Seizure-in­duc­ing tweet leads to a new kind of pros­e­cu­tion for a new era

The Washington Post Sunday - - NEWS - BY MAX EHRENFREUND AND AN­TO­NIO OLIVO max.ehrenfreund@wash­ an­to­nio.olivo@wash­ Jen­nifer Jenk­ins con­trib­uted to this re­port.

The ar­rest of a Sal­is­bury, Md., man ac­cused of giv­ing a well­known jour­nal­ist a seizure by send­ing him a flash­ing im­age on­line rep­re­sents a new kind of pros­e­cu­tion for a new kind of crime.

The jour­nal­ist, Newsweek’s Kurt Eichen­wald, suf­fered a seizure in Dallas af­ter view­ing the flash­ing an­i­ma­tion when he re­ceived it via Twit­ter late last year, ac­cord­ing to a state­ment from the Jus­tice Depart­ment. Eichen­wald had writ­ten about his epilepsy and pub­licly de­scribed a sim­i­lar at­tack sev­eral weeks be­fore the Dec. 15 in­ci­dent, and author­i­ties said the al­leged at­tacker sent Eichen­wald the im­age in an at­tempt to hurt him as re­venge for what he saw as the re­porter’s crit­i­cal cov­er­age of Pres­i­dent Trump.

Ex­perts on cy­ber­se­cu­rity said the in­ci­dent was not the first in which tech­nol­ogy was used to ex­pose med­i­cally vul­ner­a­ble peo­ple to in­jury, but some said it was the first time they’ve heard of prose­cu­tors bring­ing crim­i­nal charges in such a case.

“This is a new era,” said Kevin Fu, a com­puter sci­en­tist at the Univer­sity of Michi­gan.

Author­i­ties took John Rayne Riv­ello into cus­tody Fri­day on sus­pi­cion of send­ing Eichen­wald the im­age along with the mes­sage: “You de­serve a seizure for your post.” Riv­ello has no pre­vi­ous crim­i­nal his­tory, ac­cord­ing to pub­lic records.

Le­gal ex­perts com­pared the al­leged crime to send­ing a let­ter bomb in the mail, or to pur­posely giv­ing a per­son a dan­ger­ous al­ler­gic re­ac­tion.

“What is new, be­cause of the tech­nol­ogy, is the ease with which cer­tain in­di­vid­u­als can be tar­geted across state lines by re­motely dis­tant per­pe­tra­tors,” said An­drea Matwyshyn, a law pro­fes­sor at North­east­ern Univer­sity.

In 2008, hack­ers in­tro­duced seizure-in­duc­ing im­ages onto the web­site of the Epilepsy Foun­da­tion, an or­ga­ni­za­tion that pro­vides re­sources for peo­ple with the con­di­tion. The group quickly moved to ad­dress the vul­ner­a­bil­ity, and al­though sev­eral users re­ported headaches and con­di­tions that can be pre­cur­sors to seizures, none were re­ported.

Al­though epilepsy is rel­a­tively com­mon — about 4 per­cent of Amer­i­cans have some form of the con­di­tion — very few have seizures trig­gered by flash­ing lights.

“If you were go­ing to tar­get a par­tic­u­lar per­son with epilepsy, you would have to know that this par­tic­u­lar per­son was light sen­si­tive, and that would be very rare,” said Jac­que­line French, the Epilepsy Foun­da­tion’s chief sci­en­tific of­fi­cer and a pro­fes­sor at New York Univer­sity.

Eichen­wald de­clined to com­ment Satur­day and re­ferred ques­tions to his lawyer, who did not re­spond to a re­quest for com­ment. In his es­say de­scrib­ing the first in­ci­dent last fall, he said he re­ceived a video that con­tained a strobe light, with flash­ing cir­cles and im­ages of Pepe the Frog — often used as an alt-right meme on­line — fly­ing to­ward the screen. In that case, he avoided a seizure by drop­ping his iPad. The sim­i­lar mes­sage on Dec. 15 trig­gered con­vul­sions.

Riv­ello, 29, ap­par­ently knew that Eichen­wald would be sen­si­tive to the im­ages, author­i­ties said. His father, David Riv­ello, de­clined to com­ment Satur­day about his son’s ar­rest when reached by tele­phone. Sev­eral other rel­a­tives did not re­spond to re­quests for com­ment.

Neigh­bors in Sal­is­bury, on Mary­land’s Eastern Shore, said Riv­ello lives alone in the house that he grew up in, usu­ally seen only when he was out mow­ing the lawn or ar­riv­ing home in a pickup truck that ap­peared to have a bad muf­fler.

Riv­ello told one of his neigh­bors that he worked as a fi­nan­cial mar­kets day trader. He ap­peared to live mod­estly.

“I’ve only talked to him a cou­ple of times,” said Phillip Kem­mer­lin, who lives next door. “I’ve never re­ally seen him walk­ing in or out with any­body. I didn’t know he was a po­lit­i­cal type of guy.”

On­line, Riv­ello has been ex­u­ber­ant about his hard-right pol­i­tics, often tweet­ing dozens of times per day about his sup­port for Trump and his frus­tra­tion with any­one out of step with the White House agenda.

His lat­est Twit­ter han­dle — “Meme Magic Mike” — fea­tures pho­tos of a scowl­ing Trump in sun­glasses and a leather biker’s jacket and de­scribes Riv­ello as a “drinker of left­ist tears. Snowflake melter.”

Be­tween sneer­ing jabs at cable tele­vi­sion host Rachel Mad­dow or U.S. Sen. Charles E. Schumer (D-N.Y.), Riv­ello re­peat­edly high­lights what he char­ac­ter­izes as a feud with Eichen­wald and dis­misses any pain the Newsweek re­porter has ex­pe­ri­enced.

“This re­minds me of a boy who cried wolf over a Pepe car­toon,” he wrote on March 10 in re­sponse to a tweet by Eichen­wald about a white woman at an air­port com­plain­ing about be­ing racially pro­filed at the se­cu­rity check­point.

“He ac­cused me of ‘at­tempted mur­der’ by deadly Pepe meme back in Oc­to­ber,” he wrote about Eichen­wald.

Al­though the Con­sti­tu­tion of­fers broad pro­tec­tions to crit­i­cal speech in pub­lic fo­rums, ex­perts said it is un­likely Riv­ello could suc­cess­fully de­fend his ac­tions as pro­tected ex­pres­sion.

“This doesn’t even get in the door of the First Amend­ment,” said Danielle Citron, a le­gal scholar at the Univer­sity of Mary­land. “It doesn’t have ex­pres­sive value. . . . It doesn’t ex­press some­one’s au­ton­omy of views and opin­ions. It’s not con­tribut­ing to the mar­ket­place of ideas.”

Citron said there are other types of med­i­cal cy­ber­at­tacks that could prove harm­ful to oth­ers and be con­sid­ered crimes, such as the pos­si­bil­ity that some­one could hack into and take over a pace­maker or an in­sulin pump and kill a pa­tient. Johnson & Johnson warned pa­tients last year that the com­pany had iden­ti­fied a vul­ner­a­bil­ity in one of its in­sulin pumps, a de­vice used by about 114,000 pa­tients, Reuters re­ported.

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