Social Media as a Terrorist Platform? #ISIS #TwitterTerror

Entrepreneurs and social media businesses beware! If your communications platform is used to support terrorism, you could potentially be held liable. Twitter may be learning that lesson the hard way in light of a recent lawsuit filed against the social media giant.

Lloyd Fields was killed in Amman, Jordan during an ISIS-sponsored attack on November 9, 2015, while training Jordanian police. Tamara Fields, Lloyd’s widow, filed suit in the Northern District of California on January 13, 2016, claiming that Twitter knowingly permits ISIS to recruit new terrorists, fund terrorism, and spread propaganda.

ISIS’s use of Twitter is well-documented. The Brookings Institute published a study in 2015 focusing on the spread of the militant Islamic terrorist group on the worldwide social media platform. The Brookings study estimated that between September and December 2014, ISIS supporters used at least 46,000 unique Twitter accounts, although not all were concurrently active. The ISIS-supporting accounts had 1,000 followers each (on average) and were much more active than non-supporting accounts, some authoring as many as 150 to 200 tweets a day. The study found that most of ISIS’s successful Twitter activity came from between 500 and 2,000 accounts that tweet in high-volume amounts.

Tamara Fields’ suit presents a unique challenge to the rising tide of social media as a global communications platform. In an effort to promote social media innovation and “promote the continued development of the Internet and other interactive computer services,” Congress passed 47 U.S. Code § 230, entitled “Protection for Private Blocking and Screening of Offensive Material.” Colloquially, section 230 has become known as the Computer Decency Act. The Act states that “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.” Essentially, the Act precludes social media sites such as Twitter from liability for the content of user posts. This would seem to bar suits brought against Twitter for what ISIS posts on the social media platform.

However, Mrs. Fields’ suit is brought under 18 U.S. Code § 2339A and § 2339B of the Anti-Terrorism Act — “Providing Material Support to Terrorists” and “Providing Material Support or Resources to Designated Foreign Terrorist Organizations,” respectively. Under these sections, whoever knowingly or with willful blindness provides material support or resources to a terrorist organization is liable. Normally a purely criminal statute, Mrs. Fields’ case seeks to hold Twitter liable under these sections via § 2333A of the same act, which allows the criminal statutes to be applied in civil suits.

In a unique application of law, the suit is not attempting to hold Twitter accountable for ISIS’s speech, but rather for providing material support to terrorism. This would mean that Twitter potentially moves from merely a social media tool to an active participant in global terrorism use simply by providing its platform.

Many who have written about Fields’ case believe that the case either lacks merit or would be extremely difficult to prove. However, her claim may have more success than it at first appears. The Anti-Terrorism Act defines “material support and resources” as (among other things) a “service.” Twitter is a communication service provided by Twitter Inc. The lynchpins of this case are: 1) whether Twitter knowingly (or with willful blindness) provided this service to ISIS; and 2) whether Twitter’s activity was a substantial factor in Lloyd Fields’ death. With regard to the latter, it is possible from the Brookings’ Institute findings that Twitter contributed to the spread of ISIS by providing both a propaganda platform for recruiting and a way to privately message recruits. As to the former, Twitter may not be able to in good faith claim that they do not provide a service to a specific set of people (ISIS), when they provide the platform for free to everyone in the world. Anyone can sign up for a Twitter account, and the ISIS-led accounts may have apparently contributed to the spread of the terrorist group. Mrs. Fields’ arguments may have much more merit than many give them credit for. It remains to be seen whether the facts will support her claim enough to show that Twitter should be liable under the circumstances.

Should Fields’ suit prove successful, it could have far-reaching consequences for social media and the technology industry. If hosting terrorism-related content itself is considered the same as providing material support to terrorism, the enormous burden of policing user accounts and content will shift to the hosting site. Instead of relying on users to report terrorist activity, sites like Twitter and Facebook would likely need to actively screen such activity in order to prevent hosting the content and facing liability. This could lead to limited user expression, if certain posts must be “approved” before they are posted. Further, direct-messaging applications in social media would potentially have to be monitored for terrorist recruiting and communication.

In what may be an effort to stay ahead of public criticism, Twitter updated the “Twitter Rules” on December 31, 2015, to include a section addressing “hateful conduct.” This section delineates Twitter’s stance that while Twitter believes in freedom of expression and “speaking truth to power,” such ideals mean little if certain voices are silenced because of fear. Therefore, the Twitter Rules now prohibit speech that directly promotes violence, directly threatens other people, or incites harm against other people on the basis of race, national origin, and religious affiliation (among other bases).

Interestingly, Twitter’s tracking abilities may give the company an unprecedented ability to police their users’ accounts and posts. The identification of current popular subjects through features including hashtag trending (globally, regionally, and locally), hashtag searching, and suggested postings based on trending hashtags appears easy. Although these abilities seem to make it easy for Twitter to identify harmful content and remove it, in practice, complications exist. Take, for example, the “hashtag” feature on Twitter — should Twitter automatically flag all accounts that post “#ISIS” as a potential terrorist threat? Many news outlets use similar hashtags to bring attention to the news they post on social media. In fact, one prevalent use of Twitter is “hashtag activism,” where individuals who otherwise could not contribute to awareness of a subject use hashtags to bring attention to issues. Screening hashtags such as #ISIS may cut down on ISIS recruiting efforts, but also would limit the ability to increase the dialogue about ISIS from concerned global citizens. Plus, once terrorist groups figure out how a social media platform is tracking them, they will likely employ methods that attempt to avoid such tracking. If Twitter is found liable for providing material support to terrorism through its platform, tracking such activity may prove a daunting task.

Although the potentially massive burden of policing user communication will likely factor into the outcome of this case, it could represents a landmark decision in social media liability and should be closely monitored by users and businesses alike.

UPDATE: On February 5, 2016, Twitter announced that it had suspended over 125,000 accounts since mid-2015 for promoting or threatening terrorism. The announcement coincides with multiple reports that the Obama administration has begun to pressure social media companies to counter terrorist activity online. It is unclear whether this announcement is in response to the lawsuit filed against Twitter discussed above, or what effect it will have upon the pending litigation. — Noah Downs

Popularity of gTLDs

The volume of registrations in new gTLDs indicates that they are generating sustained interest on the part of consumers and brand owners. A review of the ten most-registered gTLDs to date provides some insight into the popularity of gTLDs:[1]

.xyz, with a current total of 864,685 domain registrations

.网址, with a current total of 342,087 domain registrations

.club, with a current total of 197,025 domain registrations

.berlin, with a current total of 153,414 domain registrations

.wang, with a current total of 139,287 domain registrations

.science, with a current total of 114,657 domain registrations

.link, with a current total of 104,869 domain registrations[2]

.realtor, with a current total of 95,934 domain registrations[3]

.top, with a current total of 83,270 domain registrations[4]

.nyc, with a current total of 74,839 domain registrations[5]

 

Visible growth is also occurring across subject categories. For example, the ten most popular city-specific gTLDs are:[6]

.berlin, with a current total of 153,414 domain registrations

.nyc, with a current total of 74,839 domain registrations

.london, with a current total of 58,901 domain registrations

.tokyo, with a current total of 35,855 domain registrations

.koeln, with a current total of 22,139 domain registrations

.hamburg, with a current total of 21,475 domain registrations

.moscow, with a current total of 17,322 domain registrations

.москва (Moscow), with a current total of 16,651 domain registrations

.paris, with a current total of 16,606 domain registrations

.vegas, with a current total of 13,951 domain registrations

The fifty-thousand foot view is also encouraging. As of April 16, 2015, there have been a total of 4,921,364 domain registrations for gTLDs, with an average of 14,662 new registrations per day over the last four weeks.[7]



[1] NameStat, https://namestat.org/ (last visited Apr. 16, 2015).

[2] An increase of 50,869 since December 2014. See Liam Andrew, The New gTLDs are Here! WooHoo!, Future Of News and Participatory Media (Apr. 7, 2015), http://partnews.brownbag.me/2015/04/07/the-new-gtlds-are-here-woohoo/.

[3] An increase of 6,934 since December 2014. See id.

[4] An increase of 47,270 since December 2014. See id.

[5] An increase of 12,839 since December 2014. See id.

[6] Top 10 Biggest Selling City TLDs, NameStat, https://namestat.org/s/top-city-tlds (last visited Apr. 16, 2015).

[7] New gTLD Summary, NameStat, https://namestat.org/s/newgtld-summary (last visited Apr. 16, 2015).

U.S. Trade Representative’s 2014 Notorious Markets Report Includes Domain Name Registrars

The U.S. Trade Representative recently released its 2014 Notorious Markets report identifying offline and online markets that deal in infringing goods or sustain global piracy and counterfeiting. For the first time, the Notorious Markets report identifies Internet domain name registrars as sources of piracy and counterfeiting.

Domain registrars are commercial entities which oversee the registration of Internet domain names. The 2014 Notorious Markets report notes that the industry as a whole requires greater scrutiny, and expressly names one of the largest members of the industry, Tucows, as a Notorious Market due to its inaction when notified of registrants’ infringing activity.  Inclusion of domain name registrars in the Notorious Markets report indicates that they could face increased pressure to adequately respond to infringing activity in the future. — Mary Witzel

For more information, see the U.S. Trade Representative’s 2014 Notorious Markets report:

2014 Out-of-Cycle Review of Notorious Markets

Brand Protection in the New gTLD Era

Take a moment and pull up your internet history from the last week. Look at the domain names listed in the history report. What do these websites have in common? Most sites have similar domain name configurations. Meme.com. News.net. Company.org. The .com, .net, and .org appendages are called Top Level Domains (TLDs), and until very recently, trademark protection strategies focused on acquiring a domain with one of these familiar TLDs (markholdersbrand.com, for example) and monitoring the creation of similar domains to guard against infringement. But the universe of possible TLDs has expanded over the last few years,[1] and trademark protection strategies designed to guard marks in the era of .com, .net, .gov, and .org may no longer be enough to properly protect a mark.

By some calculations, at least 571 websites are added to the internet every minute.[2] The endless creation of content has led to endless consumer confusion. Consumers are faced with the increasingly difficult task of wading through staggering amounts of information to find the results they need when conducting internet searches. The proposed solution to this confusion is a new system of generic Top Level Domains (gTLDs) – TLDs with unique configurations that can be tailored to identify a brand or a service.

A number of trademark owners are already utilizing the system by registering Brand TLDs with clear brand connections such as:[3]

 

.loreal                                      .walmart                      .mcdonalds

.mcd                                         .aarp                              .safeway

.heinz                                       .macys                           .bloomingdales

 

Brand TLDs account for over a third of all new gTLD applications,[4] and more than 600 businesses submitted applications for Brand TLDs in the last three years,[5] making it advantageous to register a Brand TLD as soon as possible. As with the protections afforded by trademark law, mark holders must take affirmative steps to register within the gTLD system in order to sufficiently protect their marks. Reluctance to take advantage of the new gTLD system exposes mark holders to the risk of having a competitor divert customers from the mark holder’s brand by being the first to register a brand-affiliated gTLD.

Notably, the customizability of gTLDs extends beyond the use of well-recognized brand names. A glance at the non-brand gTLDs that have already been registered with the Internet Corporation for Assigned Names and Numbers (ICANN) shows a wide range of products and services:[6]

 

.accountants                            .agency                        .baby

.bargains                                  .beer                            .best

.blackfriday                             .buy                             .core

.careers                                    .charity                       .cheap

.clinic                                       .clothing                      .college

.company                               .coupon(s)                 .contractors

.deal(s)                                    .diet                              .discount

.doctor                                     .earth                          .eco

.email                                       .family                        .fit(ness)

.finance                                   .financial                    .flights

.free                                         .gift(s)                          .global

.gripe                                       .hair                              .health(care)

.help                                        .holiday                        .home(s)

.hotel                                       .house                          .international

.investments                         .kid(s)                          .kitchen

.latino                                      .life(style)                   .live

.living                                      .london                         .luxury

.management                       .market(ing)               .medical

.network                                  .news                            .nyc

.organic                                   .paris                             .photography

.pizza                                        .promo                          .properties

.protection                              .qpon                            .restaurant

.review(s)                                .rocks                            .room

.safe(ty)                                   .sale                               .scholarships

.school                                     .secure(ity)                 .services

.shop(ping)                             .social                          .store

.sucks                                        .supply(ies)                .tokyo

.website                                    .wedding                     .wtf

 

 

In order to properly protect their valuable brands, mark holders must be aware of the different flavor of infringement that can occur with non-brand gTLDs. With Brand gTLDs, a mark holder’s primary concern is being the first in line to secure a gTLD affiliated with the brand. Brand gTLDs registered to the mark holder give the mark holder control over content to the left of the TLD, and thus, Brand gTLD owners can veto the creation of domains such as horrible.markholdersbrand.[7] With more common gTLDs such as the gTLDs listed above, the primary concern is cybersquatting.[8] Trademark infringement can occur to the left of the gTLD in non-brand gTLDs, leading to domain names such as markholdersbrand.sucks, or markholdersbrand.wtf.

Fortunately, the gTLD system is designed to give legitimate mark holders the first bite of the apple. Under the system, all gTLDs have a mandatory “sunrise” registration phase in which mark holders can register domain names corresponding to their marks before registration for those gTLDs is made available to the public.[9] The sunrise phase thus gives a mark holder priority in registering markholdersbrand.store, or markholdersbrand.sale. If a mark holder submits the only application for markholdersbrand.store during the sunrise phase, the gTLD will be allocated to the mark holder. If multiple applications are submitted for markholdersbrand.store during the sunrise phase, an auction is held, and the Brand gTLD is allocated to the highest bidder among the applicants.

Other safeguards exist to ensure that no infringing gTLDs are registered in the registration periods that follow the sunrise phase. The Trademark Clearinghouse is a database of verified, registered trademarks designed to assist mark holders in preventing the creation of infringing domain names.[10] Registration of a trademark with the Trademark Clearinghouse gives registrants access to the Trademark Claims Service.[11] The Claims Service notifies other applicants who attempt to register a domain name that matches a mark already in the Clearinghouse, and notifies registrants when domain names are registered that match their marks.[12] Each gTLD is provided with this service during the first 90 days in which a gTLD is generally available to the public.[13] After this 90 day period, Clearinghouse clients can elect to continue receiving notifications indefinitely at no extra cost.[14]

Rights registered with the Clearinghouse must be an identical match to a right already owned by the mark holder, and proof of current use of the mark is required for registration to be granted.[15] The registration fee varies depending on how many years of recordation are sought and how many marks are being registered.[16] The Clearinghouse provides mark holders with registration renewal reminders, and serves to grant mark holders access to Registration Block Lists that list registration with the Trademark Clearinghouse as a prerequisite.[17] These Registration Block Lists provide preemptive blocking services that block registration of domains that match or contain an eligible trademark.[18]

The takeaway? If you have an online presence, or wish to have an online presence, it is no longer enough to register a domain name within the one-dimensional universe of traditional TLDs and patrol .com, .net, and .org domains for trademark infringement. Instead, to properly protect your brands in the new gTLD era, you need a multifaceted strategy that encompasses defensive registration, consideration of the differences between Brand gTLDs and more common gTLDs, active monitoring, and affirmative measures against infringement.

We can assist you in crafting a multifaceted protection strategy by creating an action plan for gTLD registration, guiding you through the registration process, ensuring your mark receives the full benefits of Trademark Clearinghouse registration, and recommending and facilitating the use of Registration Block List services where appropriate. Contact us today to ensure that you get the first bite of the apple and fully protect your brands in the new gTLD era. — Mary Witzel



[1] See New gTLD Statistics, Top Level Domains, http://ntldstats.com/tld (last visited Dec. 16, 2014). [2] Neil Spencer, How Much Data is Created Every Minute? Visual News (June 19, 2012), http://www.visualnews.com/2012/06/19/how-much-data-created-every-minute/ [3] International Trademark Association, Brand Protection and the Trademark Clearinghouse (Dec. 10, 2014), slide 14. [4] Elisa Cooper, Brand Applications Account for One Third of All New gTLD Applications, MarkMonitor (June 13, 2012), https://www.markmonitor.com/mmblog/brand-applications-account-for-one-third-of-all-new-gtld-applications/. [5] Jason Loyer, Brand TLDs: Four Reasons To Move From .COM To Your .BRAND, Neustar (July 11, 2014) http://www.neustar.biz/blog/four-reasons-to-move-from-com-to-your-brand. [6] International Trademark Association, supra note 3 at slide 15. [7] dot.Brand gTLDs – Brand TLD Benefits, New gTLDs, http://www.newgtldsite.com/dot-brand-gtlds-brand-tld-benefits/ (last visited Dec. 16, 2014). [8] Bill Donahue, 4 Tips For Protecting Brands In The New World Of GTLDs, Law360 (Apr. 8, 2014), http://www.law360.com/articles/526203/4-tips-for-protecting-brands-in-the-new-world-of-gtlds. [9] Trademark Clearinghouse FAQs, ICANN, http://newgtlds.icann.org/en/about/trademark-clearinghouse/faqs (last visited Dec. 16, 2014). [10] Id. [11] Trademark Claims Service, Clearinghouse, http://www.trademark-clearinghouse.com/content/trademark-claims-services (last visited Dec. 16, 2014). [12] Id. [13] Id. [14] Id. [15] Trademark Clearinghouse FAQs, supra note 9. [16] Clearinghouse, Fee Structure Summary (Jan. 21, 2013), available at http://trademark-clearinghouse.com/sites/default/files/files/downloads/TMCH_fees_detailed.pdf [17] See Donuts and TLDs, Donuts, http://donuts.co/ (last visited Dec. 16, 2014). [18] See id.

Protecting Your Trademarks in the New Age of Domains Names

As you may know, the Internet Corporation for Assigned Names and Numbers (ICANN) recently decided to open up more than 1,000 domains outside of the .com, .net, and .biz variety. Many new domains are now available and more are coming online every day. As we discussed late last year, these new domains provide both opportunity and potential problems for your business.

The new domains are beneficial because they allow you to register simpler domain names. Simpler domain names are easier to remember and thus easier to find. For example, a coffee house in Las Vegas might currently have the domain name “coffeeshoplasvegas.com” but could now register the domain name “coffee.vegas.” Further, many of the new domains are industry specific, such as .build, .contractors, and .travel. Thus, a business will now be able to alert the public of its industry using its domain name.

Although there are benefits, these new domains also provide more opportunities for cybersquatting and greatly expand the potential for trademark infringement. Now that all the information regarding these new domains is available, we have researched exactly how you should protect your brand from trademark infringement. We would be happy to help you develop a strategy for protecting your trademarks while also efficiently and effectively defending your brand.

To protect your trademarks, best practices suggest you register with ICANN’s Trademark Clearinghouse. The Trademark Clearinghouse is a centralized database that provides protection to registered trademarks. Once you have registered, Trademark Clearinghouse will notify you when a third-party registers a domain name that matches your trademark. You will then be able to have that domain taken down. Unfortunately, the Trademark Clearinghouse will only alert you to domain names that are an exact match to your trademark. An exact match may include domain names that have asterisks or hyphens (even if your trademark does not contain asterisks or hyphens), but would not include domain names that are spelled differently. It will therefore still be necessary to investigate potentially infringing domain names using resources such as namedroppers.com.

Although the Trademark Clearinghouse only protects against exact matches, it allows trademark holders to register with only one database, as opposed to registering their trademarks with many databases as new domains are launched. It is therefore more convenient and cost effective for trademark holders to register with the Trademark Clearinghouse. The Trademark Clearinghouse also gives registered trademark owners first priority in registering when new domains become available. The cost for registering with the Trademark Clearinghouse varies depending on how many trademarks a business registers. ICANN gives a discount to businesses registering multiple trademarks, with the discount growing larger as the number of trademark registrations increases. If you are interested in pursuing registration with the Trademark Clearinghouse, we can investigate further your exact costs.

To further protect your trademarks, you may also register with Donuts.co. Donuts.co is one of the largest registries for new domain names, having applied with ICANN for 307 new top-level domain names. Registration with Donuts.co requires that you first register your trademark with the Trademark Clearinghouse. The advantage to registering with Donuts.co is that they immediately block domain names containing your trademark (and thus you would not have to go through the process of receiving a notification and then getting the infringing domain taken down). Donuts.co also blocks domain names that contain your trademark within the domain name. For example, if Apple registered its trademark with Donuts.co, and someone later tried to purchase “myapple.computer,” Donuts.co would block that registration since the domain name includes Apple’s protected trademark. However, Donuts.co does not protect against spelling variations; thus, Donuts.co would not prevent someone from registering “myaple.computer.” If you are considering registration with Donuts.co, we can discuss exactly which marks should receive this extra level of protection and help you with the registration process.

Please contact us if there is anything we can do to assist you in registering your trademarks with either the Trademark Clearinghouse or Donuts.co. We would be happy to address any questions or concerns you may have regarding this process.