from the legal-issues dept
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.
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:
Criminal defense lawyer Scott Greenfield also concludes it's quite possible:
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.
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:
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.
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))):
- Used the Twitter network system;
- to transmit/deliver an intentional attempt/threat;
- that they knew would be likely to inflict injury; and
- placed Eichenwald in fear of imminent bodily harm.
I’d say that it’s likely that Eichenwald has some merits to his claims.