Kurt Eichenwald Sues Twitter Troll Over Alleged 'Epileptic' Image Assault

from the legal-issues dept

So, just to be upfront about stuff, reporter Kurt Eichenwald doesn’t like us here at Techdirt very much. We’ve written about him a few times, and he’s never been at all happy with our coverage because the two times we’ve written about him it was to call into question his reporting. The first time was a few years ago, when he made some ridiculous logical leaps in asserting that Ed Snowden was a Chinese spy and all of his leaks was just to cover up Chinese cyberattacks. Then, just a few months ago, we called him out for massively overselling a story, where he falsely claimed (and later deleted his tweets claiming this) that he had proof that Wikileaks was connected to the Russians. This was based on a long and convoluted series of events that proved no such thing. It may be true, but Eichenwald had no proof. He massively oversold a story that later turned out to just be that a part time writer based in DC at a Russian-owned publication made a mistake in misattributing a quote — and Eichenwald assumed all sorts of ridiculous things.

Suffice it to say, Kurt Eichenwald is not a fan of us at Techdirt and has me blocked personally on Twitter after I tried to point out that he was overselling his story. These aren’t the only times that Eichenwald has run into trouble for his reporting. Back in 2007, there was an incredible story that came out concerning Eichenwald writing a NY Times article about child porn, where he left out the fact that he’d paid the subject of the article thousands of dollars. And, then, last week, Eichenwald appeared on Tucker Carlson in an interview that can just be described as… very, very odd. I’m not a fan of Carlson either, but they quickly get into a weird debate where Carlson wants to attack Eichenwald for “fake news” by pointing to some tweets that Eichnewald made about Donald Trump allegedly being institutionalized. Carlson keeps asking Eichenwald to explain this tweet and Eichenwald… goes all over the place, including something about his contacts at the CIA and a binder full of what he calls Tucker Carlson’s “falsehoods” but he never actually answers Carlson’s question.

Again, I think Carlson tends to be ridiculous, but Eichenwald comes off as much, much, much more ridiculous here. He continued to make himself look worse, by later claiming that he was joking and “signaling” a source with the bogus tweet — an excuse that makes absolutely no sense at all.

And, apparently, some internet trolls agreed, but decided to take it up a notch. Back in October, Eichenwald had written an article claiming that some internet trolls tried to give him an epileptic seizure by sending him a graphic that has been known to induce seizures in epileptics (Eichenwald has epilepsy). It appears that the combination of the Carlson interview and Eichenwald’s attempted defense of the interview resulted in a troll using the handle @jew_goldstein (subtle!) posting a tweet with a flashing image claiming that he deserved a seizure. Eichenwald’s account later tweeted out a claim, supposedly from his wife, that the image had worked and he’d had a seizure — and that he was pursuing legal action. This kind of attack isn’t particularly new. There was a story about a decade ago of a bunch of internet trolls descending on an epilepsy forum to do the same thing — which is really kind of fucked up.

Then, Monday morning Eichenwald released a copy of some legal documents in the lawsuit, seeking expedited discovery. In short, he’s suing and trying to use the discovery process to unmask who is behind the troll @jew_goldstein account, demanding that Twitter hand over the information. I think it’s reasonable to question whether or not an actual lawsuit will follow or if the goal here is just to unmask the troll.

Now, there are all sorts of legal questions about this — and, thankfully, since Eichenwald wrote about this back in October, a bunch of experts have already weighed in. And the answer seems to be a combination of “well, there’s an interesting legal scenario” and “yeah, it seems like he might actually have a case.” Law professor Elizabeth Joh explains the basics here:

Had this Twitter troll walked up to Eichenwald and pointed what appeared to be a loaded gun at the journalist, most would agree that the troll would be guilty of assault. Had the troll walked up to Eichenwald and surprised him with a tablet displaying the video, the result would likely be the same. After all, not all weapons are guns. It?s the same thing with the tweet?the distance does not change the analysis. For instance, the intentional hacking of a networked connected medical device, like an insulin pump, resulting in a person?s death would be criminal homicide even if the perpetrator were hundreds of miles away.

Criminal defense and free speech lawyer Mark Bennett also sees the elements of a misdemeanor in Texas:

But this assault on the journalist is interesting for another reason. It?s not only a threat to commit imminent harm ? indeed, it?s arguably not even a threat to commit harm ? but an attempt to cause bodily injury. That?d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It?d be a third-degree felony ? up to 10 years in prison ? if the assailant intended to cause serious bodily injury.

Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford?s The World Beyond Your Head).

I can?t think of a good reason an electronic message sent with the intent to cause an epileptic seizure should not be treated like any other attempt to cause bodily injury.

Criminal defense lawyer Scott Greenfield also concludes it’s quite possible:

Yes, even Twitter can be used to commit an assault, regardless of whether Eichenwald was a victim. No, it doesn?t have to be that way if you choose not to commit a crime using twitter. Just don?t do it.

Lawyer Keith Lee put all of this together and looks at whether or not all of the elements of assault were accomplished here and also concludes that there’s a viable claim with this lawsuit:

In the situation involving Eichenwald: were the mechanics of an internet medium (Twitter) able to act as a delivery system for an assault (an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm)?

Given that the offending user (((Ari Goldstein))):

  1. Used the Twitter network system;
  2. to transmit/deliver an intentional attempt/threat;
  3. that they knew would be likely to inflict injury; and
  4. placed Eichenwald in fear of imminent bodily harm.

I?d say that it?s likely that Eichenwald has some merits to his claims.

Lee notes that there are some possible defenses, but again, it does make you wonder if Eichenwald actually intends to follow through on the lawsuit, or just try to expose the troll. Still, as pretty much everyone agrees, whoever did this is pretty obnoxious. I’m obviously not a big fan of Eichenwald, and find him to be a terrible reporter, an unreliable narrator and kind of a jackass but I still think whoever did this to him is a much bigger jackass — and potentially a criminal. Eichenwald looked foolish enough with his rantings. There’s simply no reason to go further to try to harm the guy physically.

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Comments on “Kurt Eichenwald Sues Twitter Troll Over Alleged 'Epileptic' Image Assault”

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Vidiot (profile) says:

When messaging causes physical harm

So… if I email someone, let’s say, an animated GIF of flaming dog shit, I would be liable for the cost of their laptop if they tried to stamp out the fire?

This instance is abhorrent and idiotic, but it’s hard to think of any other hypothetical situation where a simple electronic message induces a harmful physical reaction… hard to believe there’s a legal remedy.

Machin Shin (profile) says:

Re: When messaging causes physical harm

This really is kind of an interesting case though in that he sent one of the very few messages that could actually cause someone physical harm.

I also think it could pave an important path for future issues. As more and more things become connected to the internet it becomes more and more simple to “assault” someone online.

It does make for some very interesting questions. It is sad that the case seems to have total assholes on both sides that will cloud the core issue of how to deal with this kind of thing in the future.

Anonymous Coward says:

Re: When messaging causes physical harm

If you had knowledge that the intended recipient suffered from a condition in which they were medically unable to differentiate between an animated gif of flaming dog shit on their laptop and actual flaming dog shit, yes, your knowledge and intent and subsequent action could make you liable.

In this case, if the troll has knowledge of the intended recipient’s likelihood of injury caused by the message stemming from a medical condition, it’s at least actionable in a civil lawsuit, but also possibly a criminal charge as the article notes.

trollificus (profile) says:

Re: Re: When messaging causes physical harm

Hmmm…given that, are the antics we see on college campuses (fainting, hysterical crying, uncontrollable fear and rage) in response to “offensive” speech/writing/opinion, setting up a precedent in which speech can be legally treated as violence??

One hears it frequently, that the pain felt makes the stimulus indistinguishable from physical assault. Indeed, such an argument of equivalence is sometimes also used when claiming that triggering speech is at fault when the ‘triggered’ person commits actual physical violence in response.

I would hate for such equivalence to become ‘precedent-by-decree’ through the kind of administrative interpretation various FedGov agencies (and Presidents) more and more resort to. Pretty sure the actual LAW doesn’t work that way. A fact for which we should all be grateful.

That Some Good May Come of This Dept:
For any government power that might be used to do good, right wrongs, “level the playing field”, etc., etc, I’d like people to imagine that power in the hands of Trump or a Trump Administration. Government power should not be increased based on the assumed, or hoped-for, morality and enlightened nature of those wielding it. Nopenopenope.

Anonymous Coward says:

Re: When messaging causes physical harm

Your animated GIF example is ridiculous – no reasonable person would do that.

I’m not sure why you think it’s hard to believe there’s a legal remedy. You don’t have to think of every possible way to injure someone for it to be illegal to intentionally cause injury. If I invent gravity manipulation and use it to suck someone’s left leg into a black hole, the law doesn’t say “Well, we don’t have any laws about black holes, so I guess he gets away with it”.

Anonymous Coward says:

I recall Mr. Jew_Goldstein pointing out how Eichenwald often played Mr. Internet Tough Guy with his “I’ve survived assassination attempts and I’ll survive any crap you throw at me” to “I’ll sue you for posting a Twitter .gif”.

Eichenwald is a very obnoxious person who deserves mockery. But he doesn’t deserve bodily harm. I wonder if there’s a case to be had here what other medical conditions could fall under the followup “assault over Twitter” precedent.

Thad (user link) says:

Re: Re:

I recall Mr. Jew_Goldstein pointing out how Eichenwald often played Mr. Internet Tough Guy with his "I’ve survived assassination attempts and I’ll survive any crap you throw at me" to "I’ll sue you for posting a Twitter .gif".

Where are you seeing a contradiction between those two things? Are surviving a thing and taking legal action for it mutually exclusive where you come from?

Do you live in a place where people get executed for filing lawsuits? Because I can see a draw to that, but it seems like there’d be a downside, too.

afn29129 (profile) says:

Credibility issue

What Kurt is claiming might be true but I see some credibility issues as well. If a person cries wolf a few times, and they turn out to be false, then who’s gonna believe you when you cry wolf again and it is true.
“….and later deleted his tweets claiming this….”, Ahhh. damn but that really despicable, trying to un-say what has been said.

art guerrilla (profile) says:

i don't get the details...

…and as kampers know, the devil is in the details…
1. i had heard that flashing images can induce an epileptic fit, but is that ALL epileptics, or a small subset…
2. is it ANY random flashing thingy, or does it have to have certain characteristics ?
3. aside from that, is such a graphic ‘guaranteed’ to induce a fit, or just some increased chance ?
4. given what a pig of a mediawhore this status quo water carrier is, I DO NOT BELIEVE HIM FOR A SECOND… EVEN with video, i am inclined to disbelieve a lying sack of shit like him…
further, even if he did have a fit, could it be triggered by him getting in a huff about this stuff, rather than the graphic itself ?
lastly, is this asshole driving around where any number of flashy things -including sunlight being occluded behind a row of trees- could -apparently- cause him to spas out ? ? ?

Anonymous Coward says:

Re: i don't get the details...

Questions 1-3 don’t matter much for the purposes of this case, because (allegedly) it did trigger it for this person. At best, the guy who sent it is playing Russian roulette by sending such an image to a known epileptic. He’d still be liable no matter what the answers to those questions are.

Question 4: OK, if he’s lying, that obviously matters a lot. But he’s alleging that it did happen. And it seems that such an image WAS, in fact, sent to him (otherwise how could they even try to get discovery on who sent it?) It seems reasonable to conduct that discovery to find out who sent the thing, name that person as the defendant, and, now that both sides are present, proceed to argue the facts in court.

art guerrilla (profile) says:

Re: Re: i don't get the details...

thanks for the answer, but i believe 1-3 do have some incidental bearing (for example, if the flashing has to be at a certain frequency to work, WAS the offending graphic at that frequency ? i think that is a salient factoid)
besides the particulars of this case, i am genuinely interested in the mechanism and conditions for such triggers…
as i said, there are any number of ‘flashy’ things all around us, do they ALL induce seizures ?

Thad (user link) says:

Re: Re: Re: i don't get the details...

thanks for the answer, but i believe 1-3 do have some incidental bearing (for example, if the flashing has to be at a certain frequency to work, WAS the offending graphic at that frequency ? i think that is a salient factoid)

It’s salient in determining whether or not the image could have actually caused a seizure.

It’s not salient in determining whether or not the sender INTENDED it to cause a seizure, seeing as he said he hoped it would cause a seizure.

Anonymous Coward says:

Re: i don't get the details...

From personal acquaintance with epileptics, flashing lights or images are always something that can trigger a seizure, with some frequencies more likely that other to be a trigger. Also, there is often a delay of a minute or two between a short exposure and a seizure.

It is significant enough a risk factor to make sending an image known to trigger seizures a deliberate assault..

JMT says:

Re: Re:

I don’t believe he claimed he actually had a seizure, only that the sender intended to cause one. If you swing a baseball bat at someone’s head and miss you can still be charged with assault.

It’s unlikely he’s lying about the image being sent, otherwise he wouldn’t be attempting legal discovery.

Thad (user link) says:

Re: Re: Re:

I don’t believe he claimed he actually had a seizure

Yes, he did. Quoted at http://arstechnica.com/tech-policy/2016/12/twitter-used-to-attack-journalist-kurt-eichenwald-triggering-seizure/ :

Last night, for the second time, a deplorable aware I have epilepsy tweeted a strobe at me with the message "you deserve a seizure’ on it…
…it worked. This is not going to happen again. My wife is terrified. I am…disgusted.

Anonymous Coward says:

Fascinating questions

I will concede that the facts alleged (sending an epilepsy-triggering image to an epileptic and that, presumably, the sender knew the recipient was epileptic) seem to fit the definition of the criminal charges, novel as the case may be. That in turn leads to some fascinating what-if questions about which aspects of the case are necessary to pursue criminal charges.

For example, if the recipient was epileptic, but there was no way the sender could reasonably have known that, would an epilepsy-triggering image still constitute assault? It would constitute poor taste (even non-epileptics usually don’t like seeing those animations). Would it matter if the image was delivered as a directed message versus if the image was posted in a public place that the recipient was reasonably likely to see it? What about if the image was posted in a public place and the sender reasonably expected this epileptic would never see it (say, because it’s in a place this epileptic normally never goes)? Would it matter if the sender expected this recipient not to see it, but reasonably should have known that some epileptic somewhere could see it?

How far can the image-as-weapon idea be stretched? Can non-epileptics pursue people with horrible aesthetic sense (e.g. garish page colors, pages with nauseating automatic scrolling, etc.)? I know a few websites with really nasty automatic scrolling. I find it uncomfortable to watch those pages when the transition animates, and have been unable to make their webmasters understand how unpleasant that design is (but I can’t get rid of the site, because $job).

What about unsolicited surprise non-epileptic disturbing images (various disgusting Internet memes; various gory deaths; etc.)? Would it be actionable if seeing that image was disturbing enough to require something more than closing the image as quickly as possible?

geddy2112 (profile) says:

its not a short walk to...

…..the point where a tweet might influence an unstable person to act on mis-information. like in the comet ping pong pizza case. an argument can be made that an existing mental condition would cause someone to be influenced by twitter. then the tweeter could be liable. not quite the same but the connection could be made and might prove to be a liability in the future…not saying it is…but the crossroad is coming up the road where it could be proven with the right case.

Thad (user link) says:

Re: its not a short walk to...

It sounds like you mean it is a short walk.

But you were right the first time. The two things aren’t remotely similar, from a legal standpoint.

If you spread misinformation that leads someone who is unbalanced to commit a crime, you’re not legally liable, except in very limited incitement cases. (What you are describing, the Comet Pizza case, is not incitement.)

Intentionally causing direct physical harm to another person is not within the same category, legally, at all.

art guerrilla (profile) says:

Re: seizure info

good info, thank you…
that info omly makes it a little more problematic, though…
it said only affects about 3% of epileptics, AND almost always peters out by mid 20’s, thought they said almost unheard of past that age… have no idea how old eichenwald is, but appesrs to be significantly past mid 20s…
just sayin’…

Atkray (profile) says:

Another consideration is just how dangerous is a seizure for Eichenwald?

I imagine that people are affected differently.

The only epileptic I know has over the years maintained they (seizures themselves) are no big deal, he says they are a nusicance more than anything, and should he ever have one to just make sure there is nothing for him to fall on/over/into and then clear a space around him.

Fortunately, I have also never had to do that, so admittedly my exposure is limited.

Thad (user link) says:

Re: Re:

That may be relevant to how Eichenwald copes with his seizures and what he does in the future, but I don’t see how it’s relevant to the civil case. If somebody intentionally caused him to have a seizure, I don’t think “I didn’t know how bad the seizure was going to be” is going to be much of a defense in court.

Atkray (profile) says:

Re: Re: Re:

I agree with you but what if they have a doctor testify that a seizure would not place Eichenwald in danger, or at that a seizure is not life threatening?

I can picture a claim like this:

“You honor my client never intended bodily harm, they thought that a seizure was just a nuisance and this was all just a joke done in admittedly very poor taste.”

If what was done wasn’t dangerous….. then?

Anonymous Coward says:

Re: Re: Re: Re:

With a seizure, a person goes rigid, falls down, and often the thrashes about. This always poses some danger to the person, especially if there are hard edges about on which they can strike their head, or stairs to all down, or water into which they can fall, or traffic they could fall in front of. Body rigidity increases the risk of injury from the fall, because they go down like a pole, rather than folding up onto the floor or ground.

Anonymous Coward says:

Re: Re:

Agreed, the seizure itself is not the danger, but rather where it occurs. Just before they cross a main road is… ‘well, could have been a problem is it had started a second or so latter. That seizure was triggered by unexpected use of disco light by a band in a pub, and for the time it took to get out of a busy bar.

joe says:

kirt eichenwald human slime

When i look at kirt eichenwald on cnn and msmbc trying to cut donald trump to shreads, i want to vomit. It’s really sad that no one has really called out, and taken on this bald, extremely ugly, dishevelled looking, fat arrogant, cocky piece of human waste who is void of moral fiber. He is invited to appear on low life cable news shows such as cnn and msmbc. he sits at the table ready to bash trump trying to look like a tough guy. He calls himself an ‘expert’ on donald trump, but we all know he is just another CRUMB SNATCHER who was totally unknown before the 2016 election, and has now come out of the woodwork with all the other failed writers and bloggers, who can ONLY WISH they looked like donald trump, had his wealth and to go along with that some of the most beautiful woman they ever laid their beedy eyes on. this is Not about his FACTS. This is a case of pure envy and jealousy of donald trump. Kirt eichenwald is a number 7 on the ” NORWOOD INDEX SCALE” of male pattern baldness. [ google it]. He is an extremely ugly thing,thus his subconcious making him grow that lice infested beard of his to hide his UGLY! Kirt eichenwaldis NOT, repeat, NOT a tough guy that he wants people to think he is. He sits on cable news ready to bash and destroy people FOR SELF GAIN. he would sell his mother to get on cnn and msmbc with his fellow haters and pile and pile on donald trump like a little fuckin pussy who needs 5 of his friends in the schoolyard to fight one person. I dare him right here and now to write a hit job on some connected wise guy. This dirtbag doesn’t have the balls. How about John Gotti, mr eichenwald. wanna write a hit job on his life? This bottomdweller does not walk. He slivers around looking to make himself look like the GOT YA guy. If donald trump ever took this fat pig on one on one , mr trump would turn him into a piece of kafilta fish and sell this fat slob for five cents on the dollar!! What a discrace. Doesn’t the top brass at cnn or msmbc realize that the american people are getting verry wise. Having a low life wanna be book huckster dishevelled looking thing like kirt eichenwald is only causing their ratings to drop ” BIG LEAGUE’ Kirt eichenwald wears those big glasses to magnify his little beedy eyes. it’s really sad that no one ever pulled his card. Mr tough guy kurt eichenwald knows damm well that he is not really a tough guy, but instead he is a CABLE NEWS TOUGH GUY. where he is allowed to say anything about anyone for his self gain. HE IS IN HIS SAFE SPACE trying to convince the public he is this solid stand up guy . in closing, whomever does not know of kirt eichenwald please take note he is a COMPLETE FAKE TOUGH GUY! A CABLE NEWS GANGSTER who sits safely in the studios of cnn and msmbc. This fat pig, bald headed. ugly, deballed wet rat of a human being can only wish in his wildest dreams to have a full thick healthy head of growing hair like donald trump along with a beautiful wife.
they say its not nice to talk about someones family, but kirt eichenwald you mocked donald trumps hair, you mocked donald trumps wife, his children his business ventures so if you can run wild with insults i must say your children get their ugly looks directly from YOU. also your wife should hide her face when in public, its really repulsive looking. You know what they say kirt: when you live in a glass house you should not throw stones you filthy dirt bag. Some of your co- workers who do not wish to be known also inform me that you have the worst case of bad breathe they ever saw!! what a discrace! go take a shower and brush your teeth! also kirt eichenwald has been appearing on cnn and msmbc for about 18 months now. an observant viewer can clearly see that kirt eichenwald has only changed his shirt and suit jacket about 4 times. this man is a real fuckin PIG! He can also use pest control on his lice infested beard. If the owner of this website cares to share this post with ANYONE You have my full consent. if you can please forward this to Donald Trump or his family. I want them to know there ARE people still left that despise slime like kirt eichenwald who will do or say or write ANYTHING for profit and try to make himself look good which he is NOT!!!! Thank you

Anonymous Coward says:

Re: Re:

For about 3 percent of people with epilepsy, exposure to flashing lights at certain intensities or to certain visual patterns can trigger seizures. This condition is known as photosensitive epilepsy.

Epilepsy is the fourth most common neurological disorder in the United States after migraine, stroke, and Alzheimer’s disease. About one percent of Americans have some form of epilepsy, and nearly four percent (1 in 26) will develop epilepsy at some point in their lives.

3 percent of epileptics… so 0.12 % of the general population….

The frequency or speed of flashing light that is most likely to cause seizures varies from person to person. Generally, flashing lights most likely to trigger seizures are between the frequency of 5 to 30 flashes per second (Hertz).
The likelihood of such conditions combining to trigger a seizure is small.

So I call bullshit !!

seedeevee (profile) says:


Don’t you have to prove damage before you can claim an assault happened? How’s this guy (Eichencrazy)gonna prove anything? He says he doesn’t remember anything after a seizure and doesn’t even remember what this particular flashing graphic looked like.

He seems like he is a pathological liar who should never have his word believed before verification.

Anonymous Coward says:

Re: Provable?

Don’t you have to prove damage before you can claim an assault happened?


How’s this guy (Eichencrazy)


gonna prove anything?

Twitter keeps logs.

He seems like he is a pathological liar

No he doesn’t.

A pathological liar is somebody who lies compulsively, even in cases where he has nothing to gain by lying.

I’m not aware of Eichenwald ever lying in a situation where he didn’t have something to gain from it.

who should never have his word believed before verification.

He’s done a lot of shoddy journalism in the past, and on at least one occasion engaged in a major lie by omission that suggests a lack of integrity. That’s not the same thing as lying about a seizure, though.

I think it’s reasonable to assume that the tweet existed, because Twitter has cooperated with his request for discovery. Beyond that, well, it’s for the courts to decide. But based on Twitter’s cooperation so far I’m leaning toward believing he’s telling the truth on this one, even if I don’t care much for the guy.

Anonymous Coward says:

He says he doesn’t remember anything after a seizure and doesn’t even remember what this particular flashing graphic looked like.

The facts can be verified from records held by Twitter. The only questions will be whether the person associated with the IP was the one who posted it, and whether they intended to cause harm.

Anonymous Coward says:

I disagree that he shouldn’t be harmed. He’s obviously one of our government’s media mouthpieces, and attempted to smear and discredit Wikileaks because they dared to report on our political establishment’s corruption. Since our government is spying on us all, lying us into wars, and attempting to use propaganda to discredit legitimate media sources, it should be considered an enemy of the people, as should anyone working for it and repeating its propaganda in print.

Enemies should be destroyed.

Thad (user link) says:

Re: Re:

Was that the same article where he spent the whole time telling third-party voters they could go fuck themselves, but in that cutesy euphemism way reporters have where they won’t use the word “fuck”?

Yeah, dude’s an ass. Irrelevant. “He’s an ass” is not justification for doing physical harm to someone.

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