Attack of the Killer GIFs (Update)

The charges against John Rayne Rivello* for sending Newsweek writer Kurt Eichenwald, “a disabled person,” a twit with a flashing GIF raise a great many issues that, beyond whatever twisted notions compelled Rivello to do such a thing, create challenges for criminal law. Rivello has been indicted federally, and locally. The latter jurisdiction has charged him with aggravated assault with a deadly weapon.

A deadly weapon? The indictment provides a laundry list of possibilities. A tweet. A graphic interchange format. An electronic device. Hands.

Under Texas law, a “deadly weapon” is defined as:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury;  or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The first definition is largely superfluous, being subsumed in the second. The second essentially is limitless, the only caveat being that it’s capable of causing death or serious bodily injury. In this case, Eichenwald, an epileptic, claims that the flashing GIF could provoke (or, it’s unclear, did in fact cause) a seizure, and that a seizure could cause death or serious injury.

While Texas law will obviously be applied to this Dallas indictment, the broader question should reverberate across the country and around the internet. As much as this could be chalked up to one nutjob and a most peculiar fact pattern, the reality is that someone put what little part of their mind that actually worked to figuring out a way to weaponize his twit.

Others will do so as well. How, I can’t imagine, but I have no doubt the crossover from the digital world to the real world will happen. And, I note, that we’re not talking here about the horrifying trauma of hate speech and microaggressions, but physical harm.

Assuming, arguendo, that the breadth of the definition of “deadly weapon” will, as in Texas, encompass any and all means by which physical harm can be inflicted by one person on another, this fails to answer the question of whether a GIF can satisfy the definition of a weapon (deadly or otherwise).

The definition says “anything,” which might suggest that it’s without limitation. However, even that word presupposes that the “any” applies to a “thing,” that thing being a physical object. This is why the indictment includes the four items rather than merely the GIF.

However, the alternative things present problems of their own. Is a “tweet” a weapon? Like a GIF, it’s not a physical thing. It reflects speech and expression, and if the twit itself is the weapon only if it is of the sort that can inflict harm, is its “criminalization” not content-based? Obviously so, though that doesn’t mean it couldn’t be interpreted to fall under the speech integral to a crime exception. But is it a thing?

An electronic device is obviously a physical thing, and thus susceptible to being a deadly weapon. Its mostly likely use is to hit someone over the head with one. But is its use to transmit a digital communication a thing “capable of causing death or serious bodily injury”? The contention is circular, much as a “gun” can shoot bullets or bubbles, and which it shoots determines whether it’s fun or deadly.

Hands is a stretch of the worst order. They are an integral part of the defendant, and can’t be a weapon unless our ordinary existence is inherently a weapon.

So we come back to the GIF. This is where the digiial world defies definitions and concepts created for a physical world. You can see a GIF, but you can’t touch one. It appears to “exist” but it’s no more than ones and zeroes in code. Can a GIF be a thing for purposes of the definition of a weapon?

Some will see the answer in analogies. Isn’t a letter in the mail containing anthrax an assault? Of course, but then, the powdered anthrax is a physical thing. It fails to answer the question. Others will see the answer in the outcome, whether the fact that harm was allegedly caused makes the mechanism by which it was caused a thing. In other words, if a GIF can do harm, then it is, therefore, a weapon.

But that’s a dangerously slippery slope. Theoretically, harm can follow all manner of conduct, twits included (and the physical act of tapping out a twit is, without question, conduct even if the content of the twit may be speech) in ways that we may not yet be able to imagine. After all, who would have thought this flashing GIF could provoke a seizure? We would thus be put in the position of creating an outcome-based rule, a crime, without grasping its unintended consequences and less than desired results.

Even the inclusion of an intent requirement fails to provide sufficient limits to what could conceivably be charged as a weapon in the digital world. People regularly write horrible twits, Facebook posts, for the deliberate purpose of hurting others.

Or perhaps the facts of this case, that Eichenwald suffers from epilepsy and can potentially be physically harmed by a flashing GIF, are so unique that holding a GIF to be a deadly weapon will have no collateral consequences and, well, there is no concern that this will create a precedent for which we will later suffer for our lack of foresight.

But for now, the issues exist and the answers are either very easy or not easy at all. Given the potential that people like Rivello will find ways to do harm using the internet in ways normal people can’t imagine, the decision of whether to make a GIF into a weapon may well be one of the most difficult ones we face as we transition crime from the physical to the digital world.

Update: While I lacked a sufficiently fertile imagination to come up with examples that would create the conflicts that make the physical world definitions of deadly weapon problematic in the digital world, Eugene Volokh did a far better job. For all you easy-peasy folks, it’s not.

*Keith Lee has a gaggle of posts providing the background of the case.

73 thoughts on “Attack of the Killer GIFs (Update)

  1. Fyodor

    Wouldn’t it make more logical sense for the weapon to be Eichenwalds’ home computer and that the “use” would be configuring it (via tweet) to flash images epilepsy-inducing at him. If I saw a hole in your ceiling so it falls on you, the weapon would be the ceiling, not the saw, right?

    It seems like we could see more computer-induced assaults as more and more devices incorporate remote electronic control. If someone figures out how to hack your car to crash or your stove to blow up, there’s going to need to be some kind of legal framework for handling it.

    1. SHG Post author

      Lots of questions and very unsatisfying answers. Like you, I suspect there will be a great many prosecutions coming out of the digital world, and we are seriously ill-equipped to deal with them.

    2. Erik H

      But there’s no use, just the provision of a link. That isn’t “hacking” by any stretch; it’s simply misdirection.

      Say I rickroll you: I haven’t “hacked” or “used” any of your devices. You have remained in full control, you just clicked on something you were ill-advised to click.

  2. Patrick Maupin

    If you hack somene’s car to kill them, is the weapon your computer, their car, or the tree that caused the sudden stop?

    You hack a car by sending it malicious instructions, arguably turning it into a weapon.

    Likewise, as you point out, a GIF is not a thing, but neither are the instructions sent to the ill-secured car. The GIF likewise contains instructions — for the creation and display of a light pattern. The victim’s computer was sent these instructions, arguably turning it into a weapon, if the car was the weapon in the previous scenario.

      1. SHG Post author

        He did, but since you’re playing, let’s consider a twist: Hacker decides to screw with a pal by making his car go no faster than 30 mph on a highway, a frustratingly slow speed, to piss his pal off. Nice guy driving the speed limit doesn’t notice that the car in front of him has suddenly slowed to a crawl, sees at the last minute and swerves, killing the family in the car in the opposite lane. No intent to harm. What then?

        1. Patrick Maupin

          If the prankster was arguably “driving” the vehicle (albeit from a distance), and going slower than a posted minimum, in a jurisdiction where that action could lead to manslaughter charges if he were driving in the traditional manner, that could certainly be a criminal problem for him.

          And, of course, some prosecutor somewhere is going to get cute and explain that those innocent people died during a carjacking. Lots of argumentation about whether the elements of robbery and the underlying theft occurred. Who knows how that will go?

          But the bigger issue might be tort, and the bigger-pocketed car manufacturer might have some of the biggerest issues with that, sustaining lawsuits all around for building a hackable vehicle, even from the car’s owner, who had to watch helplessly as his car wouldn’t respond to the accelerator to get the hell out of the way before someone died.

        2. Jordan

          What makes a weapon weapon in Texas is stupidly broad. We agree that hands goes too far. From there, an electronic message specifically intended to cause physical harm isn’t too far a leap.

          That said, I don’t think that triggering an epileptic seizure would constitute serious bodily injury. The Texas definition requires either permanent disfigurement, or protracted or prolonged loss of use of some major bodily system. A seizure that passed in seconds or minutes, and whose aftereffects faded within a few hours, would pretty clearly not fit the definition.

          In fact, that is how the definition of deadly weapon got so broad. Aggravated assault is either (a) using a deadly weapon to commit an assault, or (b) committing an assault and causing actual serious bodily injury.* In the case cited in the comment above, Mr. Lane beat the ever living crap out of his wife. The concussion and bruises were not serious bodily injury, but the prosecutor (and the appellate court) was sufficiently upset to decide that it should be a felony. The only way to get there was to find that his hands and feet, in the manner of their use, COULD have caused serious bodily injury.

          Bada bing, bada boom, his very serious simple (misdemeanor) assault becomes a felony aggravated assault. And without making them look too dishonest.

          * “Battery” is not a thing in Texas criminal law. It’s all called assault, from the threat to the touch/beating.

          1. Patrick Maupin

            A seizure that passed in seconds or minutes, and whose aftereffects faded within a few hours, would pretty clearly not fit the definition.

            Yeah, seizures won’t hurt you. Well, except for your brain, but you weren’t using that anyway, right?

            1. Jordan

              Causing a seizure would constitute bodily injury, but not “serious bodily injury,” as defined by the statute. “Bodily injury” is about whether something “hurt you,” as you put it; SBI is about causing the permanent or long-lasting loss of use off body part. It requires the sort of injury means that you can’t return to normal living after a few days’ recuperation. Even broken bones aren’t automatically SBI, unless the break interferes with living a normal life. (Arm/leg/hip–yes; finger/rib/nose–fact question for the jury)

              After a seizure, and once the post-iptic phase passes, my understanding is that most epileptics can return to life as usual. Injuries that have resolved a few days later aren’t SBI, no matter how bad they hurt at the time.

            2. Jordan

              No, I did read it. But it discusses the cumulative effect, over a period of at least 10 years, of seizures in patients with “severe intractable epilepsy.” Not surprisingly, the decline was likely to be worse as the patient’s frequency of seizures increased.

              I was talking about triggering a (singular) seizure. Why would a victim ever knowingly look at that GIF again?

              The cumulative effect of many punches to the head over time is often debilitating brain injury. The more punches one takes, the more extensive the damage is likely to be. That doesn’t mean one punch to the head caused serious bodily injury.

          2. LocoYokel

            I just happen to live in Texas and have a friend that, in his younger days, studied martial arts. He once told me that if he ever got in a fight he had better be defending himself against multiple opponents or he would be going to jail for assault with a deadly weapon. Said weapon being his hands and feet that were trained to inflict serious injury and even death. Not sure exactly how true that is as neither of us is a legal professional and I never had occasion to ask a lawyer about it, but I presume that the topic was discussed as a part of his training. This particular conversation happened about seventeen years ago as we were discussing his teaching his daughter self-defense.

            Point being, that there are at least some circumstances where there is a potential for hands to be considered deadly weapons. You crim law types can discuss the limits and reality of this.

  3. Eric Miller

    If Mr Rivello is convicted, does that precedent create a burden on one to ensure that the likely viewers of his social media post won’t be harmed by the post? I recognize that Mr Rivello seems to have tried causing harm intentionally and knowingly. Wielding a deadly weapon without regard to potential harm, however, does sound reckless. If I share a GIF on Facebook and tag a small number, let’s say three, people, is it reckless of me to not research whether they are epileptics?

    1. SHG Post author

      Probably not. If the allegations are proven, Rivello knew Eichenwald had epilepsy and acted intentionally. Intention isn’t negligent or reckless.

  4. JAV

    It sounds a safe bet that expert witnesses will play a role, if not a big role. It seems the prosecutor has to have some way to convince jurors that this particular image was more than just potentially dangerous to someone with Mr. Eichenwald’s form of epilepsy. Cue the physicians.

  5. ehud gavron

    Eichenwald has epilepsy. He browses the net without a filter, viewing animated images, autoplaying videos, etc.

    My friend John has peanut allergy. He goes out on the town with a funky mask over his nose and mouth. He sees many peanuts but he never inhales their particles nor has anaphylaxis.

    When John sees someone eating peanuts he waves and hails them with his typical good morning cheer. He doesn’t have our US Federal Bureau of a̶n̶t̶i̶-̶t̶e̶r̶r̶o̶r̶i̶s̶m̶ Investigation hunt them down and hand them to the nearest AUSA because of three things:
    1. It is not intentional
    2. He has taken reasonable measures to avoid being everyone’s victim
    3. No harm has been caused.

    In his case the “attack” was intentional. However, the sending of twits is not unlawful. The composition of the twit is first-amendment protected stuff. He took no reasonable protection measures. No harm was caused. As expected “weaponized” messaging will only get worse, but fundamentally it *IS* messaging, and whether it is a GIF to an epileptic or a bad sad bad message to a snowflake that caused instant-PTSD, protected speech should and must continue to be protected.

    NB As a computer technologist, I point out that Eichenwald would do well to browse the Internet without animated graphics (images or video).

    E

    1. SHG Post author

      Nuts are things. If used intentionally, then they can be weapons. This isn’t a hard issue.

      As for shifting the burden to self-protection to Eichenwald against someone who intends to harm him, that’s a dangerously slippery slope in itself. It’s stupid to leave your keys in your car, but it doesn’t turn you into the car thief. It’s an excuse. It’s not a solution.

      1. ehud gavron

        I should have been more clear with my snowflake comment. One day a snowflake will say that a bad sad bad message gave him/her PTSD and that person should be in prison. There is no onus on the “victim” to do anything nor am I victim-blaming.

        Eichenwald isn’t required to do anything… although as someone who is aware of his susceptibility he should take measures. Saying that isn’t victim-blaming; it’s suggesting he should use available tech to better protect himself.

        E

        1. SHG Post author

          Does someone sustain serious bodily injury from PTSD? If so, we’re already way down the road. If not, then that’s a possibility that needs to be considered in reaching a rule for digital weapons.

          1. D-Poll

            If someone sustains serious bodily injury from a seizure, then yes, absolutely.

            Let me provide some background here. I’ll be brief, I promise. Fundamentally, a seizure is a kind of thought. Normal thoughts are just electric pulses cascading through the brain; a seizure happens when the brain happens to have a feedback loop that allows some electric pulses to temporarily go out of control and spread across the whole brain, often setting off the muscles indiscriminately, causing the disorganized motion we think of as “seizing”. Seizures, then, are just thoughts that a certain brain isn’t able to think safely – which is why they can sometimes be triggered by pictures. (Anyone else know BLIT? For some people, the Parrot is real.)

            So if a seizure, just a certain kind of harmful thought that causes people to behave in dangerous and sometimes fatal ways, counts as serious bodily injury, then so does PTSD, which is just a certain kind of harmful thought that causes people to behave in dangerous and sometimes fatal (such as by suicide) ways. PTSD might just be more dangerous, since seizures only rarely put other people in danger, while “going postal” is a classic possibility in PTSD.

            1. Patrick Maupin

              Seizures are not “just thoughts” — they can cause real physical damage to the brain.

            2. D-Poll

              Patrick Maupin: You misunderstand. Seizures are just thoughts. Thoughts, being real physical events in the brain, can cause real physical damage to the brain. That’s the point.

            3. Patrick Maupin

              Ah. You best not go to sleep. If you stop thinking about your heart, it might stop beating.

            4. D-Poll

              Patrick Maupin: I suppose when you’ve already decided what outcome you want, that probably sounds like a less than completely facile argument. Of course, people with damage to the brain stem really do die because they stopped unconsciously thinking about their hearts and their hearts, indeed, stopped beating; but I have to admit I don’t really think this will convince you. After all, you can’t feel your brain thinking about your heart all the time, and if it feels different, it must be different, right?

  6. John Lentini

    Does the law require a thing to be a physical object? My dictionary certainly does not. Definition 3: an action, activity, event, thought, or utterance: she said the first thing that came into her head | the only thing I could do well was cook.

    1. SHG Post author

      When it comes to a weapon, yes. The law has been fairly clear that a thing that is a weapon is a physical object, not a “thought.” Then again, if a word causes pain, then it’s a thing if the dictionary says so. See how that works?

  7. Quinn Martindale

    That horse is already out of the barn when it comes to Texas law. The Court of Criminal Appeals (the highest criminal court) has essentially held that the fact that death or serious bodily injury occurs inherently means that a deadly weapon was used (which has included water and hands).

    1. SHG Post author

      Water I understand. Hands surprises me. I remember when NY held boots to be a deadly weapon, worn on the foot that kicked. It was a shocking holding.

      1. Quinn Martindale

        Found the case I was thinking of – Lane v. State, 151 S.W.3d 188, 191 (Tex.Crim.App. 2004). Defendant punched and kicked his wife, giving her a concussion and bruises. Same basic set up as the Eichenwald case: assault causing bodily injury + deadly weapon + enhancement to get to a first degree felony.

        1. SHG Post author

          So, circular reasoning it is. Thanks, Texas. Damn, that’s one awful decision, reaffirmed over and over.

        2. PAV

          I almost want someone in Texas to purposefully startle my by slamming a board game onto a wooden table, causing a loud clap. Last time that happened on accident, I had a bruise up half my leg from the fall it triggered.

          Checkers: a deadly weapon in Texas.

      2. Keith

        I recall a CA action that held the sidewalk to be a deadly weapon when someone was slammed against it. If an object can be a deadly weapon without being physically manipulated by a defendant, can the electrons in the twit serve the same function?

        1. SHG Post author

          Whether you hit someone’s head with an object or hit an object with someone’s head, there remains at least an arguable comparison. Not clear how the analogy applies to electrons.

      3. DRT

        A police officer in Ottawa, Ontario, was recently charged with “assault with a deadly weapon” for killing a man by punching him with Oakley gloves with carbon fiber reinforced knuckles. We’ll see if he gets convicted. It’s a weapon if it’s intended to be one, isn’t it?

          1. wilbur

            Florida has a 2nd degree felony of aggravated battery, which includes use of a deadly weapon or proof of an intent to cause great bodily harm. It also has a 3rd degree felony named felony battery, which proscribes a battery which causes great bodily harm.

            So the bar fight punch that by a fluke blinds the recipient is chargeable as a 3rd degree felony, without requiring (the often difficult to establish) proof of the intent to cause great bodily harm.

    2. DaveL

      If we’re going to go that route, why bother with “deadly weapon” charges at all? Why not simply admit it is the outcome that is being punished, not the instrumentality, and cut out the middleman?

  8. David Meyer-Lindenberg

    Let’s say my coworker, whom I hate, has angina, which I know about, and a son who looks nothing like him. I lift a hair off his desk and send it in for paternity testing. The letter I receive confirms my suspicions, so I forward it to him, fully intending to give him a nasty shock. He opens it, reads it and suffers a heart attack.

    Have I assaulted him with the letter, which is indisputably a physical thing?

      1. David Meyer-Lindenberg

        I think sending the letter would meet the elements of agg assault. I also agree that read this way, the statute imposes criminal penalties for speech, and does so a manner that’s content-based. Finally, I’m extremely uncomfortable about calling sending the letter “speech integral to a crime,” because per Volokh, that category applies when the speech in question tends/attempts/makes a threat to cause illegal conduct *other than the act of speech itself*.

        That’s specifically not the case here: if sending the letter is both speech integral to a crime and an act of agg assault, then it must be integral to itself, which is impermissibly recursive (and, because it’s true of anything, could be used to justify a ban on any speech whatsoever.) So I’m forced to conclude there’s a constitutional problem with the agg assault statute if it can be read to encompass sending the letter, let alone the GIF, which is much more attenuated as a “deadly weapon.”

        1. Mark M.

          I don’t think the letter in your hypo would meet the definition of a “deadly weapon” under Texas law. First, the death was caused by the information which was transmitted, not the physical medium which simply carried the information. Second, I’ve found no Texas cases where a “letter” in the traditional sense has been found to be a deadly weapon. Although, there are at least two Texas cases where rolled up paper with a staple stuck into the end of the roll was found to be a deadly weapon. Both cases were set in penal institutions, however.

          1. David Meyer-Lindenberg

            And thank God for that! But by the same reasoning, a firearm is just the transmission device for a bullet. If it can “inflict death,” why shouldn’t a letter be able to “cause death?” I think the language is comfortably broad enough to allow for a letter to be a “deadly weapon.” “Use” is a pretty flexible word.

            Having had a day to think about it, I’m going to differ from Scott and say it’s not clear to me that punishing the sending of Rivello’s GIF, as opposed to my letter, would be a content-based restriction. The communicative content is irrelevant; it’s the physical property of strobing that distinguishes Rivello’s from other GIFs. I think a hypothetical ban on sending strobing images could likely be content-neutral, and thus survive O’Brien & Co.

            1. SHG Post author

              Good point. So we criminalize the transmission of strobing GIFs because someone who sees it might have epilespy? And peanuts too. I love peanuts.

            2. Mark M.

              Late return to the party, but a gun is specifically designated a deadly weapon in Texas, with or without bullets. Also, for deadly weapon analysis, there’s a more direct connection between a firearm and a bullet. A bullet isn’t likely to be capable of causing the risk of serious bodily injury or death without a firearm being involved. That same connection doesn’t necessarily exist with letter and lethal information. One doesn’t require a letter to transmit the lethal information here. If the info had been sent via email or read aloud, is the monitor or voice respectively going to support a deadly weapon allegation? Fascinating.

  9. Allen

    What fresh hell? I’m still stuck on one portion of the Trolley Problem w.r.t. driverless care programming. Of one thing I’m certain, society is wholly unprepared for much of this.

  10. Marc R

    A gif is physical. Light waves, pixels, computer code itself is composed of electrons that cause the computer to physically react to those codes.

    Obviously the physical strength of a gif can’t pierce the skin like a car or thrown cellphone used like a weapon, but the gif itself (1) is a physical object versus a mere thought in the mind not acted upon and (2) it did actually cause the intended harm.

    If it was a chain email or the sender didn’t know of the receiver’s condition then we wouldn’t be discussing a crime.

    The slope slides though: what if the sender knew the receiver always has a seizure when he sees clown photos? At some point crimes can’t cover every ideosyncracy. Unless the police need a crime to match the victim. And around it goes.

      1. Marc r

        I think the law distinguishes creepy clowns from downtrodden hobo clowns. The latter is punishable with civil fines unlike the former which is an apex offense.

    1. D-Poll

      Sure, sure, a GIF is physical in the limited sense of the word “physical” you’re implicitly using here, which is to say, it is an object of physics. So is a wish, which, after all, is composed of electrons and ions and neurotransmitters in the brain which cause the brain to physically react to the information they encode. So are the photons reflecting off your (hypothetically speaking, of course) hideous, twisted face assaulting my virgin eyes when you go out in public. Cartesian dualism notwithstanding, any “mere thought in the mind” is a physical thing if a GIF is, while a GIF is a mere thought in the computer’s mind. Is that really the rabbit-hole you want to send the law down?

  11. Erik H

    It may be quite relevant that the tweet isn’t “pushed” onto the recipient’s computer. You only get it if you click on it, or if you allow yourself to view it. It isn’t like a letter containing anthrax, it’s more like a note on a public bulletin board with “HEY SCOTT, READ THIS!!” written on the outside.

    1. SHG Post author

      An interesting distinction. But is the “victim” to blame for doing what the perp asked of him? Should this be a reasonable person test, and if so, what is a reasonable person to do here?

      1. D-Poll

        People who do BDSM (I know a few) are very, very adamant that “assault” that is consensual shouldn’t be a crime. Maybe, then, the “victim” might not be “to blame”, but complicit for agreeing to a foreseeably potentially harmful request. There are counterarguments, of course. There are always counterarguments.

  12. Fubar

    From the introduction to my forthcoming treatise on the digital scala naturae, from Plato through the Via Negativa of Pseudo-Dionysius the Areopagite, to the Texas Court of Criminal Appeals:

    Killer apps will display killer GIFs,
    Slippery slopes in a chain of what ifs.
    Hypnotized by the glitter
    Of Facebook and Twitter,
    We can stampede off all of those cliffs!

  13. Jordan

    What about a light, such as a laser, that you knew was so bright that it would permanently damage a person’s eyes, and you intentionally shined it at their face to do just that? Or an electromagnetic pulse strong enough to disturb a person’s cardiac rhythm? Or a device that generates sound so loud as to cause permanent deafness?

    In each cases, you have a physical object (the light or EMP machine or stereo) which generates energy that is strong enough to cause serious injury. I think those are pretty clearly weapons, and using them against another would be assault. Would the generator or the energy be the “weapon?” (Does that matter?)

    if it’s the energy, how is a GIF, which is simply a series of light waves in a pre-programmed pattern, any different? If it’s the generator, then the computer is the weapon and the light emitted is just the bullet.

    From a standpoint of physics, there’s no difference between how a strong light and a gun do their business: they simply impart more energy into the body, or a part of the body, than it can withstand without damage. It comes in several forms, but energy is energy. We learned to harness mechanical energy for weapons during the Stone Age; we’re now figuring out how to do the same with some other types of energy.

    1. SHG Post author

      Fine questions, though answering a question with a question is unhelpful. I ask questions because I don’t know the answer. You pose questions as a cheap method of making a point, as you offer no definition. Someone else can respond with their own questions that undermine yours. That’s the difference in coming up with a viable rule versus the sort of cheap techniques that manipulate non-lawyers because they’re disinclined to realize that you’ve got no viable answer. That’s what gets us into these problems and makes people stupider.

      1. Jordan

        Sometimes answering questions with questions forces the reader to rexonsider and realize that they can answer their own initial question with information they already know (but haven’t yet considered).

        If that’s not sufficient here, how’s this:

        I see no rational basis for requiring a physicial object in order to have a weapon. But, assuming that there is such a requirement, it’s met here.

        Throughout human history, we have used weapons that harness mechanical injury to cause harm through some sort of physical contact, and so that’s what our law has most often dealt with. What’s actually causing the harm is energy, but the thing that imparts the energy is what we can see, and so that’s what frightens us, and so that’s what we’ve traditionally focused on.

        Poisons or pathogens are a bit different because they don’t punch a hole in something that has to remain hole-free to work right, and so they require a bit of thought to get to accepting them as weapons. But since it has a physical form, if you squint hard enough, you can get there.

        With the energy “weapons” I asked about, the law would probably be that the device was the weapon, in the same way that we say that the gun (as opposed to the bullets) are the weapon. If so, then Mr. Eichenwald’s computer was the weapon here (if we accept that a seizure is SBI), and the GIF was simply the form that the damaging energy took. The computer is the laser, EMP machine, or stereo; the GIF is the laser beam, electric pulse, or sound waves.

        If you insist on having a physical object, we can say the computer is it. But the way the law is written, it prohibits (and felonizes) using any THING (physical or not, by my reading) that would allow you to inflict more harm than you could by simply punching or kicking. Whether that thing is something we can see doesn’t strike me as particularly relevant.

        Here is a non-rhetorical question: Would your problem accepting this setup be the same if that particular GIF would have triggered a seizure in a normal, healthy person, or is the problem here that we’re dealing with an eggshell plaintiff?

        1. SHG Post author

          I now see the crux of your problem. You, Jordan, are not the writer, but the reader. This isn’t your soapbox for prolix comments. Second, your “solution” is worthless. No one in the world gives a fuck whether you “see no rational basis” for anything. You’ve demonstrated no grasp of the issue whatsoever, despite your wasting all those words. It’s now apparent that you didn’t intend to make people stipider, but that was all you had to give. Off to reddit you go, Jordan.

      2. Keith

        I’ve been thinking about this one. My first thought was that maybe this should fall into a category similar to poisoning instead of an assault category. If I intentionally leave cyanide around a your house intending your kid to walk by and get hurt by it, or I put some antifreeze in your drink, I’m clearly committing a criminal act under various TX statutes.

        A little googling shows TX seems to have a lot of laws to choose from here, in their criminal code. Pointing a laser (at officers) is prohibited under Sec. 42.13 Use of Laser Pointers. But the virtual nature also made me think of something like a “hoax bomb“, which is specifically called out in the TX code under Sec. 42.13. There, making someone believe something, even in the absence of something physically there, is codified as a criminal act.

        Why not apply a similar logic when when I send a digital version of something meant to poison / harm you?

        1. SHG Post author

          There are a few general paradigms for crafting criminal laws:

          1. Write a law that criminalizes the evil you want to prohibit. The problem with this is that while it make the conduct you want to prohibit a crime, it tends to make plenty of other conduct a crime as well, as it fails to appreciate benign conduct that meets the elements.

          2. Write a law that criminalizes some of the evil you want to prohibit, but contains exceptions that will allow for benign conduct not to be prohibited. This is really hard to do and let’s some criminals walk away. People can’t stand this when conduct that they feel is terrible isn’t covered by a crim law, and usually ends up with someone writing a new law using 1 above lest any criminal get away.

          3. Write a law that is sufficiently precise to cover all the conduct that reflects the evil, but not any of the conduct that doesn’t. The problem here is that we until we have a full appreciation of how digital media will be used, will cause harm, etc., we wont know what to write or whether it can be accomplished. And even if we can fix a point in time when we know the answers, we can never be certain that somebody won’t come up with some tech that fits within the law that doesn’t render the efforts ineffective.

          Writing laws is hard. Writing good laws is really hard. Appreciating unintended consequences is really, really hard. That’s why Blackstone’s ratio matters as a guiding principle. And despite our best efforts, it continually results in outcomes that defy our best intentions.

          1. Ken Mackenzie

            Is there a way to provide a copy of this comment to every elected member of a legislature on their first day in the job?

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