Defending the right of humanitarian aid organizations to operate in conflict zones without risk of unfair application of the Anti-Terrorism Act, a Freshfields team of litigators represented InterAction and Charity & Security Network, both of which are composed of nonprofits and humanitarian aid organizations, in filing an amicus brief in Twitter, Inc. v. Taamneh. The brief urges the US Supreme Court to reject the Ninth Circuit’s expansive reading of aiding-and-abetting liability under the Anti-Terrorism Act because it risks crippling vital humanitarian and development work that non-governmental organizations (NGOs) perform in the world’s most fragile states. During oral argument on Feb 22. 2023, Justice Brett Kavanaugh cited Freshfields’ brief, stating that it raised serious arguments grounded in “sincere” concerns that the Act would hobble humanitarian aid.
The case explores whether a social-media platform aids and abets foreign terrorist organizations, in violation of the Anti-Terrorism Act, by failing to take meaningful efforts to prevent terrorists from using their social media platforms. The plaintiffs — victims of a nightclub attack in Turkey, for which ISIS claimed responsibility — sued social media companies for allegedly aiding and abetting the attack by facilitating ISIS recruiting on their social-media platforms. The Ninth Circuit held that the plaintiffs alleged a plausible aiding-and-abetting claim. The Supreme Court will now decide whether the social-media companies’ conduct meets one of the key requirements for aiding and abetting: “knowingly” providing “substantial assistance.”
Freshfields’ amicus brief cautions that reading the Anti-Terrorism Act’s aiding-and-abetting provision broadly would hinder NGOs. If the aid that such entities provide could be seen as unlawful aiding and abetting merely because some portion of it ends up in the hands of terrorists — even if the aid is not tied to any specific terrorist act — NGOs may curtail their humanitarian efforts for fear of facing treble damages under the Act. Not only would such a result harm blameless recipients of aid in war-torn and impoverished countries, but it could help foster terrorism by further destabilizing those regions. At oral argument, Deputy Solicitor General Edwin Kneedler, presenting the United States’ position, urged the Court not to read the Act as “inhibit[ing] legitimate and important activities,” including those of “charities.” In questioning plaintiffs’ counsel, Justice Kavanaugh acknowledged the argument set forth in Freshfields’ brief, highlighting that under plaintiffs’ vast aiding-and-abetting theory, “humanitarian and charitable organizations are going to be caught up” in Anti-Terrorism Act liability without “fair notice” of Congress’s intent to impose such a “major sanction.”
The full brief, filed on Dec. 6, 2022, can be found here.