When someone threatened Fletcher Babb's life via Instagram, he wondered whether he could report it to the authorities. The death threat wasn't written in English, after all. It came via emoji.
The penalties for threatening comments on social media, even in jest, are well documented. But threats delivered via emoticons are unexplored territory in cyberlaw. According to legal experts, however, there may be some circumstances under which a sinister assemblage of emojis would constitute harassment, even assault.
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At the time, freelance journalist Babb was investigating Instagram's widening black market, specifically, the sale of promethazine and codeine-laced cough syrup, a.k.a. "lean."
"Remember Silk Road?" Babb wrote in the resulting article for Vice. "It's kind of like that, but on the same iPhone app that you use to take a photo of your brunch."
His research led to the Instagram account of an Atlanta-based rapper, who sold the drug in plain sight on the app. Babb reached out to him in a text message, posing as a potential customer. The entirety of their interaction consisted of seven texts.

Image: Courtesy of Fletcher Babb
Babb's correspondence with the drug dealer. Screenshot courtesy of Fletcher Babb.
Babb tells Mashable he never intended to follow through with the purchase — he simply wanted to see how close he could get, for the story. He never bought any drugs, and he never sent any money through Green Dot, the payment method (linked to a recent Instagram scam) the dealer requested as an alternative to PayPal.
So it was a surprise to learn, shortly thereafter, that the dealer accused Babb of ripping him off.
He opened the app to find that the dealer (name withheld at Babb's request) was calling him out for allegedly placing an order for lean, then subsequently withdrawing his payment. In response, the man posted a photo of Babb's Instagram account to his own feed and tagged him in it, along with a foreboding collage of emojis: a face with X's for eyes, and a gun pointing at the face.
In the comments, the dealer said he would remove the photo as soon as Babb delivered the money.

Image: Courtesy of Fletcher Babb
The threat posted on Instagram. Screenshot courtesy of Fletcher Babb.
It might have been a big misunderstanding, or maybe a deliberate ploy to extract money from a randomly chosen Instagram user. According to Babb, there's no way the dealer could have known that he was a reporter, and there was no way he could have even connected "Fletcher Babb" to those seven text messages. Babb used an app called Burner to generate a random phone number from a Montana area code.
"As far as I know, it is completely impossible for him to know that this one anonymous text was related to that [Instagram] account," he says.
The real problem was that Babb's Instagram profile was public, and there were plenty of geotagged photos that mapped his movements around his city and his neighborhood. Someone could have easily tracked him down, brandishing a real gun.
Babb reported the post to Instagram, but the company never removed it. The dealer's account was deleted several days after the threat was made — shuffling accounts is a common practice among drug dealers to avoid detection.
Since the event in December, Babb remains safe. He's also upped his privacy settings on Instagram.
But could he have gone to the police? Could anyone, facing a similar emoji-based threat?
"When law enforcement investigates, they have to determine whether a person would have been reasonably threatened," says Justin Patchin, Ph.D., a professor of criminal justice at the University of Wisconsin-Eau Claire and co-director of the Cyberbullying Research Center. In Babb's situation, "I think a reasonable person would be threatened by that."
Intimidating or threatening imagery delivered via emoji, especially if it has been sustained over time or if the threats are coupled with some physical action, could warrant a criminal case on the grounds of assault or stalking, according to Patchin. It could also be tried under civil or tort law as a case of defamation or an intentional wrong resulting in harm.
The penalties for such charges vary from state to state. In Virginia, for instance, where Babb is located, the threat of assault typically results in a misdemeanor charge punishable by up to one year in jail and a fine.

Image: Mashable Christina Ascani
Image: Mashable, Christina Ascani.
Potentially, the case could also fall under federal jurisdiction, says Patchin, since the threat crossed state lines by passing through Instagram's California servers (the same would be true of a threat delivered on Facebook).
Online, it's not enough to claim a threatening comment is "just a joke" or that netspeak, such as "LOL," mitigates the danger. In February 2013, for instance, Texas teen Justin Carter was arrested for a sarcastic Facebook comment made while arguing over the game League of Legends.
"I'm f*cked in the head alright," wrote Carter, according to court documents. "I think I'ma shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them." He followed the comment with "LOL" and "J/K."
Carter spent five months in prison on a felony charge of terroristic threats before being released on $500,000 bail, posted by an anonymous donor.
"If someone makes a death threat, online or offline, there's no difference in the way it's treated," says Bradley Shear, a lawyer specializing in social media and Internet law. "Whatever laws exist in the real world are usually applied to a threat in the digital world."
This is still highly theoretical, of course. There has yet to be a publicized court case dealing with a threat or threats delivered via emoji. Given the troubling proliferation of cyberbullying on social media, however, it's likely a matter of time.
Social media users can insulate themselves from threats similar to Babb's in the meantime, Shear says. "People should be more careful with their digital footprint. You don't know what people are going to do with what you're posting. Worst case scenario, someone is utilizing it against you."
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Mashable composite. Image: iStock, roccomontoya.