This is Part V of the ongoing coverage of Assault With A Deadly Twitter. Previous entries:
- Can You Sue Someone For A Tweet That Induces Epilepsy? (Part I)
- Can Kurt Eichenwald Get Pre-suit Discovery From Twitter? (Part II)
- Can You Assault With A Tweet? (Part III)
- Motion To Quash Assault By Long-Distance Tweet (Part IV)
Also see conversations I’ve had with Vocativ & the BBC.
You thought it was over! What could Eichenwald possibly do?! This was all too far fetched! Too impossible! Eichenwald would need a miracle for this case to actually be prosecuted!
Maryland Man Arrested for Cyberstalking
From the Justice Department’s press release:
A Maryland man was arrested today on a federal criminal complaint charging him with cyberstalking a Dallas, Texas resident, announced Acting Assistant Attorney General Kenneth A. Blanco of the Justice Department’s Criminal Division and U.S. Attorney John Parker of the Northern District of Texas.
John Rayne Rivello, 29, of Salisbury, Maryland, was arrested in Maryland today on a criminal complaint filed in the Northern District of Texas. The complaint was unsealed today following his initial appearance in the District of Maryland.
…evidence received pursuant to a search warrant showed Rivello’s Twitter account contained direct messages from Rivello’s account to other Twitter users concerning the victim. Among those direct messages included statements by Rivello, including “I hope this sends him into a seizure,” “Spammed this at [victim] let’s see if he dies,” and “I know he has epilepsy.” Additional evidence received pursuant to a search warrant showed Rivello’s iCloud account contained a screenshot of a Wikipedia page for the victim, which had been altered to show a fake obituary with the date of death listed as Dec. 16, 2016. Rivello’s iCloud account also contained screen shots from epilepsy.com with a list of commonly reported epilepsy seizure triggers and from dallasobserver.com discussing the victim’s report to the Dallas Police Department and his attempt to identify the Twitter user.
At Newsweek, Eichenwald’s lawyer, Steven Lieberman, said:
“What Mr. Rivello did with his Twitter message was no different from someone sending a bomb in the mail or sending an envelope filled with anthrax spores,” Lieberman says. “It wasn’t the content of the communication that was intended to persuade somebody or make them feel badly about themselves; this was an electronic communication that was designed to have a physical effect.”
“We’re very gratified that the government has worked hard and promptly to make sure that the person who was responsible for this attack is held to account,” Lieberman says. “It sends an important message that there is no free shot against journalists in the country.”
Other than that, not much is actually known yet. No one has managed to get a copy of the complaint yet. So no one knows how the FBI found Rivello, nor what they’re charging him with.
But given the information, we can make some informed speculation as to both.
Always Talk To A Lawyer First
There is no way to confirm if what this page says is true, but shortly after the arrest announcement was made, a WeSearcher (think right-leaning Kickstarter) page was setup for “Jew Goldstein Legal Defense Fund.” In the About section of the page:
Eichenwald obtained John’s real name through a charity he had donated to in his name.
John had donated to an epilepsy charity as a gesture of goodwill and as an apology to Kurt. He also wrote Kurt an email, apologizing and told him that he was donating to the charity in his name.
For months now, John Rivello has been swamped with legal fees so his friends are starting this bounty in the hopes to ease the financial burden.
If the above is true, then it means that Rivello outed himself to Eichenwald. Whoops.
Let’s Talk CyberStalking
The Justice Department’s press release states that Rivello was arrested for cyberstalking. Let’s look at that.
“Cyberstalking” is one of those things that sounds extra nefarious because the word “cyber” is at the beginning of it. But that’s because no one really knows what “cyber” means. It’s just a word people append to other words to make it sound extra future computer-y. I blame William Gibson.
There is no explicit “cyberstalking” statute in the Federal Code, but it is addressed in various statutes.
18 U.S. Code § 2261A – Stalking
2261A is the general stalking statute in the federal code. And it includes language relating to computer use.
[whoever] 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, [highlight]any interactive computer service or electronic communication service or electronic communication system[/highlight] of interstate commerce…
But the statute requires that the defendant physically travel across state lines, making it inapplicable to many cyberstalking cases.
18 U.S. Code § 875 – Interstate communications
875 deals with using interstate communications to convey threats.
(c) Whoever transmits in interstate or foreign commerce [highlight]any communication containing any threat to kidnap any person or any threat to injure the person of another[/highlight], shall be fined under this title or imprisoned not more than five years, or both
This seems to fit the circumstances much better. That being said, cyberstalking is usually characterized as a pattern of conduct. I’m not sure if Rivello’s conduct constitutes a pattern, but given the evidence thus far, Rivello intended to injure or threaten to injure Eichenwald.
This is probably where things are going. We’re going to get back to what constitutes a “true threat,” is this context. It’s too much to get into at the moment, but I suggest you familiarize yourself with US v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995).
Volenti non fit injuria
“to a willing person, injury is not done”
Of the many people who seem to detest Eichenwald and support Rivello, this seems to be their common refrain. Usually some derivation of: Eichenwald should have known better! He’s an epileptic! You can turn flashing images off! He was asking for it!
And when a girl is wearing a short dress in a sketchy neighborhood, she asking to get raped right? Not that I should have to answer this but: of course not, wrong! No one assumes the risk of being assaulted. Not a girl wearing a short skirt nor an epileptic using Twitter.
Regardless, we’re also going back to the threshold question presented in Part I of Assault With A Deadly Twitter, Can the mechanics of an internet medium serve as means of committing assault?
Part III of Assault With A Deadly Twitter is devoted to answering that question, I suggest you go back and read it (spoilers: probably). More to come once the complaint comes out, stay tuned.