Ready, Aim, Send.
Is Social Media Today’s Newest Platform for Weaponry?: The Kurt Eichenwald Story
(This article has been edited and clipped for publication purposes; please visit @drossowlaw for full article)
April 2017©
By: Andrew L. Rossow, Esq.
You receive a Twitter message. You open it to find a still image with a “play” option. You hit play. All of a sudden, an image flashes at you, continuously, displaying the words, “YOU DESERVE A SEIZURE FOR YOUR POSTS!” Next thing you know, you regain consciousness after experiencing an eight-minute seizure. Who is responsible?
Not all weapons are tangible objects, such as guns and knives. Some can be as simple as the manipulation of a series of words or even a Graphic Interchange Format (GIF). Social media has been the millennial generation’s newest and quickest source of information, both real and “alternative”, giving society the power to communicate and exchange information over short and long distances.
But what happens when a social media platform such as Twitter is manipulated in such a way that it is then used to cause physical harm, or even deadly harm to another individual? What happens when a user sends a tweet, containing words, images, videos, and/or a GIF to a user who is a known epileptic, with the intent of causing them to experience a seizure or even die? Enter the pending case of United States vs. John Rayne Rivello, recently filed in the United States District Court for the Northern District of Texas.
A. Can the Use of a Social Media Platform Such as Twitter Be Modified in Such a Way That It Could Be Construed as a “Deadly Weapon?”
Distance does not, and should not change the analysis here. The effect is the same. The distinction to be made here is that the platform itself is not the weapon. It is the manner of use and/or the manipulation of that platform in such a way that it becomes an instrument of inflicting harm. The Rivello case which will set this distinction out, has roots reaching back to October 2016.
1. A Seizure Heard ‘Round the World: How a GIF Sent Via Twitter Induced a Seizure from Dallas Journalist, Kurt Eichenwald
Kurt Eichenwald, a Dallas journalist and senior writer with Newsweek, gained national attention back in October 2016, resulting from an article exploiting then, presidential candidate, Donald Trump’s conflicts of interest internationally as it pertained to allegations that Russia has manipulated U.S. information to gain political advantage. Resulting from critiques he was receiving in response to his article, Mr. Eichenwald then followed up with an article about how Donald Trump supporters attack journalists on a daily basis. He revealed publicly, that he has “intractable epilepsy.”
On December 15th, 2016, a Twitter user used the Twitter platform to send a GIF to Mr. Eichenwald, in hopes that he would experience a seizure and/or death. A GIF is an animated image that plays automatically upon receipt and only stops when the recipient clicks it to pause or stop it.
Mr. Eichenwald fell victim to the Twitter user, “@jew_goldstein”. The user sent a tweet to Mr. Eichenwald, containing a GIF of a flashing, strobing image playing the message, “YOU DESERVE A SEIZURE FOR YOUR POSTS.” The post, which has since been removed from Mr. Eichenwald’s account, caused Mr. Eichenwald to experience a seizure for approximately 8 minutes.
As of today, John Rayne Rivello, is currently in custody and being charged with federal cyberstalking and assault.
B. A States’ Point of View: Assault With a Deadly Tweet?”
The Texas Penal Code and Ohio Revised Code assault statutes are almost harmonious, therefore, the following legal analysis will be pursuant to the Ohio Revised Code (“Code”).
1. Did Mr. Rivello “Assault” Mr. Eichenwald When He Sent Him a GIF Through Twitter?
Under the Restatement (Second) of Torts, “an actor is subject to liability to another for assault if:
(a) He acts intending to cause a harmful or offensive contact with the person of the other…or an imminent apprehension of such a contact, and
(b) The other is thereby put in such imminent apprehension”
Restatement (Second) of Torts, emphasis added
Applying the Restatement to the case at hand, Mr. Rivello intended to send a GIF when he sent a tweet to Mr. Eichenwald, a known epileptic, containing a strobing message flashing, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”
Secondly, Mr. Rivello knew Mr. Eichenwald was epileptic based off Mr. Eichenwald’s prior announcement in a Newsweek article indicating he had epilepsy. Indeed, the information Twitter provided to law enforcement in response to the search warrant, revealed several of Mr. Rivello’s tweets indicating he knew Mr. Eichenwald was epileptic. The results further revealed that Mr. Rivello’s search history contained extensive research and visits to informational sites such as www.epilepsy.com explaining different triggers for seizures.
Lastly, Twitter’s default settings of video playback as it pertains to GIFS, automatically load and play the GIF without having the user click on it to load or play it. Consequently, when Mr. Eichenwald logged into his Twitter account, Mr. Rivello’s tweet, containing only the flashing GIF was the first thing he saw, to which he immediately experienced a seizure for approximately eight minutes.
In light of the foregoing, it appears that Mr. Rivello’s actions directed towards Mr. Eichenwald are likely to constitute assault under the Restatement. However, this conclusion is based off a very particular set of facts, such as this case. Not every tweet that verbally attacks another individual can be considered assault.
About the Author:
Andrew Rossow is a native from Dallas, Texas and a graduate from The University of Dayton School of Law. He attended Hofstra University School of Business in Hempstead, New York. His father, Mark, was a native of Dayton, Ohio, and as such, decided to attend and receive his J.D. from The University of Dayton School of Law. His practice focuses on Cyberspace Law and Criminal Defense.