Reporter Presses Charges Over GIF (And He May Have A Case)
After a Twitter troll sent Kurt Eichenwald a flashing GIF, he's threatening legal action. Lawyers say that's not crazy
On Friday, Kurt Eichenwald, the bombastic senior writer for Newsweek and contributing editor for Vanity Fair, tweet-stormed what appeared to be an outrageous set of claims: a GIF sent to him in a tweet had caused him to have a seizure, and he was going to do everything possible to find out who the anonymous Twitter troll who sent it was and make sure he was punished criminally and civilly. The “consequences,” he promised, “will be severe.”
Eichenwald is an established reporter, but can be prone to hyperbole and rants, especially online. (The incident happened in the wake of an erratic appearance on Fox News that even left-leaning, Fox-News-hating Salon admitted was “cringe-worthy” and “insane.”) So, many people did not seem to take Eichenwald seriously at first. Some even responded to his tweets with more flashing GIFs.
In this case, however, it looks like Eichenwald fully intends to make good on his promises. And, legal experts say, he may well have a case.
Generally speaking, GIFs and tweets are animations and words, and so generally can’t ‘assault’ anyone. But in this particular instance, says Keith Lee, a Birmingham-based lawyer who writes the popular legal blog “Associate’s Mind” and who has written about this case, they can.
“The thing that makes all of this unique is the fact that he’s epileptic,” Lee says.
Eichenwald’s epilepsy is public and well known, and he wrote extensively in October about how he says another person had tried to induce a seizure: by tweeting a GIF at him that contained flashing lights. (For a small number of people with epilepsy, flashing lights can trigger seizures.)
Last Thursday, a Twitter account that went by the handle “@jew_goldstein” (we’ll call it “JG” going forward, to avoid repeating a name likely created with anti-Semitic intentions) tweeted a similar GIF at Eichenwald, this time with the words “you deserve a seizure” on it. Shortly afterwards, Eichenwald’s account tweeted a message purportedly from his wife to JG saying that he had been successful, Eichenwald had had a seizure, and she had called the police to report him for assault. (JG’s account was quickly suspended.)
Lee says it doesn’t actually matter if Eichenwald had a seizure or not, as long as the intent to cause one was there. As Wired noted back in 2008, it is not only possible to trigger someone’s seizure with a GIF, they’ve also been weaponized in this way before, when hackers infiltrated a forum run by the Epilepsy Foundation and filled the page with “hundreds” of flashing GIFs.
The “you deserve a seizure” message would make it pretty difficult for JG to claim that he didn’t know or intend to cause one. It also, Lee says, constitutes a “true threat,” which means JG wouldn’t simply be able to claim freedom of speech. In fact, if the tweet can be classified as a weapon, freedom of speech wouldn’t apply at all. The fact that the “weapon” was sent electronically shouldn’t make a difference, nor should the fact that Eichenwald could have taken measures to prevent GIFs from autoplaying in his timeline.
“What really matters is the underlying intent of the person who committed the assault or the attempted assault,” Lee says.
Ronn Blitzer, a lawyer who writes for LawNewz, seems to agree, calling Eichenwald’s case “very winnable,” citing Texas penal code regarding assault. And Elizabeth Joh, a professor of law at U.C Davis, wrote for Slate back in October, when Eichenwald first wrote about these GIFs being sent to him, said “the person who trolled Kurt Eichenwald may have committed criminal assault.”
As Joh also noted, this does not, of course, ensure that Eichenwald’s attacker will actually be prosecuted. The police department in Dallas, where Eichenwald lives, did not respond to our request for comment, but told the Daily Caller that it was looking into the matter. It will ultimately be up to law enforcement to decide whether or not to pursue the case, and which police have historically been reluctant to do this when it comes to things that happen on the internet (unless the threats are against the police themselves). At this point, Eichenwald has no control over that.
He can, however, file a civil lawsuit against JG and appears to be preparing to do exactly that.
“I’m coming for you, you son of a bitch,” Eichenwald tweeted on Monday, with a link to a petition his attorney had filed to the court asking Twitter to hand over any identifying information related to JG’s account. On Tuesday, Eichenwald tweeted a copy of the judge’s response, which granted the petition and noted that Twitter said it would provide those documents. (It seems that Twitter wasn’t willing to go to bat for a user who had used its platform to try to give another user a seizure, for some reason.) It’s not certain, however, that this will lead to the identification of JG; he may have used a fake name and throwaway email address to apply for the account in the first place, but his IP address may be revealed and Eichenwald can use that to find him. This happens all the time.
But here, Lee says, is where Eichenwald may be out of luck. He can sue JG, but civil lawsuits rely on recovering damages the plaintiff claims were caused by the defendant’s actions. It’s not enough to show that Eichenwald had a seizure as a direct result of seeing the GIF.
“What are [Eichenwald’s] damages?” Lee says. “I don’t understand what the damages are in this situation … I can’t actually fathom a situation in which a civil suit actually wins or survives or goes anywhere.”
Alleging loss of income would be “highly speculative,” Lee believes, and he doubts a Texas jury will be very sympathetic to someone claiming intentional infliction of emotional distress via GIF. While Lee believes that what JG did was “awful” and that he should be held responsible for it, he thinks it’s a criminal matter, not a civil one.
This does, of course, assume that Eichenwald’s intention is to actually file a lawsuit. He may well be using pre-suit discovery petitions to find out who JG is and publicly expose him. Eichenwald has been very vocal about his desire to find out who JG really is. He has also threatened to call the employers of people on Twitter who make fun of his reaction to the alleged attack. The threat of a civil suit may simply be a means to an end to dox his attacker. That is something Lee is not comfortable with.
“I don’t like wealthy or well-funded litigants using the civil court system to pressure or browbeat people in situations like this,” Lee says. JG doesn’t make for a very sympathetic case, but it would be easy for others to abuse pre-suit petitions in this way to dox people who do far less reprehensible things.
If Eichenwald is successful in doxing JG, the next not-so-anonymous Twitter account to be revealed via the legal system may well be another one of Eichenwald’s attackers. Since he tweeted about his intentions to ensure that his GIF-attacker is brought to justice, more trolls have sent him eliptogenic GIFs, clearly doubting that there is anything anyone can do to them. They may want to rethink this, Lee says. Twitter has shown that it will release any identifying information it has on them if asked and Eichenwald has shown that he is very much willing to ask.
“He does seem to be the type of guy who holds a grudge and is probably going to be a touch vindictive in this situation,” Lee says. “He seems to be very angry and has the wherewithal and money to go after this.”