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Secondly, Mr. Rivello knew Mr. Eichenwald was epileptic based off Mr. Eichenwald’s prior
announcement in a Newsweek article indicating he had epilepsy. Indeed, the information Twitter
provided to law enforcement in response to the search warrant, revealed several of Mr. Rivello’s
tweets indicating he knew Mr. Eichenwald was epileptic. The results further revealed that Mr.
Rivello’s search history contained extensive research and visits to informational sites such as
www.epilepsy.com explaining different triggers for seizures.

Lastly, Twitter’s default settings of video playback as it pertains to GIFS, automatically load and
play the GIF without having the user click on it to load or play it. Consequently, when Mr.
Eichenwald logged into his Twitter account, Mr. Rivello’s tweet, containing only the flashing GIF
was the first thing he saw, to which he immediately experienced a seizure for approximately
eight minutes.

In light of the foregoing, it appears that Mr. Rivello’s actions directed towards Mr. Eichenwald
are likely to constitute assault under the Restatement. However, this conclusion is based off a
very particular set of facts, such as this case. Not every tweet that verbally attacks another
individual can be considered assault.
2. Did Mr. Rivello Commit Felonious Assault Under Ohio Revised Code
§2903.11(A)?
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In Ohio, felonious assault is second-degree felony with a prison sentence anywhere from 2-8

years. The statute reads as follows:
(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another;

(2) Cause or attempt to cause physical harm to another…by means of a
37
deadly weapon or dangerous ordnance.

As discussed earlier in the article, Mr. Rivello knowingly caused serious physical harm to Mr.
Eichenwald by inducing approximately an eight-minute seizure when he used Twitter to
send a tweet containing a GIF of a flashing strobe message to an individual who he knew
was epileptic. Indeed, it is likely that Mr. Rivello could be charged with felonious assault
under Ohio’s Revised Code.

3. Did Mr. Rivello Commit Aggravated Assault Under Ohio Revised Code
§2903.12(A)?
In Ohio, aggravated assault, is a fourth-degree felony and has a potential prison sentence of 6-

38
12 months. The statute reads as follows:
(A) No person, while under the influence of sudden passion or in a sudden fit of rage,
either of which is brought on by serious provocation occasioned by the victim that is
reasonably sufficient to incite the person into using deadly force, shall knowingly:

(1) Cause serious physical harm to another…;

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37 Ohio Rev. Code §2903.11(A)(1)/(2)
38 Ohio Rev. Code §2903.12
103 Cyber Warnings E-Magazine – May 2017 Edition
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