Assault By Twitter In The First Degree

Not the cries of Jessica Valenti of death threats to her children, after she’s done with her personal authentic engagement for the morning because she has, you know, fans who need her to know what they’re supposed to hate. And not because Newsweek reporter Kurt Eichenwald has done anything to deserve appreciation for his flagrant intellectual dishonesty. Rather, can the mechanics of an internet medium serve as means of committing assault?

Maybe. It depends.

Having been deluged by the cries of those who want to elevate hateful words into the equivalent of a good beating, the type that breaks an eye socket or two, rational people are inclined to shrug off claims that social media has the potential to be used as means of assault. What happened to Eichenwald raises a very different problem:

The question arises in the recent discussion by journalist Kurt Eichenwald of the Twitter threats he has received from Trump supporters. After Newsweek published his story investigating the complicated relationships the Trump Organization holds with foreign governments and business interests, Eichenwald received numerous responses on Twitter, many of them not only critical but threatening. One stood out, leading Eichenwald to write a new article. The tweet (since deleted) referred to Eichenwald’s epilepsy and included an embedded video. When Eichenwald played the video, he writes, he instantly identified it—complete with flashing lights and images—as an epileptogenic, or seizure-triggering, video. He dropped his iPad as soon as he recognized the video’s characteristics.

There are a great many connections here that are assumed. Whether they are true and provable, who knows. But it raises a weird circumstance that could be possible, that some miscreant thought Eichenwald’s words so horrible (sound familiar?) as to warrant an effort to cause him an epileptic seizure.

This isn’t rick-rolling. Whether the video could trigger a seizure isn’t the point either. Nor does it matter that Eichenwald didn’t actually suffer the seizure, though he may have suffered iPad damage in the process of avoiding any potential harm.  The point is that Twitter had the potential to be used as a delivery mechanism for harm. The point is that, if this piece of shit intended to harm someone whose only connection to him was via the twitters, he found a way to accomplish it.

Trump supporters have sent death threats, mockery, and anti-Semitic imagery to journalists asking questions about Donald Trump’s finances, taxes, charitable giving, and ties abroad. The First Amendment doesn’t apply to Twitter, a private company, but many of these disturbing tweets could be analogized to protected hate speech. (And “true threats” can nonetheless be prohibited under the First Amendment.) Nearly all of them probably violate Twitter’s own terms of service.

Oh, come on. You knew there would have to be a Trump connection to serve as a news hook. It is, of course, utterly irrelevant to the post, but never pass up an opportunity. As for the gratuitous “true threats” mention, at least she links to a decision, if not an explanation, that undermines her mention, as commonly misunderstood as the “fire in a crowded theater” trope.

In the case of the epilepsy triggering video, however, the person who trolled Kurt Eichenwald may have committed criminal assault.

Twitting a link to a video? Well, yeah.

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.

This may not be the clearest exposition, and makes some fairly obvious conflations, but the point is that the delivery mechanism, the distance, the means, does not change the elements of the offence.

Nor is this about Twitter, but applicable to any social medium, and more generally, any malicious use of the internet.  Consider the use of internet hacking to interfere with an automobile, which can already be accomplished.  Hackers start out trying to see if they can do it. But once they know they can, the next level is doing it purposefully. What happens if someone hacks your brakes at 70 miles per hour? Bad things.

Granted, assuming the twit sent to Eichenwald satisfied all the elements of an offense, it’s still a highly limited situation. It would only apply to someone who suffers from epilepsy, and even then, there is no certainty that a video will, in fact, do harm. No, epileptogenic videos are not the same as a gun, not in the likelihood or efficacy in causing serious physical injury or death.

But this is just the start of a problem. Imaginative malevolent actors will figure out a way to use social media, the internet, to do harm to others. No, not calling Brianna Wu mean names, but actual harm.

Despite the obvious fact that  no one sick enough to want to cause actual harm to another person is going to pay attention to anything here, and realize that another person’s words, no matter how much they anger you, are not a justification for causing actual harm, just don’t do it. Don’t do it because it’s sick. Don’t do it because it is you, not the person who wrote the words that made you sad, who is the biggest loser. Don’t do it because it will give rise to ever-increasing cries of the evils of the internet and how it must be regulated and controlled and criminalized, for the epileptic children.

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.


11 thoughts on “Assault By Twitter In The First Degree

  1. Jay

    I think you accept the risks when you click on links from strangers, particularly when we’re all aware of viruses and malware, and even more so when you have been alerted that a bunch of folks out there really hate your guts.

    In any case, sending a link to a virus would be a far more obvious way to harm someone via twitter. Imagine if they are holding a Samsung Note 7!

    1. SHG Post author

      Interesting defense, assumption of risk. But I lack the imagination necessary to appreciate all the potential ways to do harm over social media. I only realize the possibilities afterward. I am not a digital native.

      I wonder if there are still great deals on that Samsung Note 7. I need a new cellphone.

      1. Marc Whipple

        Assumption of risk gets very broad very fast. IMO saying you assume the risk that somebody will maliciously target you because somewhere on the Internet there are flashy videos is a little much. Saying that someone assumes the risk of malicious acts meant to cause harm or the apprehension of imminent harm from a person they have not had significant interaction with is too far, again IMO. If I go to a gun show, I may assume the risk that some yahoo over at the next table will negligently point a gun at me in the process of examining it, but I don’t assume the risk that he will grab one, load it, and point it at my face while screaming “Gonna take you OUT!”

        And I can maybe get you one. I need to talk to my ordnance guy. I think they’re now covered under the GCA68.

      2. Earl Wertheimer

        Alas, the Note 7 is dead to you.
        You can’t get one, you can’t get two.

        So, this holiday look in your Christmas socks,
        as a pocket warmer, the Hiteo 7 rocks.

    2. Rick Horowitz

      If the analogy that was made about the epileptogenic video holds, the “you accept the risks when you click on links from strangers” nevertheless doesn’t.

      Again, if the analogy holds, imagine this defense to robbery: “Your honor, the charges against my client must be dropped. This so-called alleged kinda sorta ‘victim’ assumed the risk of being robbed when he approached the ATM, put in his card, and withdrew money. In front of a stranger.”

  2. Maz

    “You knew there would have to be a Trump connection to serve as a news hook. It is, of course, utterly irrelevant to the post, but never pass up an opportunity.”

    Considering Eichenwald was sent the link to the epileptogenic video by a Trump supporter, seemingly in response to his article about Trump’s links to foreign interests, I’m not sure how a Trump mention is gratuitous.

    But never pass up an opportunity, I guess….

  3. ex-EMT

    The miscreant that sent the tweet (IMHO) did not do much homework on photosensitivity and seizures caused by the epileptogenic properties of a video.

    I say this based on two major factors:

    1) My daughter had a juvenile epileptic seizure disorder, first noticed by me at age 2 when I first became an EMT in the mid-80’s. Of interest is that they tested her using a device that looks very similar to the virtual reality goggles people have been playing with. Juvenile epileptic seizures develop at a young age, and they can be triggered by bright flashing lights, but that is uncommon. When the neurologist would test her, it was done both in waking mode and sleep mode, and was tested using an EEG to measure brain waves. An actual epileptic seizure from photosensitivity based on an epileptogenic video would be a shot in the dark. Readers should read the great article you link to, which states only 3% or less of folks with epilepsy will suffer a seizure from an epileptogenic video. But the potentially bigger point is that photosensitive epilepsy is almost always for juveniles and adolescents, and more importantly it is a form of epilepsy that they “grow out of.” They test for juvenile epilepsy by doing a battery of tests (with a focus on the EEG brain wave) once per year, and once they pass age 18 and can go two years with no EEG seizure abnormality, they are considered to no longer have epilepsy, which means they do not take medication and have no epileptic precautions mandated (such as driving restrictions)

    2) The most common sorts of seizure disorders are not based on epilepsy. Only a fraction of adults (over 18) who have seizures are diagnosed with an adult epileptic seizure disorder. The most common reason for seizures in an adult are from a head injury. Once the brain is injured there is a risk for seizures for the rest of their life. There is no cure, because brain tissue is incapable of healing. The reason I point this out is that a patient with seizures from a head injury would not be prone to photosensitivity from exposure to epileptogenic lights. However, the “bright lights cause seizures” is a common myth for people when they think of epileptics. I am postulating that the Trump idiot who did this probably thought he was damn clever (like Trump), but his deplorable actions could have been deadly if the author had accidentally triggered it while driving

    3) Then there are the final group of patients who suffer seizures, which are the adults who will have a single (maximum of two to four) seizure but NOT have epilepsy. I offer this one because it happened to me. My doctor had prescribed me a new medication, and I had what is normally rare seizure from a medication reaction. These happen to adults all the time, and are not related to epilepsy or head injuries. They are in the “shit happens” category. I was 53 years old when I had mine. I was singing for church, and woke up in the emergency room. For a former EMT that is very disconcerting. It was quickly diagnosed by the physician care team, I spent a week in the neuro ICU and a medication change, and as long as I can do the two years with no EEG brain wave problems, I will be cleared and taken off the minor seizure medications they have me on.

    Why write this? One, people with a seizure disorder does not mean they have epilepsy. AS pointed out in #2 above, most adults with a seizure problem don’t have epilepsy, their seizures are from head injuries, and that means a video with epileptogenic properties would not cause a seizure. I just wanted to offer that I personally would hope that the Trump moron that did this could be prosecuted. I defer to your expert thoughts, but I am guessing that intent and knowledge of the authors medical history would part of the prosecution. I also wonder if the video used was one he made as a custom attack on the author, or that the shithead got lucky and found a YouTube video that had epileptogenic properties.

    Am I wrong in reading your article as a thought provoking piece on the ability of a miscreant to cause a negative physical reaction to cause medical harm? This is not unlike the infection of a computer from a virus, which is far easier than the attempt on this author. But it exposes how someone could try and cause harm if they know a persons health history.

    Scott, in your opinion, does the law have the ability to prosecute this type of attempt?

    1. SHG Post author

      This is very long. Very. This is mostly off-topic. It’s long. Did I mention that? I answered your question at the end by writing this post. Your comment is long.

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