The smiley face, heart, praying hands and other “emoji” have become the way millions of Internet users playfully punctuate their texts, posts and messages, but for one middle schooler the icons brought the police to her door.
Killing 🔫
“meet me in the library Tuesday”
🔫 🔪 💣
As emoji and their relative the emoticon have rocketed from web slang to the unofficial language of the Internet age, the case is one of a growing number where authorities contend the cartoonish symbols have been used to stalk, harass, threaten or defame people. And that has left the police and courts wrestling with how to treat a newly popular idiom many still dimly grasp.
A grand jury in New York City recently had to decide whether 👮 🔫 represented a true threat to police officers. A Michigan judge was asked to interpret the meaning of a face with a tongue sticking out: :P. Emoji even took a turn in the Supreme Court last year in a high-profile case over what constitutes a threat.
Such thorny questions are likely to only increase with the recent announcement that Facebook was rolling out a series of five face emoji users can select to react to posts in lieu of its ubiquitous “like” button.
“Emoji are new enough that people are finding their footing,” said Tyler Schnoebelen, a linguist and founder of a company called Idibon. “Almost all of these cases have emerged in the past couple years. They are all going into fresh legal territory.”
Emoji are icons of faces, hand gestures, fruits, animals and other items that can be embedded in text. They are often used to indicate the tone of a message, add emphasis or are shorthand for things or ideas.
Emoji shot to popularity in the United States after Apple included an emoji keyboard on its iPhone in 2011. The advertising company Swyft Media estimates 6 billion emojis and other pictograms are sent each day and a report by an Internet startup Emogi found 92 percent of the online population uses the icons.
That rise has led to challenges.
Police are trying to judge just how serious to take threatening messages using emoji, which are most often deployed in a light-hearted manner. Attorneys have argued over whether emoji should be presented to juries as evidence. Experts say the biggest problem is simply determining in court what a defendant actually intended by sending a particular emoji.
Is a winkie face emoji ironic, flirtatious or menacing? What exactly do the popular dancing girl or grinning pile of poo emoji actually mean — if anything — when appended to a message? Emoji have no set definition and their use can vary from user-to-user and context-to-context.
“You understand words in a particular way,” said Dalia Topelson Ritvo, assistant director of the Cyber Law clinic at Harvard Law School. “It’s challenging with symbols and images to unravel that.”
Ritvo said that some of these issues will likely play out in the Fairfax case.
It began on Dec. 14, when a resource officer at Sidney Lanier Middle School in Fairfax was made aware of the threatening Instagram post and others, according to a search warrant.
The officer began interviewing students and sent an emergency request to obtain the IP address of the user associated with the Instagram account. The investigation led to the 12-year-old, who was also a student at Lanier. The Post generally does not name juveniles accused of crimes.
The search warrant states the girl admitted to authorities she posted the messages on Instagram and did it under the name of another student. She was charged with threatening the school and computer harassment. A spokesman for Fairfax County schools said the alleged threat was deemed “not credible.”
The girl was scheduled to make her first appearance in juvenile court on the charges at the end of the month, but it is unclear whether the case has been resolved since the hearings are not open to the public.
Authorities have not released a motive in the case, but the girl’s mother said the girl posted the messages in response to being bullied at school.
“She’s a good kid. She’s never been in trouble before,” the woman said. “I don’t think it’s a case where there should have been charges.”
Ritvo said the girl’s message sounds threatening, but prosecutors and the judge will have to sort out whether the bomb, gun and knife emoji indicated a desire to threaten the school, simply anger, or something else entirely.
Other cases have run aground on similar distinctions.
Last year, a New York City teen was charged with making a terrorist threat after posting a message on Facebook that read “N—a run up on me, he gunna get blown down” followed by a police officer emoji and three gun emoji pointed at the icon’s head.
A grand jury later declined to indict Osiris Aristy, 17, on the charge and his attorney said the case was one of overreach by law enforcement. Fred Pratt said he’s seen other clients use emoji the same way.
“I think something is definitely lost in translation,” Pratt said of the police interpreting the teens’ emoji use. “These kids are not threatening cops, they are just trying to say, ‘I’m tough.’ It’s posturing.”
Other cases have brought up an even more basic question: Should emoji even be considered as evidence?
A strange scene played out at the federal trial of the man accused of running the online drug market, Silk Road, last year in New York City. As a prosecutor began reading an Internet post to the court, Ross W. Ulbricht’s attorney raised an objection.
Ulbricht’s attorney said the prosecutor had omitted mention of a smiley face emoji that punctuated and imparted meaning to a sentence. Afterward, the judge instructed the jury to take note of the emoji in the posts, saying they were part of the evidence.
Even so, there is still no set protocol in the courts for how — or even if –they should be presented to juries. It’s an issue that the legal system will likely be sorting through in the years to come.
In some cases, judges have been asked to interpret the meaning of emoji and emoticons (relatives of emoji made with traditional keyboard characters), including the Supreme Court. Anthony Elonis, a Pennsylvania man, argued that his conviction for threatening his estranged wife via Facebook should be overturned in a case decided last year.
Elonis, in the persona of a rapper, posted graphically violent lyrics about killing his wife on Facebook. His wife said she interpreted the posts as threats, but Elonis argued they were fictitious.
He indicated in some posts the lyrics were art or therapy. In others, he followed posts with the emoticon (a relative of the emoji) of a face with its tongue sticking out: :P. Elonis argued the pictograms proved the posts were jests.
The justices ultimately sided with Elonis and tossed out his conviction, in a ruling that made it harder to prosecute people for threats made on the Internet. Emoji are likely to get close scrutiny when they pop up in similar cases going forward.
Bradley S. Shear, a Maryland attorney who specializes in Internet issues, said the issues surrounding emoji and the legal system will only proliferate.
“These cases are only increasing,” Shear said. “The more people are using their cell phones and posting on the Internet, the more emoji will creep up as evidence in cases.”
And that could leave judges wanting to type: ¯\_(ツ)_/¯
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