By Toban Platt

A gun, a knife, and a GIF image – which one seems out of place? According to a recent decision by a Texas grand jury – none of them. All three are now considered dangerous weapons.

John Rivello was arrested on March 17^th of this year and charged with cyberstalking a Dallas, Texas resident. On December 15, 2016, Mr. Rivello sent a Twitter message which contained an animated strobe Graphics Interchange Format, or GIF image, to the victim. Mr. Rivello had previously researched the victim, knew he suffered from epilepsy and sent the GIF in order to cause an epileptic seizure. The GIF also contained text stating “you deserve a seizure for your post.” Upon opening the message, the victim suffered a seizure almost immediately.

This isn’t the first time that a GIF has been used in an attempt to cause seizures in epileptic individuals. In 2008, hackers exploited a vulnerability in the Epilepsy Foundation’s website to post hundreds of flashing pictures as well as links to other webpages with rapidly flashing images. In that instance no users experienced seizures, but many reported suffering severe migraines and near-seizure reactions. Experts in cybersecurity believe that Mr. Rivello’s case is the first in which a GIF image is being considered a deadly weapon in the eyes of a court.

Mr. Rivello is being charged with the federal crime of Cyber Stalking in violation 18 U.S.C. § 2261A(2)(A) and (B). Section 2261A(2) criminalizes the use of any interactive computer service with an intent to kill, injure, harass, or intimidate another person in order to place “that person in reasonable fear of death or serious bodily injury” or in a way that “causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress.” Violations of these laws are punishable by up to 10 years of imprisonment “if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense.” As a result, a finding that the GIF that Mr. Rivello sent was a “dangerous weapon” would allow the prosecution to seek double the amount of jail time, from a maximum of 5 years up to a maximum of 10 years.

In Mr. Rivello’s case, the grand jury believed that there was enough evidence to find that the GIF that was sent was a “dangerous weapon.” A “dangerous weapon” is described as “any object capable of inflicting death or serious bodily injury.” However, this doesn’t mean that sending your friend the latest cat GIF is going to land you in a courtroom. A search warrant revealed that Mr. Rivello not only knew the victim had epilepsy, but had also done research to determine how to cause a seizure in someone who suffers from epilepsy. This evidence went towards showing that Mr. Rivello created the GIF with the specific purpose of causing the victim to have a seizure.

This case might mark the beginning of a new classification of the term “dangerous weapon” in the age of the internet. Instead of resorting exclusively to cyber stalking statutes or similar cybercrime statutes, prosecutors could theoretically start charging cyber criminals under traditional criminal laws. For example, Johnson & Johnson found a vulnerability in one of its insulin pumps that could be exploited by hackers. Additionally, Hospira found that a drug pump it manufactured could potentially be hacked as well. If hackers were to gain access to these types of devices, the consequences could be deadly. These devices could be programmed to give patients drug overdoses or to withhold necessary medication. In those instances, it seems plausible that the prosecutor would argue that the code deployed by the hackers was a “dangerous weapon,” because it was used to inflict serious bodily harm or death. This would then allow the prosecutor to charge the hackers with the traditional crimes of assault with a deadly weapon or attempted murder.

As the Rivello case progresses to trial, it will be important to monitor how the court wrestles with these complex new issues. Will the court allow Mr. Rivello to use a free speech defense to defend his use of the GIF? Or will the court limit his defenses to only those available in traditional weapons charges? The answers to these questions will start shaping how similar cases are treated in the future as well as whether we will begin to see code and computer software as weapons rather than mere ones and zeros.

Disclaimer: Mr. Rivello is innocent until proven guilty by a court of law.

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