Can a person be held criminally responsible for “Retweeting” another person’s content, or is such communication protected under The First Amendment’s “Free Speech” language? Communication in our electronic world is bending a number of legal concepts into strange new shapes.
Consider Safya Roe Yassin, a 39-year-old citizen that was recently arrested for conspiracy and transmitting threats over state lines. Her alleged crime? Retweeting twitter posts from a third party that contained the message “Wanted to Kill”. The posts included detailed personal information – including names, addresses, and phone numbers – of U.S. law enforcement employees and military members.
The First Amendment, of course, does not cover “true threats”, and so this raises the question of whether retweeting a “threat” posted by someone else constitutes a true threat. Yassin’s lawyer argues that this type of communication is an expression of free speech, and did not constitute a true threat, since the message was not originally authored by Ms. Yassin, did not contain a specific time or place for carrying out the threat, and that the phrase “Wanted to Kill”, “isn’t a true threat because it is not able to convey any coherent meaning.”
Prosecutors disagree. The government argues there is no legal argument that retweets should be held to a different standard than any other threat, and that the threats were posted on behalf of Islamic State and specifically targeted an audience of the group’s followers. Prosecutors also cited a chat between Ms. Yassin and another person on an encrypted messaging app in which she allegedly said her posts “are directed at men and jihad a lot.”
The takeaway? Lawyers and investigators must consider the value of Electronically Stored Information (ESI) that is created in the cloud. This ESI can be your best source of evidence.
Source: “Retweet Case Fuels Free Speech Concerns”, by Nicole Hong. The Wall Street Journal. Saturday/Sunday, August 13-14, 2016