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 on the floor listening to your significant other calling the police because you just experienced a seizure…from a tweet. 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 “fake”, 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? Should these manipulated behaviors be regulated? Victims of social media crimes such as cyberbullying and stalking would most likely answer in the affirmative. As of late, Kurt Eichenwald, a Dallas journalist and senior editor with Newsweek, would answer abruptly in the affirmative.
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.
Is a tweet a ‘deadly weapon’?
Not all weapons are tangible items like a gun or a knife. 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.
A seizure heard ‘round the world
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, 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.” However, he pointed out that one pro-Trump supporter, or “deplorable”, took a potentially dangerous step further. Eichenwald, explained that he had received a tweet from a Twitter user with the Twitter handle “@Mike’s Deplorable AF” which referenced his known seizures and included a small video of Pepe the Frog, a cartoon character that has been identified as a hate symbol. Logged into his Twitter account on his iPad, Eichenwald hit the play button on the still video which opened to a “sort of strobe light, with flashing circles and images of Pepe flying toward the screen.” Luckily, he was standing and dropped the iPad to the ground, avoiding any potential trigger of a seizure.” Eichenwald made note that this [was] not the first time a journalist such as himself has been targeted by a ‘deplorable’, but indicated that [he] would be extra careful and not push play on any unsolicited videos he receives.”
On December 15th, 2016, another attempt made, later revealed to have been successful, centered around another Twitter user who used Twitter to send a GIF to 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. Eichenwald revealed the nature of what happened, to the best of his recollection, on Good Morning America with George Stephanopoulos.
Eichenwald fell victim to the Twitter user, “@jew_goldstein”, a “deplorable.” The user sent a tweet to 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 Eichenwald’s account, caused Eichenwald to experience a seizure, where his wife found him on their bathroom floor. At that point, his wife took a screen shot of the GIF, although when depicted below, is shown to simply be a still image. According to reports, Eichenwald was bed-ridden for 24 hours and was unlikely to drive for months.
Credit: MediaIte; Twitter (now removed from the account)
In response to the user’s tweet, Eichenwald’s wife sent out a tweet from his profile announcing that her husband had indeed suffered a seizure and the account information was being turned over to the police for potential claims of assault. Since the incident, Eichenwald had for safety reasons, decided to take a short break from Twitter to spend time with law enforcement and lawyers to see if he could go after the individual behind the account, which took away from one of his main responsibilities of working for Newsweek.
As of today, the user behind the Twitter account has been identified as John Rayne Rivello, living in Maryland. He currently in custody and suspended from Twitter indefinitely. Eichenwald has been working with law enforcement and lawyers pursuing the now active case against Rivello. As of late, the Criminal Complaint was unsealed and made available to the public.
Did Rivello ‘cyberstalk’ Eichenwald
The Complaint filed on March 10th, 2017, charged Rivello under the federal cyberstalking statute (“Statute”). The Statute reads as follows:
(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with the intent to kill, injure, harass, or intimidate another person, uses…an interactive computer service or electronic communication service…to engage in a course of conduct that—
(A) places that person in reasonable fear of the death of or serious bodily injury to…that person, an immediate family member of that person, or a spouse or intimate partner of that person or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in (A)
shall be punished as provided in section 2261(b) of this title.
– 18 U.S.C. §2261(A)(2)(A)/(B).
What was the intent?
The issue in this case is whether Rivello had sufficient ‘criminal intent’ to cyber stalk Eichenwald? Generally, criminal intent refers to a “criminal or wrongful purpose.”
First, Rivello created a fake Twitter account on or around December 11th, 2016. By using the fake username “AriGoldstein@jew_goldstein”, or shortened on Twitter as “@jew_goldstein”, he was able to contact Eichenwald. In response to law enforcement’s search warrant, Twitter produced the following messages from Rivello’s Twitter account:
- December 13th, 2016 – “[ Eichenwald] deserves to have his liver pecked out by a pack of emus”
- December 16th, 2016 at 1:42 p.m. –“I hope this sends him into a seizure”
- December 16th, 2016 at 2:30 p.m. –“Spammed this at [Eichenwald], let’s see if he dies”
- December 16th, 2016 at 5:00 p.m. –“I know he has epilepsy”
- December 16th, 2016 at 5:30 p.m. –“If I haven’t been banned yet, check my feed when you wake up. @[Eichenwald]”.
It appears that from these messages, these messages depict Rivello’s intent to cause serious physical harm to Eichenwald, mentioning to other Twitter users in direct/private messages that he hopes his message(s) causes him to go into a seizure, or die. Furthermore, the messages indicate that Rivello knew that Eichenwald was epileptic, and despite Rivello’s potential to be banned from Twitter, continued to send similar messages out to the public.
What is Twitter under the law?
The second element of the Statute requires the use of “any interactive computer service or electronic communication service.” Rivello used the social networking platform, Twitter to contact Eichenwald. Twitter is a free-access social media platform/dashboard that allows users with Twitter accounts to create, share, and read 140-character messages called “tweets”. During the registration process, a user must create a unique Twitter username, also known as a “Twitter Handle”, indicated by the “@” followed by their username. Users are able to “favorite” or like other messages, “retweet” or share other messages, and even reply to the tweets of other users. Additionally, users can directly tweet to or send a message directly to the page of the recipient user by starting their tweet off with the “@” and typing the intended recipients’ username. Lastly, a user can also send a direct message or privately message another user, which appears in their inbox, rather than their public page, so long as they have not been blocked by Twitter or that user.
Users can also embed visual files, such as photographs or still images in their tweets. These files can include animated or moving images known as GIFS. Unlike Facebook or Instagram where you can click the GIF to play it, by default, Twitter will automatically play the GIF when the recipient hovers over it or simply views it on the page. Based off the site’s guidelines and terms of service, it appears that Twitter would most likely fall under the statute’s definition of an interactive computer service or electronic communication service.
Rivello’s course of conduct
The third element of the Statute requires an individual to have engaged in a “course of conduct” while using a service such as Twitter. The Statute further defines course of conduct as a “pattern of conduct composed of two or more acts, evidencing a continuity of purpose.”
Looking at the results of the search warrant Twitter provided to law enforcement and the Prosecution, Rivello contacted Eichenwald at a minimum of five times, with the same tone and goals in mind. Rivello used Twitter, to create a fake account registered under the Twitter handle @jew_goldstein.
Rivello then composed and sent messages that included both words and a GIF directly to Eichenwald’s Twitter page. At the same time, Rivello had composed and sent messages to other users informing them to “follow” the prior tweets he had sent. He then sent a tweet informing all of his followers to check his Twitter feed, or history to see all the previous tweets he had sent to Eichenwald’s page.
Next, Rivello took it a step further and visited the official epilepsy website at www.epilepsy.com to find out statistics and triggers for seizures. It was this point that he had created a fake Wikipedia page for Eichenwald, altering the obituary date of death to show December 16th, 2017, the day after the GIF was sent to Eichenwald.
After viewing some of Rivello’s actions and messages sent out on Twitter, it is likely that this was not an isolated event, but many steps taken in hopes of inducing a seizure from Eichenwald.
‘Reasonable fear of death or serious bodily injury’
The fourth element of the Statute looks at whether Rivello’s conduct “placed [Eichenwald] in reasonable fear of death or serious bodily injury.” Due to Eichenwald’s publicity and verified Twitter profile page, he receives thousands of tweets, comments, and critiques on his page daily. While Rivello could argue that Eichenwald should have known something like this was coming, due to the incoming flood of messages not just from him, but from other users, it would seem unlikely that the GIF placed Eichenwald in reasonable fear of death or serious bodily injury, simply because he could argue he had no idea this particular threat was coming.
However, as this relates to Eichenwald’s wife, the analysis could change. Applying this same element when either his wife witnessed her husband experiencing a seizure, or after Eichenwald became conscious, it would appear possible that his wife could have thought her husband was going to die, as she watched him fall to the floor. Upon Eichenwald regaining consciousness, it could be argued that it was likely that Eichenwald was placed in reasonable fear of death. Indeed, it’s also likely that he was placed in fear of serious bodily injury, because after viewing the GIF, he experienced a seizure that lasted for approximately eight minutes. His wife explained to law enforcement that he experienced a complete loss of his bodily functions and mental faculties, as he had no recollection of the incident other than waking up on the bathroom floor with his wife holding him.
While part of his job with Newsweek is to actively use Twitter to share and communicate relevant information, Eichenwald told Good Morning America that [he] has continued to experience impairment to [his] bodily functions and mental faculties, as [he] is careful on the length of time [he] [drives] and how often [he] spends on Twitter. Eichenwald’s neurologist informed sources that because of this seizure, Eichenwald could experience other seizures in the near future.
Lastly, the Statute indicates that crimes falling under this section, could subject an individual like Rivello to imprisonment, ranging from 10-20 years. While briefly set out, the Statute seems adequate enough in addressing a scenario such as this.
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”).
Under the Restatement (Second) of Torts, “an actor is subject to liability to another for assault if:
- 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
- The other is thereby put in such imminent apprehension”
- Restatement (Second) of Torts, emphasis added
Applying the Restatement to the case at hand, Rivello intended to send a GIF when he sent a tweet to Eichenwald, a known epileptic, containing a strobing message flashing, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”
Secondly, Rivello knew Eichenwald was epileptic based off 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 Rivello’s tweets indicating he knew Eichenwald was epileptic. The results further revealed that 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 Eichenwald logged into his Twitter account, 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 Rivello’s actions directed towards 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.
Felonious assault under Ohio’s code
In Ohio, felonious assault is a second-degree felony with a prison sentence anywhere from 2-8 years. The statute reads as follows:
- No person shall knowingly do either of the following:
- Cause serious physical harm to another;
- Cause or attempt to cause physical harm to another…by means of a deadly weapon or dangerous ordnance.
As discussed earlier in the article, Rivello knowingly caused serious physical harm to Eichenwald by inducing approximately an eight-minute seizure when he used Twitter to send a tweet containing a GIF of a flashing strobe message to an individual who he knew was epileptic. Indeed, it is likely that Rivello could be charged with felonious assault under Ohio’s Revised Code.
Aggravated assault under Ohio’s code
In Ohio, aggravated assault, is a fourth-degree felony and has a potential prison sentence of 6-12 months. The statute reads as follows:
- No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:
- Cause serious physical harm to another…;
- Cause or attempt to cause physical harm to another…by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code.
Similar to Ohio, except for the degree, in Texas, aggravated assault is a second-degree felony, with possible imprisonment from 2 – 20 years and/or a fine of up to $10,000. Attorney Keith Lee has published a series of blog posts on his blog, “The Associate’s Mind,” discussing the Rivello case, entitling his six-part series, “Assault With a Deadly Tweet.” Texas categorizes a “deadly weapon” into two categories: weapons by design and weapons by manner of use.
Under the Penal Code, a deadly weapon by design includes a (1) firearm and/or (2) anything specifically made to cause death or serious bodily injury. A weapon can also be considered deadly based off the manner in which it is used. This includes (1) anything that is used in a manner that is capable of causing death or serious bodily harm and/or (2) objects one would not ordinarily think to be considered weapons.
The purpose or design of these objects is not to hurt another individual, but if manipulated in such a way, can cause serious bodily harm or death to another. For example, these objects could include a pillow, glass bottle, golf club, hammer, car, or even a person’s hands. Historically, Texas courts have held belt-buckles, dustpans, the floor, a hand, and underpants as deadly weapons.
When social media platforms such as Twitter are manipulated in a way outside of its intended design and purpose to then inflict serious bodily harm or deadly harm upon another, the platform then has the potential for being construed as a deadly weapon. This case illustrates a scenario where in limited circumstances, a person could be found guilty of felonious assault for using Twitter in a particular way that removes the “distance of the parties” argument.
Has social media become the next platform for cyber warfare?
Words do cause harm, sometimes, they can even cause physical harm or even deadly harm to another. We have seen proof of the potential harm electronic messages can cause over the years. It started with one of the very first cases of cyberbullying, Monica Lewinsky. While the gossip, rumors, and soon to be admitted truth of former President Clinton and Ms. Lewinsky’s infamous affair was spread across dial-up internet, it still reached the population of the entire country, causing harm and damage to both Ms. Lewinsky and former President Clinton, still to this day. The Rivello case presents several questions as to how social media platforms are used to commit crimes against another.
First, how narrowly does this particular analysis apply? Will the holding of this case apply specifically to a situation where someone uses a GIF or video posted on social media to exploit another’s pre-existing medical condition, such as Eichenwald’s?
Secondly, the next step is to look to the jurisdiction of where the harm is being transmitted to, and the effect of the harm being communicated to the recipient. While a minimum contacts analysis is used to determine the jurisdiction for most crimes, the analysis differs when it comes to crimes taking place in cyberspace. It becomes difficult to determine the jurisdiction of a state court when you have two parties from different states conducting activities through electronic mediums such as smartphones and computers. In cyberspace, the Effects Principle is used. Under the Effects Principle, we would simply look to the effect of the harm and how frequent the transmission(s) occurred.
Next, how has the social media platform been manipulated? The social media platform itself is not a weapon. By design, Twitter’s only purpose is to share, exchange, and communicate information (words, audio, images, videos) across a community of users. In the Rivello case, Rivello took substantial steps in manipulating the design and purpose of Twitter from simply communicating and sharing information, to using Twitter to exploit Eichenwald’s epilepsy for public show.
Finally, the analysis ends with the characteristics of the potential victim. Eichenwald was a known epileptic who was known for his articles, critiques, and interviews in the media. By conducting background information on a potential victim, a perpetrator has a better chance of unlocking and understanding the potentially fragile nature of their victim.
What defenses, if any, does Rivello have available?
Does the First Amendment shield Rivello’s messages to Eichenwald?
The U.S. Constitution gives every citizen the freedom to speak their mind, so long as it does not constitute certain types of speech, such as hate speech. (This is only one of the exceptions to the First Amendment protections to Free Speech; these are used simply for relevance to the particular scenario.) Hate speech is…any form of intimidation…that [is] most likely to inspire fear of bodily harm. In an ordinary case, the standard of care a court will look to is that of a reasonable person in like or similar circumstances. However, in this case, the standard of care shifts to that of a person in like or similar circumstances who suffers from epilepsy.
Congress shall make no law…prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press… – S. Constitution, First Amendment
It appears from this case, that Rivello would not be shielded under the First Amendment because the tweet could be considered hate speech. The GIF was created and sent to Eichenwald with the purpose of causing the fear of potentially having a seizure. While words alone cannot make anyone do something, a person who may not have complete control over their physical impairment(s), the analysis changes.
Did Eichenwald assume the risk of receiving any form of a message?
Assumption of risk refers to situations in which an individual acknowledges the risks associated with any activity, but chooses to take part regardless. In other words, the individual knew the activity could result in a particular end result, but decided to proceed with it regardless.
Rivello could first argue that Eichenwald assumed the risk of being exposed to potentially dangerous tweets such as his own because of his public status as a reporter and the nature of his job which invites critiques and unsolicited messages at times. However, Rivello could rebut that on the basis that maintaining an active social media account as part of their daily reporting routine journalist does not automatically subject the individual to the infinite number of potential solicitations or unsolicited messages.
Rivello could next argue that he was not the only one to send Eichenwald messages of this kind and he should have known that because of his criticized articles and/or interviews with the media, that he was bound to receive a similarly-styled unsolicited message from the general public. To counter, while the nature of Eichenwald’s job requires him to maintain an active online presence, that does not at the same time, open every door to every possible risk that may present itself online in the realm of social media. Eichenwald has a large number of followers on Twitter that it is almost impossible for him to predict each and every result of reading every tweet and/or message he receives.
While Rivello’s argument seems logical, it does not seem likely that Eichenwald could be said to have invited himself into a situation where he assumed the risk of suffering a seizure because he logged into his account and viewed tweets he receives on a daily basis.
Is Twitter liable
Section 230 of the Communication Decency Act (“CDA”) states that “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider”. Put differently, a social media platform such as Twitter cannot be held liable for the content its users publish or send out on a daily basis.
While the CDA is quite clear, Rivello could argue that Twitter should be held liable under the CDA because it violated its continuing obligation to monitor its platform to ensure users comply with its Terms and Service, or simply, did not do enough. If that argument were to stand, Rivello could potentially argue that Twitter should be the Defendant in the lawsuit, not him, to which Twitter should be joined as a necessary and indispensable party. However, both Eichenwald and Twitter could argue that Twitter has policies in place that set the parameters for which its service should and should not be used for; that there is no way for Twitter to actively monitor each and every post for content that potentially violates the Terms and Services.
Twitter, if joined as a party in the lawsuit, could argue that under the CDA, it is a provider and/or an interactive computer service. While it does take steps in monitoring heavily reported accounts or for certain posts that post topics or keywords that have been flagged for certain keywords, for all intents and purposes, its platform is populated by users around the globe, and it would be next to impossible to monitor every single user throughout any given day. For example, Twitter for some time now has been taking GIFs and converting them into a .mp4 format before posting it. This allows for the user or recipient of a video to choose to play the video without the risk of it playing undesired content. It is likely that Twitter would succeed under the safe-harbor provisions of the CDA.
Case Study: Pokemon Shock
Today’s millennial generation grew up with one of the hottest animated cartoons of all time, Pokémon. However, one episode in Japan was removed from the air as a result of reports that young viewers were experiencing seizures and temporary blindness. The episode, entitled, “Electric Soldier Porygon”, or known internationally as “Computer Warrior Porygon,” depicted Pikachu, a yellow-moused Pokémon with electric abilities, using his lightning attack to blow up some virtual missiles in a cyber-space environment. However, since the episode was taking place in cyberspace, the animators did not think a regular explosion would do the trick. Instead, the animators used a rapidly-strobing technique that flashed red and blue lights on the screen, making the explosions look more “virtual”. Reports indicated that as a result of this episode, there was a connection between the flashing, strobes on the television and viewers who suffered from certain physical impairments such as epilepsy. Health professionals reported that it was a combination of the strobe lighting effects along with the popularity of the program. Sources claimed that around 1 in 4,000 people are vulnerable to photosensitive seizures and other health issues. Japan labeled the incident as “Pokemon Shock.”
Warning: This YouTube link goes to this segment of the banned episode.If you suffer from epilepsy or a similar condition involving photo-sensitivity or potential for seizures, do not click on the YouTube link.
How could this case be applied in the future
The holding of this case could potentially dictate in limited instances, how an individual could be guilty of assault simply by modifying the intended use of a platform such as Twitter, to cause physical harm or even deadly harm to another individual. This case provides a situation where a social media platform was modified into being used as an instrument for psychological warfare through cyberspace.
The term “users” used throughout this article refers to all individuals with a registered Twitter username and uses the service to communicate and exchange information.