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Users can also embed visual files, such as photographs or still images in their tweets. These
files can include animated or moving images known as GIFS. Unlike Facebook or Instagram
where you can click the GIF to play it, by default, Twitter will automatically play the GIF when
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the recipient hovers over it or simply views it on the page. Based off the site’s guidelines and
terms of service, it appears that Twitter would most likely fall under the statute’s definition of an
interactive computer service or electronic communication service.

3. Did Mr. Rivello Engage in a “Course of Conduct”, or Was this an Isolated Incident
pursuant to 18 U.S.C. §2261(A)(2)(A/B)?

The third element of the Statute requires an individual to have engaged in a “course of conduct”
while using a service such as Twitter. The Statute further defines course of conduct as a
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“pattern of conduct composed of two or more acts, evidencing a continuity of purpose.”
Looking at the results of the search warrant Twitter provided to law enforcement and the
Prosecution, Mr. Rivello contacted Mr. Eichenwald at a minimum of five times, with the same
tone and goals in mind. Mr. Rivello used Twitter, to create a fake account registered under the
Twitter handle @jew_goldstein.

Mr. Rivello then composed and sent messages that included both words and a GIF directly to
Mr. Eichenwald’s Twitter page. At the same time, Mr. Rivello had composed and sent messages
to other users informing them to “follow” the prior tweets he had sent. He then sent a tweet
informing all of his followers to check his Twitter feed, or history to see all the previous tweets
he had sent to Mr. Eichenwald’s page.
Next, Mr. Rivello took it a step further and visited the official epilepsy website at
www.epilepsy.com to find out statistics and triggers for seizures. It was this point that he had
created a fake Wikipedia page for Mr. Eichenwald, altering the obituary date of death to show
th
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December 16 , 2017, the day after the GIF was sent to Mr. Eichenwald.
After viewing some of Mr. Rivello’s actions and messages sent out on Twitter, it is likely that this
was not an isolated event, but many steps taken in hopes of inducing a seizure from Mr.
Eichenwald.

4. Did Mr. Rivello’s Conduct “Place Mr. Eichenwald in Reasonable Fear of Death or
Serious Bodily Injury Pursuant to 18 U.S.C. §2261(A)(2)(A/B)?”
The fourth element of the Statute looks at whether Mr. Rivello’s conduct “placed [Mr.
Eichenwald] in reasonable fear of death or serious bodily injury.” Due to Mr. Eichenwald’s
publicity and verified Twitter profile page, he receives thousands of tweets, comments, and
critiques on his page daily. While Mr. Rivello could argue that Mr. Eichenwald should have
known something like this was coming, due to the incoming flood of messages not just from
him, but from other users, it would seem unlikely that the GIF placed Mr. Eichenwald in
reasonable fear of death or serious bodily injury, simply because he could argue he had no idea
this particular threat was coming.

However, as this relates to Mr. Eichenwald’s wife, the analysis could change. Applying this
same element when either his wife witnessed her husband experiencing a seizure, or after Mr.

24 Id.
25 Id.; see also www.twitter.com
26 Hoff Aff. ¶ 5.
27 Hoff Aff. ¶¶ 18, 28.
101 Cyber Warnings E-Magazine – May 2017 Edition
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