Early April saw the arrest of a 14-year-old girl who sent a threatening tweet aimed at American Airlines. Tweeting under her own account, this girl, identified only as Sarah, posted “hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye.” American Airlines was quick to reply, tweeting back “Sarah, we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.” This prompted a hurried retraction by the panicking girl in what turned out to be more of a social media meltdown.
Upon receiving a threatening post on social media, what options does a company or individual have? In the United States, 18 U.S.C. § 875 may be available to federal law enforcement. As against those who threaten bodily harm, § 875(c) says “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” For threats against property or reputation with an extortion component, § 875(d) may apply.
18 U.S.C. § 875(c) came under scrutiny most recently in 2012 in United States v. Jeffries. 692 F.3d 473, 477 (6th Cir. 2012). Franklin Delano Jeffries was convicted under § 875(c) for posting on YouTube a song threatening to kill a local judge presiding over a family law case if he didn’t “do the right thing” for Mr. Jeffries and his daughter. Id. at 475. In relying on precedent to uphold the conviction, however, the 6th Circuit agreed that subjective intent is not required under § 875. Surprisingly, the 6th Circuit opinion’s author, Judge Sutton, issued a subsequent dubitante opinion calling into question the lack of subjective intent, especially in today’s social media environment where a seemingly innocent prank can go viral.
On the civil side, most threatening posts violate a social media site’s terms of use. The target of the threat could report the threat and violation of the terms of use to the social media site, and request removal of the post or termination of the posting account altogether. A claim against the social media site itself, however, would likely run into difficulties—at least initially–due to the Communications Decency Act § 230 Safe Harbor.
Seth Jaffe (seth.jaffe@nortonrosefulbright.com / +1 713 651 5370) is an associate in Norton Rose Fulbright’s Intellectual Property Practice Group.
