note will explore each country’s regulations in light of its respective value for the freedom of speech. After examining each country’s respective definition of terrorism and attempts to regulate online terrorist content, this Note will propose that the international framework should adopt the U.S.’s multistakeholder approach on internet governance and France’s definition of terrorism to minimize infringing on citizens’ free speech rights. As for specifically curbing ISIS incitement and recruitment, this Note suggests that internet governance of social media platforms through a multistakeholder approach must be accompanied by nuanced approaches in the form of both hard and soft law, that is, broadly speaking, both governmental measures and non-governmental measures.

I. TERRORISM AND SOCIAL MEDIA

“Unlike traditional media . . . in which only a [select group] of established institutions disseminates information[,] . . . social media [platforms] enable[] anyone to publish or access information [instantaneously].”8 This enabling power of social media platforms can give voice to those who traditionally had no platform on which to voice their opinions. However, this same enabling power can also be misused and give voice to those whose opinions, or specifically, extremist narratives, can do more harm than good.9

A. Social Media and Its Appeal

It is undeniable that social media has become a major platform on the Internet that allows users to view and share information in “real time.”10 Specifically, social media platforms in the form of social networks, such as Facebook, Twitter, and YouTube, enable its users to view any content they are interested in, and likewise, to share any content they are interested in with not only a limited audience of their choosing, but also with a global audience.11 Furthermore, social media platforms are appealing to users because of the ease with which users can share content, including, but not limited to, images, videos, or messages.12 This ease of sharing such content is facilitated by various factors such as the “accessibility” and “interactivity” of social media platforms and the little to no restrictions imposed on users when creating accounts or posting content.13

In addition to these advantages of social media platforms, there are also psychological aspects as to why users are drawn to social media platforms.14 By granting users nearly absolute discretion in posting about a subject matter of their own choosing, social media platforms encourage self-expression, which consequently promotes the user’s sense of self-affirmation.15 Also, social media platforms emphasize users’ “social connections”16 with seemingly like-minded people around the world when users are able to interact with other users by viewing status updates, tweets, or images and then “liking” or “commenting” on other users’ content.17 In other words, users are able to belong to niche communities that they might not have otherwise found outside of social media.18 Lastly, users may feel empowered on social media platforms because, unlike in traditional forms of media, where only a select group of people such as journalists or reporters have a voice, social media platforms allow anyone, from an ambitious teenager to a retired teacher, to have a say on the current affairs of the world.19

B. Social Media as a Platform for Terrorism

The “growth and communicative power”20 of social media platforms have not gone unnoticed by terrorist groups.21 Rather, terrorist groups have fully adopted the advantages of using social media platforms since these platforms “are by far the most popular with their intended audience, which allows [previously hidden] terrorist organizations to be part of the mainstream.”22 A chilling example of when terrorists began to realize how social media platforms can help disseminate their ideologies into the mainstream “was outlined in a jihadi online forum[, which] call[ed] for [a] ‘Facebook Invasion’”:

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† Janice Yu received her J.D. (Equivalent) from the Handong International Law School in 2017. She also received her B.S. from the University of California, Irvine in 2013.

1 Press Release, Security Council, Security Council Presidential Statement Seeks Counter-Terrorism Committee Proposal for ‘International Framework’ to Curb Incitement, Recruitment, U.N. Press Release SC/12355 (May 11, 2016) [hereinafter Press Release 2016] https://www.un.org/press/en/2016/sc12355.doc.htm.

2 See Gabriel Weimann, New Terrorism and New Media, WILSON CTR. COMMONS LAB 1, 3 (2014), https://www.wilsoncenter.org/sites/default/files/STIP_140501_new_terrorism_F.pdf.

3 See id. at 1–2.

4 See id. at 3.

5 Bruce Hoffman, Foreword to GABRIEL WEIMANN, TERRORISM IN CYBERSPACE: THE NEXT GENERATION at xi, xii (Woodrow Wilson Ctr. Press 2015).

6 See Press Release 2016, supra note 1.

7 S.C. Res. 2253, ¶ 22 (Dec. 17, 2015).

8 Weimann, supra note 2, at 2.

9 See Shannon Green, Changing the Narrative: Countering Violent Extremist Propaganda, CTR. FOR STRATEGIC & INT’L STUD. (Sept. 25, 2015), https://www.csis.org/analysis/changing-narrative-countering-violent-extremist-propaganda; Shaukat Warraich, Tackling Online Hate Requires a Collaborative Approach, HUFFPOST: THE BLOG (U.K.) (Apr. 5, 2017), http://www.huffingtonpost.co.uk/shaukat-warraich/tackling-online-haterequ_b_16392310.html.

10 See SOC. MEDIA GUYS, THE COMPLETE GUIDE TO SOCIAL MEDIA 14 (2010), https://rucreativebloggingfa13.files.wordpress.com/2013/09/completeguidetosocialmedia.pdf

11 Manasa Boggaram, 4 Ways to Reach a Global YouTube Audience, Promolta Blog, http://blog.promolta.com/4-ways-to-reach-global-youtube-audience/.

12 Catriona Pollard, Why Visual Content Is a Social Media Secret Weapon, HUFFPOST: THE BLOG (May 12, 2015, 6:08 PM), http://www.huffingtonpost.com/catriona-pollard/why-visual-content-is-a-s_b_7261876.html.

13 Farzana Parveen Tajudeen et al., Role of Social Media on Information Accessibility, 8 PAC. ASIA J. ASS’N FOR INFO. SYS. 33, 34–35 (2016) (discussing the “impact of social media on information accessibility” and how interactivity positively influences usage of social media in organizations).

14 See Catalina L. Toma & Jeffrey T. Hancock, Self-Affirmation Underlies Facebook Use, 39 PERSONALITY SOC. PSYCHOL. BULL. 321, 327–28 (2013), https://blogs.cornell.edu/socialmedialab/files/2014/01/2013-Toma-Hancock-Self-affirmation-underlies-Facebookuse.pdf (discussing self-affirmation theory, how self-affirmation functions work in everyday environments, and the revealing psychological factors underlying Facebook use).

15 See id. at 322.

16 Id. at 328.

17 See Social Media Best Practices, TUFTS UNIV. OFF. OF COMMC’NS & MKTG., http://communications.tufts.edu/marketing-and-branding/social-media-overview/social-media-best-practices/ (last visited Sept. 23, 2017).

18 See Larry Alton, Niche Social Networks Rise as Alternatives to Mainstream Platforms, SOC. MEDIA WK. (June 6, 2014), https://socialmediaweek.org/blog/2014/06/niche-social-networks-rise-alternatives-mainstream-platforms/.

19 Since the advent of social media platforms in 2002, social media has been increasingly successful in attracting users from all around the world. See The History of Social Networking, DIG. TRENDS (May 14, 2016, 6:00 AM), https://www.digitaltrends.com/features/thehistory-of-social-networking/. In the U.S. alone, there has been a nearly tenfold jump, from 7 percent in 2005 to 65 percent in 2015, in the number of adults who use social media platforms (76 percent of Americans in total use the Internet). Andrew Perrin, Social Media Usage: 2005-2015, PEW RES. CTR. 2 (Oct. 8, 2015), http://assets.pewresearch.org/wp-content/uploads/sites/14/2015/10/PI_2015-10-08_Social-Networking-Usage-2005-2015_FINAL.pdf. Research from 2016 shows that nearly 79 percent of online Americans use Facebook, 24 percent use Twitter, and 32 percent use Instagram. Shannon Greenwood et al., Social Media Update 2016, PEW RES. CTR. 3, 4 (Nov. 11, 2016), http://assets.pewresearch.org/wp-content/uploads/sites/14/2016/11/10132827/PI_2016.11.11_Social-Media-Update_FINAL.pdf. The number of social media users is expected to rise, not only in the U.S., but across the globe.

20 Hoffman, supra note 5, at xii.

21 See Weimann, supra note 2, at 2.

22 Id. at 3.