Can You Be Prosecuted for a Tweet?

Last December, well-known Newsweek journalist Kurt Eichenwald suffered a seizure in Dallas after opening a flashing animation he received via Twitter.  After it was clear that the message was an attack and not mere happenstance, law enforcement became involved.

In his public profile and writings, Eichenwald has made it clear that he not only suffers from epilepsy but that he is also extremely sensitive to light.  In fact, just weeks before the December 15th attack, Eichenwald had posted publicly about a similar attack directed at him via Twitter.  Just weeks before the attack, Eichenwald had received a similar flashing animated message with strobe lights via Twitter but had escaped harm because he had dropped his iPad just in time.

Police have no had difficulty in determining the motive of alleged perpetrator, John R. Rivello.  Rivello’s Twitter profile is rife with ultra-right musings and postings, and he has even boasted about targeting Eichenwald in the past because he believes Eichenwald to be an overly harsh critic of President Trump.

With the assistance of Twitter, who agreed to expedited court-ordered subpoenas, law enforcement was able to determine that Rivello sent Eichenwald a flashing image of Trump along with the message “You deserve a seizure for your post.”

Although Rivello has no previous criminal history, legal experts consider the Twitter message to be digital equivalent of a mail bomb.  With the advent of social media and smart devices, experts note that terrorists now have unfettered access to potential victims than ever before.  Because social media and the Internet fail to have specific protection and safeguards in place, in contrast to traditional brick-and-mortar handlers like the U.S. Post Offices, dangerous messages can be sent directly to victims without any preemptive screening.

Further, the evidence against Rivello is stacking up.  Law enforcement has evidence of Rivello boasting about targeting Eichenwald in the past.  And because not all epilepsy can be triggered by flashing lights, law enforcement experts note that Rivello’s message would only make sense in the context of knowing that Eichenwald was light-sensitive.

Despite the unique nature of the crime, cybersecurity experts note that this is not the first time that technology has been leveraged against medically-vulnerable victims.  It may, however, mark the first time that law enforcement will bring criminal charges against the perpetrator.

As the case becomes one of the first crimes committed via flashing-message, many have pondered whether Rivello’s actions are considered protected speech under the Constitution.  This defense is doubtful, however, as Rivello’s comments do not have the necessary “expressive value” that would trigger protection under the First Amendment.  Specifically, as it can hardly be said that Rivello’s taunts are contributing to the “marketplace of ideas,” experts believe that the law will come down hard on Rivello.  As the Internet becomes more widespread, and as the Internet of Things is on the verge of becoming a reality, consumers with social media accounts or hackable smart devices (e.g., pacemakers, insulin pumps, etc.) may be especially vulnerable.  We can only hope that the courts and Congress will provide strong protection and helpful guidance in the future as a means of deterring such criminal attacks.



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