Social Media

Is That GIF You're About to Post on Twitter a 'Deadly Weapon'?

Man faces possible prison time for triggering a journalist's seizure.

|

Travolta, 'Perfect'
'Perfect'

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.

NEXT: Welcome to Adulthood, Gen Z

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. William Gibson sighs angrily, throws his latest manuscript in the trash.

    1. Considering he hasn’t written anything good in decades, that is probably best for everyone.

      1. Boo to that. I’ve enjoyed everything he’s written. So what if none of it’s as revolutionary as Neuromancer? So what if my main takeaway from The Peripheral is that i want a pet thylacine? The dude has a skill at putting words together with other words.

        1. The last thing of his I read was The Difference Engine and I was just remember forcing myself to finish it. He might have written good stuff since then, but I sort of gave up on him. If you have a recommendation, I am always interested in a good read.

          1. Oh, and I don’t need Gibson to tell me I want a pet thylacine.

          2. Gibson’s parts of The Difference Engine, at the beginning and the end, were pretty good. Unfortunately, Bruce Sterling phoned the whole middle section the fuck in. We didn’t need a whole chapter about a paleontologist awkwardly boning a chubby hooker, Bruce.

            The Sprawl trilogy (which includes Neuromancer is excellent, as is the Bridge trilogy, and i even liked his non-sci fi Blue Ant stuff.

        2. His plots kind of meander along and then end. I gave up on him after the Idoru trilogy.

          1. Me: “Why did the chicken cross the road?”
            albo: “JESUS CHRIST GET TO THE POINT ALREADY.”

      2. Or ever for that matter.

        Terrible writer.

        1. So you’re more of a Kevin J. Anderson guy, huh?

          1. Read hundreds of SF novels, short stories etc. and not one by Kevin J. Anderson.

            I’ve also read Neuromancer and wasn’t impressed either by the writing or the SF content but each to his own.

            1. You should immediately go out and purchase Anderson’s entire catalog in hardback, i think you’ll love it. [runs away hooting]

              1. You’re acting very childish, or, as I prefer to say, Scalzi-like.

                1. Oh yeah? Well YOU’RE being a total Hubbard!

              2. Thanks, but no thanks.

                But seriously, there are far better SF writers out there than Gibson. Kim Stanley Robinson for one, and who, I believe, was first published around the same time as Gibson.

                1. I like Robinson’s writing – The Years of Rice and Salt is one of my favorite books – but i am not a fan of his revealed worldview, especially in Aurora. “Humanity has fucked up and will continue to fuck up, and should just resign itself to extinction rather than attempt to infect the universe!” Way to piss on the party, guy.

                  1. I am currently about halfway through Revelation Space. So far, rather underwhelming, but I will reserve judgment till the end.

                  2. About to start Aurora. I don’t share Robinson’s general world view though I think he’s a very good writer. The Wild Shore is superb, would rank it alongside Stewart’s Earth Abides.

                    Been reading a lot of SF recently from the “golden age”, Leigh Brackett’s The Long Tomorrow for instance, which is a genuine and under-recognized classic and who could write Gibson under the table and most other SF writers for that matter.

                    Wish Pournelle would write more SF.

                    1. Pournelle is about a thousand years old (ok actually just 90s). Breathing is an accomplishment.

                      If you want good cyberpunk, i.e. not gibson, then try walter jon williams. Good writing style and characters and thoughtful storylines.

                    2. Didn’t realize he was that old.

                      Thanks, might check out some of WJW’s books.

              3. You should immediately go out and purchase Anderson’s entire catalog in hardback

                Hey! He co-wrote the Dune prequels, and some of those were almost as good as the movie!

  2. What if you know someone has a weak heart and you deliberately scare them in hopes of causing harm. Would that be the same? Is there a rule/law against that?

    1. You didn’t intend to harm them. So, the only way you could be guilty is by involuntary manslaughter or reckless disregard. Reckless disregard is like driving a hundred miles an hour through a school zone at 8 am. I can truthfully say I didn’t mean to run anyone over. But if I do, I am guilty of involuntary manslaughter because my actions are so reckless and harm arising from them so foreseeable that I am criminally liable for the death.

      Unless you knew the guy had a bad heart and scarring him was likely to kill him, you are not going to be guilty of manslaughter or criminally responsible for the man’s death in your hypothetical.

      1. You didn’t intend to harm them

        According to what I typed, it was done with intent to harm. If reckless disregard is already a thing then that seems like the best fit here.

        1. I missed that. Yes, if you know he has a bad heart and scare him intending to cause a heart attack, then yes, you are guilty of at least involuntary manslaughter. Actually, your intent combined with your knowledge that he has a bad heart might make you guilty of murder. It would be a close call and depend on the extent of your knowledge and the actual likelihood of scaring him causing his death, but I could imagine a set of circumstances where you would be guilty of murder.

          1. So assuming the guy isn’t lying his ass off, he has a case. There was knowledge + intent + actualization (or whatever you want to call it).

            1. If you assume that is it reasonably possible to induce a seizure by showing someone a GIF and the guy who sent it knew this and intended to cause a seizure when he sent the GIF, then yes he is guilty if the GIF, in fact, did cause Eichenwald to have a seizure.

              Since Eichenwald didn’t die, he is not guilty of manslaughter. It would have to be some kind of criminal negligence. But that is a lot of assumptions.

              1. Sure it’s not really a great case, but there is something there.

                1. Next week, guy charged because person yelled at- had a heart attack. The “attacker” was yelling ” I hope you have a heart attack”.

                  Fucking ridiculous criminal charges.

      2. Jesus christ, John, I thought you were supposed to be a lawyer. Did you sleep through tort class when they were discussing Intentional Infliction of Emotional Distress? Knowingly sending an epileptic a flashing GIF seems like a tort to me.

        1. I believe the original case was some asshole falsely telling a woman her husband died and the poor woman suffering health problems from it.

          1. It was a tort case. It wasn’t a criminal case. We are talking about two different things here.

        2. We are not talking about torts, you half-wit. This is a criminal charge. Intentional infliction of emotional distress is a tort not a crime. And intentional infliction of emotional distress would also revolve around the issue of foreseeability.

          1. This was posed as a libertarian question and I answered it from a libertarian perspective. Many libertarian scholars only recognize torts and not criminal law per se. In any case, my original tone was unnecessarily rude and I apologize.

            1. This is clearly a tort if it is a crime. It is just a different name. it would be intentional infliction of emotional distress. Again, it has to be foreseeable. For example, it is foreseeable that telling someone their husband died would cause distress. Going Vader on them probably not. So you couldn’t win a tort suit for my going Vader on you but could for me telling you your wife died.

              So the whole issue comes down to just what effect are GIFs known to have on epileptics. And from what people on this thread are saying, a lot. This guy may be in trouble.

              1. Wouldn’t this be assault? And yes i realizw that is playing into the sjw nonsense that undesirablw speech is equivalent to violence. This seems different to me in that the causality (if the seizure really happened) is clearly linked unlike political speech.

        3. Does he “internet’? I know I have to actully click on a GIF on my Twit feed to get it to play.

          Isn’t that a “voluntary assumption of risk”?

      3. it would be voluntary manslaughter because there is intent to do that and criminal negligence. I see this being quite obvious.

        If you do something that you know could kill someone but intend to kill someone but they end up dying that is criminal negligence and manslaughter.

        1. If you do something that you know could kill someone but didn’t intend to kill someone but they end up dying that is criminal negligence and manslaughter.

        2. The only defense this man has is the victims own stupidity.

          There is culpability on the mans fault. If you get seizures….why the fuck are you using the internet?

          They both are really wrong here so I would personally throw out the case due to the victims dumbassery with using the internet.

          Now if this buy just shoved a tablet in this guys face he definitely deserves voluntary manslaughter chargers. Possibly murder but i think that’s a stretch.

      4. Every time I get email from a libtard espousing a socialist dogma, my blood pressure goes up. If I have a stroke, can I put them all in prison?

        What irony if gun control screeds could be classified as “assault weapons”!

  3. 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.

    WE LIVE IN AN POST-FACSHUAL WORLD… GOVERNMENT SHOULD AHVE A ROLE IN MEDIA!

  4. Let’s say I stare at you with my thumb and forefinger pointed at your throat Darth Vader style intending to choke you. Now assume I am a bit of a nut and think it will actually work and do intend to harm you. You see me doing this and out of fear and shock that some nut is trying to go full Jedi on your ass, you suck the piece of meat you were eating down your throat and nearly choke to death. Now I intended to choke you and you, in fact, did choke as a result of my actions. Am I guilty of criminal assault?

    I don’t think so. And the reason why is that it takes more than intent to make criminal battery or assault. It also takes foreseeability. I not only have to intend to harm you, it must also be reasonably foreseeable that the actions I take to harm you will cause you harm.

    To apply that to this case, the question is whether it is reasonably foreseeable for a flashing GIF to cause an epleptic to go into seizures. I have no idea what the answer to that question is. But if it is foreseeable and this guy knew that it was, then yes I think he is guilty. If not, then no he isn’t. Sending the GIf is no different than going Jedi on him as I describe above.

    1. To apply that to this case, the question is whether it is reasonably foreseeable for a flashing GIF to cause an epleptic to go into seizures. I have no idea what the answer to that question is. But if it is foreseeable and this guy knew that it was, then yes I think he is guilty. If not, then no he isn’t.

      If I recall the gif correctly (and I did see it on Twitter soon after it was posted), it was a star-shaped pattern in bright colors that strobed on and off a zillion times a second, along with text saying Eichenwald deserved a seizure. It’s the sort of thing that afraid-of-lawsuit video game companies warn epileptic users about, only turned up to 11.

      And they allege that this guy spend a fair amount of time searching the internet for how to cause a seizure via gif. So if they can prove that allegation, coupled with text overlaid on the gif that said “YOU DESERVE A SEIZURE” or something to that effect, I’d think he’s guilty.

      1. If all of that is true, the guy is likely guilty of criminal negligence. I can’t stand Eichwald but that doesn’t give this asshole a right to do that.

    2. that doesn;t pass reasonable person statute. No one would think that would kill someone. If the person is a pants shittier in this case that is their problem not yours.

      Very different from making someone have a seizure do to a serious and well known medical condition.

      There is culpability on the mans fault. If you get seizures….why the fuck are you using the internet?

  5. Whether Eichenwald is a person to be treated seriously shouldn’t be issue here.

    In a sense you’re right. In another sense, his only evidence for the seizure actually occurring is his own word, the value of which rests on his credibility.

    1. Eichenwald is a complete nut and a total embarrassment. There is no way I would take his word for having the seizure. Maybe he did. But there needs to be some corroborating evidence. Then there is also going to have to be some very good medical expert testimony explaining how the GIF caused the seizure. His word alone won’t or shouldn’t cut it.

      1. “Then there is also going to have to be some very good medical expert testimony explaining how the GIF caused the seizure. ”

        A quick search for ‘seizures caused by visuals’ has mostly NYT and Wired and the like as sources for the claims.
        Now John Edwards made a lot of money peddling hooey to jurors, so there’s no guarantees…

        1. He made money convincing jurors to force big insurance companies to pay sympathetic plaintiffs’. That is no small feat. It is a lot different than convincing a jury to throw someone in jail. And Eichenwald is the least sympathetic victims I have ever seen.

      2. If they showed the GIF in court and he had a seizure, would that be proof that the GIF caused the seizure?

        (not being my normal self, asking seriously)

      3. If you read the linked Washington Post article, his wife found him mid-seizure. Would she count?

        1. I’m not sure that she’s an unbiased witness but maybe a jury would disagree.

    2. his only evidence for the seizure actually occurring is his own word

      Yeah, unless he has proof that he had to go the hospital or see his doctor after seeing the GIF I’m gonna call bullshit.

      If he did have a seizure but it wasn’t serious enough to require a hospital or doctor’s visit, then it obviously didn’t cause much harm. Some asshole pulled a very un-funny prank on you. Get over it. Also, I don’t think the dumbass fully thought through the potential consequences of revealing to the entire world that an animated GIF can cause him to have a seizure.

    3. Good point.

    4. Does he even “internet”? I know how to prevent GIFs from playing automatically- you would think an epilectic might know the same.

      If he chose to click on it, isn’t that an “assumption of risk”?

  6. What’s likely unprecedented about this case is that Rivello’s tweeted GIF is considered an assault weapon.

    Clearly what we need is common sense GIF control. Nobody needs more than 25 frames per second.

  7. I’m no fan of Eichenwald, and would want some kind of evidence that he ever had the seizure in the first place, in that he is a delusional, lying piece of shit…

    But this article seems poorly argued. IF a guy knows another dude has seizures, investigates what kind of image he would need to trip a seizure, and then sends that kind of pic to the guy to cause a seizure, that seems pretty obviously to be assault to my non-lawyer ass. Can a more lawyerly type explain what the confusion is on purposefully harming another person?

    The last paragraph of the article is nonsensical. If I know my neighbor has a peanut allergy, and I fill his drink with peanut dust, I can’t excuse myself by saying “it wouldn’t even be an issue if he wasn’t allergic to peanuts.”

    You can either prove intent or not. I don’t see the slippery slope between “guy very clearly intends to cause physical harm” and “intent is not demonstrable.” Again, though, what little I know of the law I learned as a defendant.

    1. If I research what kind of letter would give you a heart attack and send it to you and include the phrase “I hope this gives you a heart attack”? Do you think someone should be criminally liable?

      This is the problem with making a bunch of half-ass exceptions to the 1st Amendment. All speech should be protected and all methods of delivery of that speech should be protected from government criminality. Unless you actually physically harm someone, there should be no liability here.

  8. Here’s a question that I’m too lazy to find the answer to: what happened to Nintendo when they shipped out a million handhelds that were causing people harm?

    1. Never mind, I looked it up and it looks like they never got slapped with anything.

    2. Their executives slept soundly that night on a pile of naked prostitutes. Why?

  9. Would would would would would would would would.

  10. Regardless of the facts, Eichenwald should be shunned by his fellow journalists. If he can’t suck it up and take one for the free speech team, then he’s a tool.

    Beyond that, caveat monitor.

  11. Hey Shaquille, thanks for illustrating this article with a gif that my employer’s internet policy won’t stop sending me warnings about.

    1. Don’t wanna be a thug, don’t watch crotch.

    2. Oooooh – looks like you got grounds for a complaint that your employer has a homophobic internet filter.

    3. Make friends with your network admin. He’ll put a rule in allowing you to watch gyrating crotch shots of young men all day.

      1. Nah, if i want to see that i’ll just dance in front of a mirror, ladies.

    4. That animated GIF caused a seizure – IN YOUR PANTS.

      1. A Seizure In Your Pants was my nickname in college.

        1. Huh. Small world.

  12. Can you pan the camera a little left so that I can see a little more of that black lady? thx

    1. Any, lady. Any. For the love of Pete.

    2. I am also digging the high-cut 80s style leotards.

  13. If the guy has epilepsy so bad that a GIF can trigger it, what business does he have getting on the internet, let alone on GIF-heavy Twitter? Is it reasonable that a person who is so easily triggered into epileptic seizures gets on the net, gets on Twitter and doesn’t change his settings or install an add-on to his browser that disables GIFs? With all of that in mind note that Eichenwald is absolutely loving all of this attention and revels in the fact that he can get people arrested that send him GIFs.

    1. That doesn’t get this guy off. Suppose you are on blood thinners such that falling down can kill you. Clearly going ice skating in such a condition is a very bad idea. But if you do go ice skating and I skate by and knock you know knowing you have the condition and intending to cause you harm, the fact that you shouldn’t have been on the ice in the first place isn’t going to get me off. Same thing here.

      1. I’m not saying the sender is necessarily innocent. In no way shape or form. I’m just saying that Eichenwald is contributing to his susceptibility by managing his illness like an idiot. I had a friend with very severe epilepsy. He had to stop driving and couldn’t watch TV on the off chance that an action scene with lots of cuts might air or a commercial would come on et cetera. He would have been the first to tell you that it sucks restricting his activities like that, but he knew it had to be done to avoid extra seizures and since minimizing his seizures was his goal, that’s what he did.

        Just the same, rape is always the fault of the rapist. But that doesn’t mean the victim didn’t make any poor choices that put them in that position in the first place. Eichenwald on Twitter is like a hot blonde strolling naked through the Calais migrant camp at 2am. He’s setting himself up for a bad time.

    2. It’s not that “a” GIF could trigger his epilepsy, it’s that his epilepsy could be triggered by a GIF designed to do so. Cat GIFs would be perfectly safe, other than the well known “cats playing with strobe light” genre.

      1. You speak as though you’re familiar with his medical file. There are people with epilepsy that could watch a Pokemon movie while dancing at a rave party with a strobe light running and they wouldn’t have a seizure. Then there are other epileptics who can’t even glance at an active television screen without a serious chance of triggering a seizure. A GIF would not need to be specially designed just for him if his epilepsy is as bad as he claims. Thus if GIFs can cause his seizures as he claims, then he’s using the wrong social media platform with the wrong browser settings.

  14. Assault with a deadly weapon is a ridiculous charge, but concerns about prosecutors abusing their discretion to over-reach on charges ye shall have with you always. And given the frail psyches of the precious snowflakes, intentional infliction of mental anguish and emotional distress lawsuits against anybody in any way connected to displaying any reminder that Donald Trump even exists will be papering the country by the middle of next week.

  15. Does anyone have access to the actual GIF used in this matter? Anything but the wad-wagging darlings in the video that accompanied this article; as for that I’m considering filing visual assault charges against Shackleford.

  16. It’s definitely assault. Calling the image a weapon may be stretching things a bit, but there was a deliberate attempt to inflict harm with an a method known to be harmful to that individual.

    1. As I’ll repeat from above- Do these people “internet”?

      I’m not especially “tech-savvy”- but GIFs don’t autoplay on my browser or Twit feed. Becaose I think I’m solely responsible for what I view on the internet. (Sorry Fist, I ain’t clicking no more!)

      If you click it, you have chosen your “assumption of risk”…

  17. Now we only need to slip from real seizure => mental seizure and 1st amendment can be flushed down the toilet.

  18. Furthermore, Eichenwald claimed that the GIF succeeded. The, the flashing colors prompted a seizure. After. and after he recovered, he filed a criminal complaint in Texas in the hopes of tracking down the culprit.

    What you had as sentences were part of his claims.

    Is there any evidence that he in fact suffered a seizure?

  19. We should be concerned here about how such a precedent could be misapplied by zealous prosecutors.

    Yet another vast gushing aquifer of unrealized litigation has just been discovered by the intrepid bleeping victim gizmo.

  20. The first True CyberWeapon!

    Gifs now regulated as munitions by BATF.

  21. Rivello was being an internet troll. There’s probably no way the prosecutors can prove that the guy seriously “intended” to harm Eichenwald. If the charges stick, then that means Rivello is responsible for every other epileptic patients who might have watched that GIF. Twitter might be held liable, possibly.

    I just don’t see how posting a flashing GIF on an public online forum can be considered as reckless or dangerous. Yes, it was directed at an individual, but everyone could see it (unless the feed was private?). Given that he wrote “you deserve a seizure for your post”, Eichenwald had ample opportunity to not watch it.

    This is different from someone sneaking in nuts inside food sent to a person with peanut allergy, isn’t it? It’s not even sending one of those “scary pop up” mazes to a person with a heart attack. It’s more like posting a picture of demon possessed Linda Blair on the hallway with the note that reads “Dear person X you deserve a heart attack.”

  22. In a world where an encryption program can be a munition this makes perfect sense.

Please to post comments

Comments are closed.