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Summary:

A New York man who used Twitter to send fake news reports during Hurricane Sandy is one of the city’s biggest jerks. But should he also face criminal charges?

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When Hurricane Sandy battered their city on Monday night, New Yorkers looked after each with courage and generosity. Unfortunately, a few people behaved badly and one person was downright despicable.

That person was Shashank Tripathia, a hedge fund analyst, who began issuing false and alarming news reports on Twitter at the height of the storm. As hospitals lost power and a major power station exploded, Tripathia contributed to the chaos by falsely claiming that all of Manhattan had gone black and that:

The tweet — which said a pillar of the world economic infrastructure was in peril — was finally refuted by the stock exchange, but not before it had been repeated hundreds of times, including on CNN and the Weather Channel. In short, Tripathia used a media platform at the height of an emergency to promote panic and anxiety.

Everyone agrees that his behavior was reprehensible. But there is also the question of whether tweets like Tripathia’s are (or should be) illegal.

Keep in mind that Twitter is not just an online gab fest, it is also a newswire. During the hurricane, a phone-based Twitter feed was the last and best source of news for some of us who had lost access to TV and the internet. It was at this very time that Tripathia chose to make mischief with his fake news reports, knowing full well his lies would be picked up by other news sources. It’s as if the local TV channel began broadcasting fake hurricane news just for fun.


Criminal mischief or Free speech?

Should he be punished? As others have pointed out, the damage he caused is limited because Twitter operates much like a self-cleaning oven by disinfecting false news. And Tripathia himself is likely to face the wrath of angry New Yorkers and possibly lose his job, now that BuzzFeed exposed his identity.

This doesn’t mean, however, that the state or city shouldn’t consider criminal charges against Tripathia — or anyone else who uses a broadcast channel in an emergency to endanger or incite. But any government action would, of course, be subject to the law of free speech.

“Lies are constitutionally protected except in very rare exceptions. Someone recklessly tweeting is beyond the reach of the law except in rare exceptions,” said Ken Paulson, a lawyer and former USA Today editor at the First Amendment Center, in a phone interview.

Paulson added that Twitter is typically so much loose talk and that “anything you want to outlaw on Twitter, you’d have to outlaw in conversation.”

Paulson’s reasoning is appealing, especially to a journalist, but may be hard to square with situations in which a Twitter feed becomes a de facto emergency broadcast channel. After all, the government already regulates rumors related to the SEC and the stock market, and courts say they will draw a line at protecting speech that gives rise to “imminent lawless action.” Should there be limits on social network speech in emergencies too?

At GigaOM, we’re fond of highlighting Twitter’s role as a source of freedom and public media tool. For now, my instinct is to leave Twitter alone. But future emergencies may test that position.

Update: it looks like at least one city official in New York thinks Tripathia’s tweets amount to a criminal act:

Update 2: Tripathia has apologized for the tweets and resigned as campaign manager for a Republican candidate for Congress. Respected Reuters columnist Felix Salmon isn’t in a forgiving mood.

(Images by Benjamin Simeneta and Zacarias Pereira da Mata via Shutterstock)

  1. I wouldn’t support and don’t think there’s any way to police all rumors on Twitter, even the filing of malicious tweets. Not only is there the basic “free speech” issues, but there’s also the anonymity of Twitter and a real question of what’s malicious. and what’s just misinformed.

    While on the other hand, if we do learn that Tripathia traded a blip or hiccup on an overseas market produced by CNN’s repetition of his false NYSE tweet, there are probably some regulatory measures that could be taken concerning his exchange privileges.

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    1. Well stated, Magister. I don’t think there can or ever should be any sort of general-duty Twitter police but there are a few factors that make @comfortablysmug stand out: 1) he’s regularly retweeted by other media outlets (and knows this); 2) he knew exactly what he was doing; 3) it was a genuine emergency

      But, overall, I suspect that any laws to shut him up would be a case of cure being worse than the disease

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      1. Agreed!

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  2. twitter is by its very nature untrustworthy in that anyone can say anything and hide behind the free speech argument. Anyone who relies upon twitter as a news source does so at their own peril. I’d go so far as to say anyone who does so is an idiot and deserves whatever results they get for relying on what amounts to the rumor-mill.

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  3. Agree on freedom of speech but I do think there should be repurcussions for those that intentionally spread misinformation during times of natural disaster or emergency – this information could divert rescue resources that affect safety and people’s lives. I’m sure there are all sorts of challenges in putting parameters around this but at the least ‘outing’ this person’s identity through postings like this is a good start. Hopefully this affects his reputation which will have other impacts.

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  4. Same as shouting “FIRE!” in a crowded theater. Arrest him, charge him, and — if he’s not a citizen — deport him.

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    1. Yes – I had the very same thought – this does have the same kind of feeling as shouting “FIRE” – but if this is indeed the equivalent of shouting “Fire” in a crowded theater, then how do we still protect all the people’s free speech?

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      1. Broadcasting information you know to be false (and tweeting IS broadcasting, especially when you’re followed by news orgs) is already a crime if you’re involved in stock trading. This jerk is, and should be fined if not arrested by the SEC.

        Bwahaha. Sorry, everytime I think of the SEC actually enforcing the law it just cracks me up. But the 1st Amendment is not absolute, and a hedge fund trader tweeting false information about the trading floor could absolutely impact foreign markets. There should be charges and a trial.

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  5. Ironic that we can discuss the idea of punishing this person for posting fake tweets.. But we will sit by as nothing is done about the abuses on Wall Street. Yes this guy should be held accountable for posting false tweets.. But shame on CNN (and others) for running it without verifying the source or the story first.

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  6. Wow, I can’t believe so many people think he should be charged with a criminal act. Bad taste is not criminal. If it were, Twitter should be declared illegal. The fact news organizations reported on it is even worse, and, makes me sad a little bit. The state of emergency argument is weak too. Would that mean someone who tweets something they think is true, but is not, they should go up on charges as well? (For example, all of the retweets of this dolt’s original tweets — I mean, it’s perfectly alright to shout fire in a theater, when, in fact, you think there’s a fire.) We don’t, and shouldn’t have the ability to arrest and charge someone because WE were the fools to a sad prank, emergency or not. I may not care for his humor, but basic reporting would have confirmed the tweet was nothing more than a prank and it would be a nonstory. Or, we can over react and take him out back and shoot him.

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    1. I’m with you on the media being wrong for reporting without verifying, but intent does matter when assessing his actions. I don’t think he did anything illegal (save for the possible SEC violations), but if the DA gins up some charges, I can only imagine his guilt would turn heavily on whether he intended to mislead.

      If he were sued civilly, it might just matter that he tweeted and thought someone might pick it up as fact. Of course, that would also require some injury other than newscasters’ bruised egos.

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  7. The issue is whether he was trying to gain benefit from the Tweet. It would seem very likely that the news that the NYSE was out of action would have an affect on global markets so shorting a number of trades and benefiting from that would be criminal and should be punished just like any inside trader

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  8. This just highlights the downside of granting amateurs the credibility one affords professionals. It’s part of the “reality TV” effect. Caveat emptor.

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  9. Zork, The Rabid Dog Wednesday, October 31, 2012

    I don’t agree with Herman about the central issue of CS’s misbehavior being whether he benefited. CS is open to civil liability for libel because his remarks were made with reckless disregard for their truth (in fact, with knowledge of their falsity) and because he likely caused economic damage to both the stock exchange and Twitter. Either/both of them could bring civil suit against him and I think collect a judgment, if he has any assets worth the trouble. This is beyond free speech guarantees because of its malice – the electronic equivalent of shouting fire in the theater, as Mark said. I’m a free speech champion, but I hope action is forthcoming here.

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  10. Give him a shovel and community service in Queens.

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    1. or a straw, and place him in the deepest part of the Carey Tunnel…

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