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Jury Says a GIF Is a ‘Deadly Weapon’ in Twitter Epilepsy Case

Kurt Eichenwald, an investigative journalist and prominent online critic of Donald Trump, at home in Dallas.Kurt Eichenwald, an investigative journalist and prominent online critic of Donald Trump, at home in Dallas.
Kurt Eichenwald, an investigative journalist and prominent online critic of Donald Trump, at home in Dallas, March 17, 2017. Brandon Thibowdeaux—The New York Times/Redux

A Texas grand jury has spoken in an unusual assault case, and its words read like a science-fiction novel.

After hearing evidence that John Rayne Rivello sent a strobing Twitter message to a journalist, the jury concluded:

[The] defendant did use and exhibit a deadly weapon, to-wit: a Tweet and a Graphic Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault,” according to a Texas court indictment.

The assault occurred on December 11 when Rivello, using the Twitter handle @jew_goldstein, allegedly sought to trigger a seizure in the journalist, Kurt Eichenwald, by sending a tweet that contained an epilepsy-inducing GIF. (GIFs are short animated images—often of cartoons or celebrities—seen all over the Internet these days).

Rivello’s alleged assault worked as intended. When Eichenwald saw the tweet, he claims to have suffered a seizure that lasted eight minutes during which he lost control of his body and mental functions.

According to the Department of Justice, Rivello sent text messages to friends that said “I hope this sends him into a seizure” and “Spammed this at [Eichenwald] let’s see if he dies.”

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The use of media to attack epilepsy sufferers is not new. In 2008, a Wired story described trolls dropping flashing animations onto the website of an epilepsy support group, and triggering seizures among its members. But the use of Twitter (TWTR) to do this is more novel, raising the legal question of when a media message amounts to assault.

“I’m unaware of anybody being criminally prosecuted for this… How do you know a photo can or can’t set off a medical condition? You can see the slippery slope here,” defense lawyer Tor Ekeland told NBC News, adding Rivello may try to invoke a First Amendment defense.

Meanwhile, the story of how the authorities caught Rivello is equally intriguing.

According to an FBI complaint, the 29-year-old former marine used a so-called “burner” SIM card with pre-paid minutes, meaning the phone company (in this case, AT&T) had no subscriber information about Rivello.

Rivello made a crucial mistake, however, by using the SIM card in his Apple iPhone 6 (AAPL). Even though AT&T (T) had no subscriber record, the company was able to identify the Twitter activity came from an iPhone, which was tied to a certain phone number.

The FBI then served a warrant on Apple, which reported an iCloud account with the same number—one tied to Rivello. A search of the iCloud account revealed damning text messages, including those above, and other evidence suggesting he sent the tweet.

Lawyers for Rivello, who is also facing hate crime penalties for the anti-Semitic nature of his alleged assault, told the Dallas Morning News their client had immediately apologized for his actions, and is seeking help from the U.S. Department of Veterans Affairs.