If a person can come to actual, physical harm by looking at a particular image, and you deliberately present such an image to that person knowing this could happen, can you be held criminally responsible?
We're about to find out if animated images can be classified as "deadly weapons." Combative journalist Kurt Eichenwald, a loud critic of President Donald Trump and his supporters, went toe-to-toe with Tucker Carlson on Fox News back in December. As is normal in the state of social media these days, he found himself the focus of angry tweets from those who disagreed with him.
But Eichenwald is also very open and has written about the fact that he is epileptic and susceptible to seizures. After the December appearance, Eichenwald claimed somebody tweeted to him a flashy animated GIF designed for the purpose of provoking a seizure. (It literally had the text "You deserve a seizure for your posts" on it). Furthermore, Eichenwald claimed that the GIF succeeded. The flashing colors prompted a seizure. After he recovered, he filed a criminal complaint in Texas in the hopes of tracking down the culprit.
It looks like authorities have succeeded. A grand jury in Texas has indicted a Maryland man named John Rayne Rivello of "aggravated assault with a deadly weapon" for tweeting the offending GIF. And an FBI agent has filed a complaint accusing Rivello of violating federal cyberstalking laws.
Let's, at least for the purposes of analyzing the underlying concerns with this case, set aside the politics and personalities involved. We need to do that because Eichenwald's behavior in the interview that prompted the "attack" was notably absurd—revolving around an unsubstantiated claim that Trump had been institutionalized in the 1990s. Whether Eichenwald is a person to be treated seriously shouldn't be the issue here.
Is Rivello legally responsible if an image that never even physically comes into contact with Eichenwald triggers a harmful reaction? Even if Rivello was actually hoping a seizure would happen (and the evidence presented by the Justice Department, if true, suggests Rivello had actually investigated how to trigger an epileptic seizure)? NBC talked to a defense lawyer who hadn't heard of a similar case in the past:
"I'm unaware of anybody being criminally prosecuted for this," defense attorney Tor Ekeland, who represents clients accused of federal cyber crimes, told NBC News. "If it's not the first time, it's one of the first times this has happened."
Ekeland, who is not involved in the case, noted that Rivello is being charged with a federal cyberstalking law that is frequently the subject of criticism from First Amendment advocates. The law criminalizes using electronic communication "with the intent to kill, injure, harass, [or] intimidate" a victim, but it's typically used in relation to images (like revenge porn) or speech (like emailed death threats).
What's likely unprecedented about this case is that Rivello's tweeted GIF is considered an assault weapon.
"Here they're saying you used the internet as a weapon that causes physical harm," said Ekeland. "You're in different territory, because that's at least something you can have concrete testimony and evidence of, rather than squishy emotions and 'Gee, I felt bad.'"
But there's still the matter than when you come at somebody with a knife, it's easy for prosecutors to make the case that you were obviously attempting to cause physical harm. The slippery slope here is that Rivello is potentially being held responsible for an unusual reaction to a stimulus that would normally be classified as speech, and only due to Eichenwald's particular medical condition.
The prosecutors here want to make the easiest argument—that Rivello clearly intended to cause harm to Eichenwald, even if he didn't physically lay hands on him. But note Ekeland's comments about how cyberstalking laws, written vaguely for deliberate reason, are used by prosecutors in ways that stretch or even break the definitions. And clearly the same holds true for the definition of "assault with a deadly weapon." I doubt the average American would ever visualize that an image—even an animated image—would ever be classified by a court as a weapon capable of killing somebody.
While it's not wrong to be concerned that Rivello may have actually intended for Eichenwald to come to physical harm, there are a lot of potentially bad long-term consequences to a jury ruling that we can be held criminally liable for normally constitutionally protected behavior based on how the recipient physically reacts to it. Rivello would probably not be facing charges if he had sent the tweet to somebody who was not epileptic. We should be concerned here about how such a precedent could be misapplied by zealous prosecutors.