from the trolling-with-a-deadly-gif dept
Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he'd had a seizure on the spot. As we noted at the time, we're no fans of Eichenwald. In our opinion, he's an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he's no fan of us either.
Still, the lawsuit was interesting. At a first pass, the very idea that a "tweet" could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It's not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle "@jew_goldstein"). But, then again, perhaps we didn't expect that the troll would do this:
That, is an image of John Rivello holding up his own driver's license. And it's attached to the very iCloud account that was attached the iPhone that he used, via an "untraceable" Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It's quite fascinating.
The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter -- which also turned up a bunch of direct messages that are kinda useful to prosecutors:
If you can't see those, it's a series of Direct Messages from the "@jew_goldstein" account, saying things like that Eichenwald "deserves to have his liver pecked out by a pack of emus." "I hope this sends him into a seizure." "Spammed this at [Eichenwald] let's see if he dies." "I know he has epilepsy."
Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law -- 18 USC 2261A that includes this:
(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A)
That whole "intent to kill, injure, harass, intimidate" part is helped along with direct tweets saying something like "I hope this sends him into a seizure" and "let's see if he dies."
Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn't via a search warrant -- it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info... but also noted that it was using a specific model iPhone.
So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that's where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this:
If you can't see it, that's the flashing gif that @jew_goldstein sent Eichenwald and it says "You Deserve A Seizure For Your Posts." This was the same one that Eichenwald's wife found on Kurt's computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello's iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he'd died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll.
So that's a lot of pretty damning evidence. As lawyer Keith Lee notes, it's something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn't take that many and didn't seem to realize how many other ways there were to track him down.
I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet -- but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here -- and it's a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm -- which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place.
Of course, I'll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee's post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn't surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn't just annoying someone with a meme -- it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don't do that.
Either way, we now have an actual indictment for a crime of assault with a deadly tweet.
If you can't see that, it's the grand jury referral, noting that the offense is "aggravated assault with a deadly weapon" and it notes that:
... said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.
We live in such strange times.