Man Actually Arrested For Assault With A Deadly Tweet
from the trolling-with-a-deadly-gif dept
Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he'd had a seizure on the spot. As we noted at the time, we're no fans of Eichenwald. In our opinion, he's an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he's no fan of us either.
Still, the lawsuit was interesting. At a first pass, the very idea that a "tweet" could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It's not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle "@jew_goldstein"). But, then again, perhaps we didn't expect that the troll would do this:
That, is an image of John Rivello holding up his own driver's license. And it's attached to the very iCloud account that was attached the iPhone that he used, via an "untraceable" Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It's quite fascinating.
The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter -- which also turned up a bunch of direct messages that are kinda useful to prosecutors:
If you can't see those, it's a series of Direct Messages from the "@jew_goldstein" account, saying things like that Eichenwald "deserves to have his liver pecked out by a pack of emus." "I hope this sends him into a seizure." "Spammed this at [Eichenwald] let's see if he dies." "I know he has epilepsy."
Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law -- 18 USC 2261A that includes this:
Whoever--
(2) 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, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—
(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A)
That whole "intent to kill, injure, harass, intimidate" part is helped along with direct tweets saying something like "I hope this sends him into a seizure" and "let's see if he dies."
Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn't via a search warrant -- it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info... but also noted that it was using a specific model iPhone.
So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that's where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this:
If you can't see it, that's the flashing gif that @jew_goldstein sent Eichenwald and it says "You Deserve A Seizure For Your Posts." This was the same one that Eichenwald's wife found on Kurt's computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello's iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he'd died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll.
So that's a lot of pretty damning evidence. As lawyer Keith Lee notes, it's something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn't take that many and didn't seem to realize how many other ways there were to track him down.
I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet -- but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here -- and it's a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm -- which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place.
Of course, I'll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee's post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn't surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn't just annoying someone with a meme -- it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don't do that.
Either way, we now have an actual indictment for a crime of assault with a deadly tweet.
If you can't see that, it's the grand jury referral, noting that the offense is "aggravated assault with a deadly weapon" and it notes that:
... said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.
We live in such strange times.
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Filed Under: assault, cyberstalking, doj, epilepsy, fbi, john rivello, kurt eichenwald, stalking, trolling
Companies: twitter
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They'd merely classify GIF editors as munitions and use ITAR rules to ban their export.
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A gif is multiple pictures combined together into a single animation. They say a picture is worth a thousand words and the bird is the word. And as we've seen from Alfred Hitchcock's 'The Birds', it's possible that a great many number of birds are quite deadly. So John Rivello assaulted Kurt Eichenwald with thousands of birds in a deadly force.
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This one was, but some are just single pictures. Animation support wasn't present in the original version of GIF.
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http://legal-dictionary.thefreedictionary.com/deadly+weapon
They will be hard pressed to find a gif that's actually killed someone.
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Inducing a seizure is exposing the victim to a risk of serious injury, or even death.
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They'd be hard-pressed to find a moon rock that's actually killed someone too, but if somebody were to beat Eichenwald over the head with a moon rock after stating that he intended to kill him, I don't think the "nobody's ever been killed with a moon rock" defense would hold up.
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He sent the message along with his insane rants but I don't believe he ever thought for a second it would actually kill him. Just mindless rants from an idiot with mental issues.
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Oh, it's fine, officer, I didn't mean to kill anyone, I just dosed his drink with something that'd give him really nasty hives. He's fine, it's just a harmless prank.
A lack of intent to kill does not mean that physical harm was not intended, the novelty of the delivery vector is irrelevant.
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That's not actually what I said; I was merely criticizing your "nobody has ever been killed with X" reasoning.
He said "You deserve a seizure" and "Let's see if he dies" and edited Eichenwald's Wikipedia page to say he'd died. Precisely what threshold do you believe he needs to cross to establish that he intended to kill him?
What legal argument are you actually making here? You seem to be suggesting that he's not guilty by reason of insanity. If that's what you're saying, what are you basing it on? And if not, what are you saying?
Assuming that he is insane -- and I've seen no evidence of that besides the tautological reasoning that anyone who would rant about a reporter is insane -- that doesn't preclude intent to harm or understanding of the possibility of doing harm. He planned this -- no, not very well, but it was clearly planned. He got a burner card and tried to hide his identity. He searched for seizure-inducing images and sent one to an epileptic with a message saying "You deserve a seizure," and separately said "Let's see if he dies" and edited his Wikipedia entry to say he'd died. Exactly which of these facts indicates to you that he lacked understanding of what he was doing and intent to cause harm and possibly death?
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Yes, if the message has the capability of causing physical violence - which this did, and the sender knew it did. Both are attacks that cause physical harm, even if the message doesn't originate in a physical form.
"I don't believe he ever thought for a second it would actually kill him"
Why don't you believe that? He researched the subject well enough, why would he not believe that death was a possible outcome as that is one possible outcome of a seizure (be it directly from the seizure itself or the result of accidental injury caused after the victim has lost control of his body)?
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I'm not sure how that's relevant. Is the intention just to disclose that you've got a history with Eichenwald that readers should know about before they evaluate any statements you make about him? If so, then that's a good call, but it's not entirely clear that that's the purpose of bringing it up.
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Yes, perhaps I should have been more clear in why we brought that up. It's mainly because I've seen a variety of reactions online to the news of this arrest. Those who like Eichenwald seem thrilled, while those who hate him are going crazy about how this is a miscarriage of justice.
So I wanted to point out that we're not generally in agreement with Eichenwald before pointing out that we think there's a more reasonable case here, lest people claim we only support him because we support his views. We don't support his views but this case appears to have at least some legs.
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Fair enough.
I'm not a fan of Eichenwald either, but I don't generally bring that up in the context of this case precisely because my opinion of him is irrelevant to the facts or ethics of this specific case.
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Sure, but just thinking something is relevant doesn't make it so.
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As Techdirt is generally a critic of proprietorial overreach, this post noting the legitimacy of charging someone with assault (under specific circumstances) for a tweeted image demonstrates that Techdirt's stance is an informed one and principled one rather than a reflexive one.
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And the company that will bring it to you: AT&T
Strange; I don't remember attempted murder in AT&T's "You Will" commercials.
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My only issue is that instead of seeing this, these awful laws will be praised as the ones that solved the whole thing. And down we go in the slippery slope.
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While there have certainly been some ill-conceived, overbroad laws intended to target cyberbullying, revenge porn, etc., I'm not sure what the problem is with the specific code cited here. Intentionally attempting "to kill, injure, harass, or intimidate" seems like something that should be illegal.
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But "Harass or intimidate"? What exactly is "harassment" or "intimidation" in a manner worthy of a criminal charge?
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http://legal-dictionary.thefreedictionary.com/harassment
http://legal-dictionary.thefreedictionary.c om/intimidation
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You have to imagine that laws were narrowly written when the telephone became common. The law does have to run sometimes to catch up to technology.
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How 'bout killing autoplay?
It's a shame Twitter itself wasn't a party to this lawsuit, since it insists on playing animations without permission.
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Re: How 'bout killing autoplay?
This isn't a lawsuit. It's criminal charges. I think charging Twitter with a crime here would have been overreach.
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Re: Re: How 'bout killing autoplay?
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Re: How 'bout killing autoplay?
"Autoplay" isn't something that can be disabled on its own to stop animations. You'll need to disable Javascript, and install "animation: none !important" as a CSS override (i.e. userContent in Mozilla), at least. Even then you can still get (accidental?) CSS animations, like when moving your cursor over something causes the style to change and now it's no longer under your mouse (and then it flips between these two states).
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hey, arlo. love your work, man. you are a nasty . . . err, i mean . . . national treasure.
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Word Placement
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Two birds, one Tweet?
I mean really, who uses a burner phone for signing up for Twitter, talks about and plans a death by seizure, and then takes photos of themselves with their drivers license as well as all sorts of other items to link the account to the crime?
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Re: Two birds, one Tweet?
I mean really, who uses a burner phone for signing up for Twitter, talks about and plans a death by seizure, and then takes photos of themselves with their drivers license as well as all sorts of other items to link the account to the crime?
An idiot, of which there will always be plenty(even if most of them don't quite make it to Darwin Award levels of idiocy).
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Re: Two birds, one Tweet?
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Deadly weapon?
To most people an animated gif, like the peanut dust, are totally harmless, but are deadly to a small proportion of the population.
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Re: Deadly weapon?
In your case, the difference would be between accidentally eating peanuts as you packed a letter to someone who's allergic vs. googling "can peanut allergies be triggered by peanut dust on this letter I am currently packing" and then doing so, then texting your buddy that you're such a madlad for actually going through with it.
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Re: Deadly weapon?
I think the fundamental difference is a person who gets seizures can (and arguably should) protect themselves from trolling like this by disabling animated GIFs in their browser (and Flash, etc).
Does that excuse the intent? No. But, it does make it a fundamentally different thing than mailing someone something they have to expose themselves to (peanut dust, poison, etc). With a computer, you can mitigate the attack with software, colored filters over the screen, etc.
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Re: Re: Deadly weapon?
As I've said before, there's a fine line between advising that people protect themselves and blaming a victim. It's not Eichenwald's fault someone intentionally sent him an image with the intention of causing him a seizure, and it's likely that he didn't even realize that there was a way to shut off animations (he's not exactly known for his thorough understanding of computers).
That said, if this story raises awareness of the risk of seizures online, and encourages other epileptics to exercise precautions like blocking animations, then something good will have come of it.
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I'm...guessing you're not reading in threaded view?
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Re: Re: Deadly weapon?
There is a big difference between taking reasonable precautions to minimize risk (not watching anime with flashing sequences for example) and expecting someone to structure their entire life around avoiding the possibility that an asshole who wants to hurt them (Eichenwald didn't wear sunglasses outside to prevent buddy from walking up to him with a strobe light either - he must have been asking for it).
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Re: Deadly weapon?
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It's like a modern Greek tragedy.
Keith Lee: He fell down in the den, and foamed at mouth, and was speechless.
Doctor: 'Tis very like. He hath seen a GIF.
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wow a warrant process was followed.
A real intent to hurt someone was discovered. Cops used warrants to get information. AT&T showed yet again they don't care about customer's rights. And following actual evidence cops nabbed a guy.
Except for AT&T this was how it should be done. Cops just need to follow the publicly approved method to investigate crime.
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If exposure to X can hurt you, you do something.
Notice the image of the gif, see that play icon in the middle?
If you have epilepsy and piss people off, you really have to be stupid to think no one will ever expose you to a flashing gif. There is plenty of history of this being done... and protecting yourself is a switch in twitter to not autoplay or an addon for browsers that stops gifs from running automatically.
IANAD (I am not a Doctor) but there has been talk that he might not suffer from the type of epilepsy that is triggered by flashing gifs.
Because we've NEVER seen someone double down on pissing in someones cheerios, and then run for cover when it gets real.
Assault with a deadly graphic.
ARE YOU FSCKING KIDDING ME.
System seems bent on showing they are tough on the cyber, one can only hope that their high profile case collapses as the truth comes out.
Such high profile drama... what some people won't do to keep their name in the media.
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In the former case, we are discussing speech intended to cause a person to make a choice. Specifically, to end their life. Words hurt, to be sure, but it is an emotional hurt, which is qualitatively different from physical hurt.
In the latter, we are discussing exposing someone to an external stimulus intended to provoke a physiological response that would cause real and tangible harm to their body. That, according to the victim, did precisely that.
The fact that the offending image included the phrase "You Deserve A Seizure For Your Posts" doesn't make it a free speech question. There is no equivalency between the two examples. A more apt comparison would be that of a Neo Nazi stabbing someone advocating for racial equality with a knife that had "Meine Ehre heißt Treue" inscribed on the blade.
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You can imagine it that way, sure. Emphasis on imagine.
The Supreme Court has roundly and repeatedly rejected balancing tests as a measure of whether or not speech is covered by the First Amendment (see https://www.popehat.com/2010/04/20/cute-widdle-kitties-cute-but-not-cuter-than-first-amendment/ ).
It's not about weighing benefit against harm. It's not about a content-based restriction on seizure-inducing GIFs, either; if somebody had posted the same GIF somewhere else without knowing or expecting that an epileptic might see it and have a seizure, then there would be no crime. It's about the specific context of this specific instance. Man sends GIF, states his intention to cause harm and his understanding that it may even cause death. In that context, and not necessarily in any other context, sending that GIF is unprotected speech.
Allegedly. There still has to be a trial, of course.
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You may dislike Eichenwald(I don't really have an opinion about him, because I really don't give a shit), but you are making classic "blame the victim" arguments. You are doing exactly what cops do when they shoot unarmed people who didn't comply with their orders quite fast enough; making up reasons it was the victims fault, not the perps. Don't do that.
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As I said up above, there's a fine line between recommending reasonable precautions and victim-blaming.
You've crossed it.
"There has been talk" by whom? If you have a source, cite it. If you don't have a source, admit it.
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Sure, Twitter is a vehicle for speech. And the image was transmitted to the target via Twitter. That doesn't mean that all aspects of the image count as speech. A car is also a vehicle for food delivery. That doesn't mean that everything transported in a car is a pizza.
Also, you're wrong. Free speech doesn't HAVE important benefits; free speech IS the benefit. The ability to exchange ideas, even repugnant ones, without fear of government restraint is essential to a free society. Period dot.
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First off, while some may be harmed by an individual's speech, free speech is, itself, a benefit to them, as it means that they may express their views just as openly and without fear of restraint. And I use "harm" in the loosest of senses, as protecting people from emotional distress is not the kind of pressing national interest that a society that considers freedom important should be concerning itself with.
Second, as I pointed out, the issue was not the message sent by the tweet. The issue was the flashing lights, which were not any form of speech, as they conveyed no message or information at all. At best, they conveyed the message "I wish you harm" in the same manner that a gunshot would have.
Saying "You Deserve A Seizure For Your Posts" is speech, and I will vehemently defend a person's right to do so. Attempting to cause a seizure, even over the internet, is assault, and thus a crime. And, as the article shows, already recognized as such, thus no free speech questions are raised by this case.
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Intent matters.
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Some states disagree
https://en.wikipedia.org/wiki/Headlight_flashing
"A car is also a vehicle for food delivery"
...and speech, apparently.
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The clear, stated intent of the message was "I hope this injures you, perhaps kills you".
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Which is generally not a message one directs at those one holds in particularly high esteem, so I feel confident enough to stand by my statement.
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Yeah, I have no problem with this specific case. Just words or an offensive picture? This would be ridiculous. But, here we have a known ability to cause physical harm and the stated intent to do so. He deserves whatever he's getting.
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I hope he ends up in jail
This wasn't a spur of the moment tweet; he took the time to research and find specific pictures that would cause epileptic seizures, attached it to the tweet, and added text that indicated he was intending to injure or kill.
This is =NO= different than if someone researched how to cut a break line, cut the line, and then left a note under the car saying that he hoped the victim would die.
I would also argue this is not much different than releasing embarrassing nude photos of an ex and then telling them to kill themselves.
Just because it is digital doesn't mean it isn't a crime.
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Intent
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Re: Intent
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Re: Re: Intent
It is arguable that someone couls claim free speech if the act of yelling Fire! in a crowded theatre was done with a reasonable (and preferably evident) political or social message as intent. In this case, it is still likely that the person involved is aware of the associated mischief and still intends to cause it, therefore there is still intent towards mischief.
Instead, consider someone inflicted with Tourettes syndrome, shouting Fire! due to that. They did not intend mischief; indeed, they didn't even intend to shout! Would you still suggest that this hypothetical person should be tried for damahes caused?
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Re: Re: Re: Intent
I don't know about Techdirt's, but here's Ken White's:
https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship -are-enough/
This bit summarizes the argument pretty well:
(And back to quoting William Braunfeld's post, not Popehat:)
Good point. Shouting "Fire" in a crowded theater is legal if there's actually a fire; ergo, it's not the speech that's illegal, it's the intent.
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Well sure, you can definitely cause harm through negligence, and there are laws against that too. It's the difference between murder and manslaughter.
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Insert Trump joke here?
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If the kamra bomb actually existed...
Oh wait..
Karma. It's super effective, so long as it's not focused on you.
Carry on.
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And so.. the utility of browser add-ons has become clear
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Re: And so.. the utility of browser add-ons has become clear
On top of that run noscript, adblock, HTTPS everywhere, cookie safe, and maybe even an anonymizer just to be safe.
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Quit arguing over details
If this idiot sent the .gif knowing (OR EVEN JUST BELIEVING) that the receiver is prone to bad effects of strobing lights then charges may be considered just the same as the peanut-oil letter.
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Re: Quit arguing over details
Arguing over details is exactly what a trial is.
That said, I agree with you: the intent to harm and possibly kill is pretty unambiguous, and I don't see why his choice of weapon would mitigate that.
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