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Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Slashdot regular Bennett Haselton summarizes his essay by saying "Spammers really do lie more often under oath than other parties in court (surprise). Judges and prosecutors could promote respect for the law by cracking down on it, and maybe make a dent in spam in the process." Read on to learn of his experiences with (shocking!) spammers who lie in court.

I'm sure everyone feels like their opponents in court are the most reprehensible liars that ever walked the face of the Earth. But these instances seem unusually clear-cut even for a courtroom:

• When I sued one Ohio company for sending me spam, they sent a letter to me (and, when that didn't work, to the court) claiming that someone had dropped a business card in their box at a trade show with an e-mail address one letter different from mine, and they must have mis-read the address when typing it in. They didn't know that after I first got their spam, I called them pretending to be an interested customer, and tape-recorded a conversation with their advertising manager, pretending to be impressed and asking him how he did it (I was in Arizona, so it was legal to tape the call). He admitted that he used a program to scrape e-mail addresses from Web pages into a list and spam them from his desktop.

• A spammer who lived in Washington appeared in court and claimed that he had never sent the spam in question and wouldn't know how. I then produced a tape recording of another conversation in which I had talked to him on the phone, again pretending to be an interested customer, and he talked about sending the mails from a server in China to make it harder for people in the U.S. to block them.

• One company called "Lions Pride Enterprises" actually sent a representative from out of state to tell the judge, "I can tell you, under penalty of perjury, that we looked up the address bhas (at) speakeasy.net in our records, and verified that he had signed up for our list via confirmed-opt-in" (this was right after he explained to the judge, more or less accurately, what confirmed-opt-in meant). Except the mail hadn't been sent to bhas (at) speakeasy.net, the headers showed it was sent to bennett (at) peacefire.org and then forwarded to bhas (at) speakeasy.net. Presumably the spammer just looked at the first address they could find in the headers and assumed that's the one they had mailed, and claimed that address had "opted in." (Much later, this same company apparently branched out into infecting people with spyware.)

• A spammer from Michigan called in to the court hearing by phone, to defend against charges that he'd sent me a spam advertising credit card processing services, and claimed, "I don't even sell merchant accounts." (He lost, due to inconsistencies in his story -- the judge in that case was unusually tech-savvy.) A few weeks later, the same guy sent me another merchant account spam, so I sued him again, and this time he called in to the court hearing (with a different judge) and admitted that he'd sent the spam, but claimed it was legal. I tried to challenge his credibility on the grounds that he'd testified under oath earlier that he "didn't even sell merchant accounts," but the judge said I wasn't allowed to bring that up.

Meanwhile, I've sat through dozens of other people's Small Claims cases, and I've never seen anyone in a non-spammer case get caught really, brazenly lying under oath. Of course, it always seems more egregious when it's your opponent -- but I probably would have noticed if someone had gotten tripped up by a physical document or a recording of their own voice.

The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial is that it's just not worth it. The King County Prosecutor's office responded to my inquiry to say they could not recall any instances of someone prosecuted for perjury committed in a civil case. It is not true, by the way, that civil perjury is never prosecuted — when this assumption was making the rounds in 1998 during the Clinton perjury controversy, Professor Stephen Gillers of NYU published a list of counterexamples -- but he conceded in an e-mail that it's nevertheless highly unlikely. Perhaps this makes sense for most trials, where parties come from a general population that includes some honest people and some dishonest people, and even dishonest people often just bend the truth to a degree that outright lying would be hard to prove. (Although I still think it's possible that the costs of prosecuting people who lie under oath in civil cases, might still be outweighed by the benefits of having everyone be scared into being a little more truthful in court proceedings.)

But spammers are different. In the U.S., all spammers are liars — either they are lying to their hosting provider about what they're doing, or, if they have a secret agreement with their provider to avoid getting kicked off, they are complicit in their provider lying to the rest of the world by claiming that they don't allow spam to emanate from their network. (I'm assuming that 100% of U.S. providers at least claim not to allow the sending of spam. This may not be true of the entire world.) Those lies in themselves can't always be punished in court — I can't sue a spammer for lying to their service provider — but I think that courts just haven't realized that all spammers are liars to some degree, and they're more likely than average to lie under oath. This may make the cost-benefit analysis different in the case of prosecuting spammers who get caught lying. You wouldn't need a "spammer perjury law"; there are already laws against perjury, if judges wanted to enforce them.

Courts could start with deterrents that don't cost anything. All judges start out their Small Claims hearings by laying out the rules. Some of them include some very stern admonitions about parties not interrupting each other or the judge (one judge, who possibly had a bad morning, started the afternoon session by threatening to have anyone thrown in jail who argued with him). But I've never seen a judge say anything about being strictly required to tell the truth under oath, with penalties for lying that theoretically include jail time. And if someone does get caught lying, the judge could reprimand them as strongly as possible and stop just short of recommending a criminal prosecution. "Oh, wow," you're laughing, "a stern reprimand! That'll teach them!" But that's what judges do to people who interrupt the judge or each other, and it does get people's attention.

In the examples above, what was surprising was not that the spammers lied to the court but that the judges seemed so blasé about it. In the first case, I had gotten spammed by an Ohio company called SAY Security. After I filed the Small Claims suit and served the papers on them in the mail along with a copy of the spam, I got an e-mail from the owner, Jason Szuch, claiming that they had received a business card at a trade show with 'bnas (at) speakeasy.net' handwritten on it, and accidentally replaced the 'n' with an 'h', and that's how I had gotten their mail. They later made the same claim in a letter to the judge. At the trial, SAY Security didn't show up, so I first pointed out that the e-mail had been sent to bennett (at) peacefire.org and automatically forwarded to bhas (at) speakeasy.net, so it was another case of the spammer mis-reading what address it was sent to, and coming up with a story after the fact. I also had a recording of a conversation with SAY Security's advertising manager, in which he explained how he used a program called Email Extractor to scrape e-mails from Web pages and send the ads.

At that point, the judge thought he had me: You're not allowed to record phone calls in Washington without the consent of all parties. I told him that I knew this, which is why I had made the call and recorded it while I was visiting my Mom in Arizona, which has no such law (and neither does Ohio, which was where the other party was — in order to secretly tape a phone call, it has to be legal in both the caller's state and the call recipient's state). The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence." They say, on the one hand, "You can't secretly tape a phone call in Washington," and on the other hand, "You cannot use evidence that was obtained illegally" — but if the call was taped in Arizona and then brought to Washington, it wasn't obtained illegally. I compared it to winning money by gambling in Vegas and then bringing it to Washington to pay the Small claims filing fee — what difference does it make that gambling is illegal in Washington? Oh well, different judges probably would have come to different conclusions on that.

But the real point is that even if the judge did think the recording was inadmissible, couldn't he have still said something like, "Well, if the court did admit this evidence, and if these defendants were here, then they could very well be arrested for perjury — if they were here, I'd tell them that they just had a really close call." At least for the benefit of everyone else who was in the courtroom, waiting for their case to be heard — send a message that the court does care if you get caught lying. As it was, he just shrugged it off, and I got a default judgment since SAY Security didn't show up.

The second case was against a spammer named Joe Spies, who did live in Washington, and who came to court claiming that he didn't know how to send spam and had never made anyone an offer to send spam for money. Again, I had a recording of a phone call in which I pretended to be an interested customer, and he said he could send "5 million e-mails for $500" from a server in China. (This time, since both parties were in Washington, I used a phone number I had specially set up so that people who called it would hear a disclaimer saying "Your call may be monitored or recorded," before it forwarded to my home phone.) Judge Karlie Jorgensen said that even with that phone call, there was not enough evidence that the defendant had sent the e-mail. (This was also the case that I wrote about when I filed a motion with the middle two pages stuck together in the center, and after the motion was denied, I went to the courthouse and saw that the pages were still attached, so I knew that she hadn't read it.)

Lions Pride Enterprises was the other company who sent a representative claiming that they had sent the mail to bhas (at) speakeasy.net and saying, "I swear under penalty of perjury [he was already sworn in, but repeated it presumably for dramatic effect] that I checked personally, and the address bhas (at) speakeasy.net subscribed to our list via verified opt-in," even though the mail had actually been sent to bennett (at) peacefire.org. This was my first spam case, so at the hearing I stuck to my script and I didn't think to point this out to the judge. But if the courts took a harsher view of defendants lying under oath, maybe it would have been worth the time to write a letter to the judge later after I realized the defendant had lied. (In theory, you can be prosecuted for lying under oath even if it's not discovered until after the original trial is over -- since "in theory" is the only place where spammers are punished for lying under oath anyway.)

Finally, in May 2008, a spammer in Michigan named John Tucker called in to a court hearing in which I'd sued him for sending me more spam advertising merchant accounts, as well as the company, Pivotal Payments, on whose behalf he was sending the spam. Tucker admitted that he had sent the spam but claimed that Pivotal Payments had nothing to do with it, at which point I attempted to discredit him by bringing up what he'd said at the last trial:

Me: I wanted to address something that Mr. Tucker said. He sent the faxes saying that he sent this e-mail but he doesn't think it's a violation. But he has stated under oath, to the court, at one point: "I don't even sell merchant accounts." Now I want to introduce that statement because there's a specific rule in the Rules of Evidence, ER 801, which says--
Judge Eiler: Well, don't quote the Rules of Evidence at me. The Rules of Evidence do not necessarily apply in Small Claims Court. If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds. So, don't quote to the rules of Evidence. If you think there's something that you want to tell me, tell it to me straight out.
Me: All right. I want to challenge the credibility of John Tucker as a witness, because he has in the past said under oath in court, "I don't even sell merchant accounts."
Judge Eiler: Did he do it in this court?
Me: Yes.
Judge Eiler: Did he do it today?
Me: No. It was under oath.
Judge Eiler: Well, while you may tell me it's under oath, it wasn't in front of me, I'm not going to hear it. Move on.
Me: Well--
Judge Eiler: Move on.
Me: Do you want the audio?
Judge Eiler: Do you want to move on?

Now there's an odd statement -- "If I were to apply the Rules of Evidence, we would have hearings that lasted about 25 seconds." In Small Claims, the Rules of Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?

Largely on the basis of John Tucker's testimony absolving Pivotal Payments, and their claims that they refused to pay him once they found out he was spamming, I didn't get a judgment against them (I did get another judgment against John Tucker, although I doubt that he has any assets). Later John told me on the phone that Pivotal Payments did pay him the money they owed him after the trial, in accordance with their agreement with him that he would get paid once they were dismissed from the lawsuit. If that's the case, then they lied under oath, too.

This was the same Judge Eiler who, in an earlier case, said that an e-mail "didn't quite have the earmarks" of "spam" sent in bulk, when the e-mail said "I run the web site Work At Home Business Opportunities [...] Please post a link to my site as follows...". The Commission on Judicial Conduct formally reprimanded her in 2005 for being rude to plaintiffs representing themselves; she is currently facing charges for the second time for the same issues, including "preventing pro se litigants [i.e. people representing themselves] from fully presenting their testimony or their positions in court." The CJC receives hundreds of complaints every year about rude and inappropriate behavior by judges, and rejects 97% of the complaints. For a judge to get on their radar even once is an achievement; to do it twice probably warrants a steroids test.

But with regard to laxity towards spammers lying under oath, she is indeed no worse than any other judge. Although Professor Gillers's article showed it's not true that no one is ever prosecuted for civil perjury, it's no wonder that people think that's the case, based on the rarity of prosecutions, combined with the outcomes of the two famous cases that people have heard about. Bill Clinton was disbarred from practicing law before the Supreme Court and had his Arkansas law license suspended for five years, but was never prosecuted; Kwame Kilpatrick was heavily criticized for lying under oath, but only went to jail for violating the terms of his bond. The defenders of both men had a point that even if they lied under oath in a civil case, hardly anyone else ever got punished for that.

In fact, I don't think all perjurers should be prosecuted — Clinton and Kilpatrick were lying to cover up extra-marital affairs, after all. When Clinton was asked during Paula Jones's sexual-harassment lawsuit whether he had ever had a sexual relationship with any other subordinate, if he had answered "Yes" out of the blue and voluntarily spilled out all the lurid details about Monica Lewinsky, wouldn't you have thought, "Dude, you could have just said, 'No'"? They probably shouldn't have gone to jail for perjury. But the mud-slinging they endured, as partisan as it was, at least reminded everyone that a rule had been broken.

The judicial branch can instruct judges at all levels to take perjury in civil cases seriously — at the very least, judges should act angry when someone gets caught lying under oath, at least as angrily as they act when someone interrupts them. That promotes respect for the rule of law, and it doesn't cost anything. And if some parasite like a spammer gets caught lying, prosecutors may be doing the world a favor by pressing criminal charges against them.

In other words, I agree with Thomas Sowell, who responded to defenders of Bill Clinton who said that "everybody" lies about sex: "Everybody urinates every day, but if you do it in a court of law, you will be arrested. And then you will be tried by a jury of your PEERS." OK, I made the last part up.

Frequent Slashdot Contributor Bennett Haselton writes with his latest which starts "If I were writing laws such that I wanted everybody to agree on how to interpret them, I would use the software development life cycle: First, have lawmakers (analogous to "developers") write drafts of the laws. Then a second group (the "test case writers") would try to come up with situations that would be interpreted ambiguously under the law. Then a third group, the "testers", would read the proposed law, read the test case situations, and try to determine how the law should be applied to those cases, without communicating with the law writers, the test case writers, or each other. If there's too much disagreement in the third group on how the law should be applied, then it's too vague to be a proper law. The only laws which made it through this process would be ones such that when they were finally passed, most citizens (the "users") could agree on how to interpret them, in cases sufficiently similar to the ones the test case writers could come up with."

The irony is that this is how laws are supposed to work anyway. Laws have been struck down as being "void for vagueness" on the theory that people ought to be able to read them and know what they mean. But what does "vagueness" mean, if not that different people cannot independently agree on what a law means, and even the nine highest-ranked legal experts in the country are split 5-4 on how to read it? Some Supreme Courts, such as under William Howard Taft, tried to reach unanimous verdicts whenever possible on the theory that it would persuade people of the correctness of their decisions. But unanimity doesn't prove anything if it was achieved by agreeing to agree. Only if judges were put in separate rooms and independently agreed on how to apply a law to a given case, would that prove that the clarity came from the text of the law itself. Legislators ought to start at least trying to pass laws that would meet that test.

For some reason we seem to have just accepted the alternative as the status quo, where laws are passed that express a general sentiment ("no spam with a 'misleading' subject line") but nobody thinks that you could put two people in different rooms and expect them to agree on how the law would apply in most cases. The parties involved in the first court cases may have to spend ruinously large amounts of money to get to the point where judges rule on how to interpret the law, only to find that lower court judges disagree with each other. Meanwhile, anybody bringing a case now has to look up not just the law, but reference the lower court rulings that support their side, while their opponent of course references the other rulings. And even if a case does finally get appealed up to the Supreme Court, which issues a ruling binding on all lower courts, future researchers still can't find out the state of "the law" by looking up the statute; they have to look up the statute and read the Supreme Court ruling which states how the statute should be read (which may still be ambiguous as applied to their current situation). All of this costs a lot of money, which results in a huge waste of resources if both sides can afford it, and tilts the playing field if only one of them can.

I wonder if the reason this is so widely tolerated is because people have absorbed the notion that making and interpreting laws has to be hard, like brain surgery. But brain surgery is hard because the brain is naturally complex and not man-made. Lawyers also have to learn a lot of complex procedures, but not as complex as brain surgery; the major difficulty in a court case is guessing how the judge may interpret an ambiguous law (which is not "difficult" so much as a matter of being lucky), and knowing the unwritten rules that govern what actually happens (including which written rules are followed and which ones are ignored). And there's no reason in principle why this guesswork couldn't be reduced by having laws be more clear to begin with, and putting the "unwritten rules" down on paper.

I watched a scaled-down version of this play out in the first few cases that I brought against spammers in Small Claims court in Washington (although it involved only a waste of resources, not money, since Small Claims doesn't allow lawyers). You know the chorus, so all together now: Some judges said you could sue people out-of-state, and some said you couldn't. Some judges said you could sue for statutory damages in Small Claims, and some said you could only sue if you'd lost money. Some judges said that you could represent a corporation that you own, and some said that if you're a non-lawyer, you can't even represent your own corporation. Some said you could sue under a federal law in Small Claims, and some said you could only sue under a federal law in federal court. There are many more examples, and those were just the contradictions about Small Claims court procedure generally, not even counting the specific issues raised by the anti-spam law.

But as much as I've complained about that in the past, I don't blame the judges for that part. If the law is unclear, then judges have to come down one way or the other. (What I've complained about is when judges say that their interpretation is "the law", and that if you don't get it, you have to do more research. Lawyers know to take this kind of comment with a grain of salt, but a non-lawyer who takes it at face value, could end up wasting dozens of hours or hundreds of dollars in lawyer's fees before realizing that the judge's interpretation was not actually the law, and a different judge might have said the opposite. The judge should just be honest and say, "Well, I'm the ref and this is how I'm calling it. On another day with another judge you might get something else." I've had cases heard by some judges who basically said as much.) Often both interpretations are reasonable, but that's the point -- if both interpretations are reasonable, then there's something wrong with the way the law is written!

For example, there was the judge who said that you couldn't sue in Small Claims unless you'd lost money, because Small Claims jurisdiction is limited to "cases for the recovery of money only if the amount claimed does not exceed four thousand dollars". Most judges interpreted "recovery of money only" to mean that Small Claims courts can only award money damages, and not, for example, order someone to return property. Two judges, however, said that "recovery of money" implied that you could only literally "recover" money that you used to have and then lost (relying on the common English meaning of the word "recover"). In legal jargon, however, "recover" often simply means taking something from another party, and I won one such case on appeal after I submitted three Supreme Court rulings as evidence that used the phrase "recover statutory damages" or "recover punitive damages" in that sense, since statutory damages and punitive damages refer to money over and above what the plaintiff actually lost. (The original judges did not change their minds, but one of them later recused herself from any future spam cases filed by me, a move that I thought was questionable.)

Here's another example where there's no excuse for the law not to be completely clear, since it's specifying a number. To appeal a Small Claims ruling in Washington, you have to post a bond for "twice the amount of the judgment and costs, or twice the amount in controversy, whichever is greater". Presumably the "amount in controversy" means the amount that the plaintiff was suing for. But hang on -- in Small Claims you can't possibly be awarded more than you sued for. And that means the "the amount of the judgment and costs" will always be less than or equal to "the amount in controversy"! So why not just say "twice the amount in controversy"?

Or perhaps the "amount in controversy" only means the amount that the plaintiff and defendant disagree on. So if you sue someone for $2000, and the defendant agrees on the first $500 but not the remaining $1,500, and the judge's interpretation falls in between and she awards you $1,200, how much of a bond do you post if you want to appeal? $3,000, literally twice the "amount in controversy" between you and the defendant? $2,400, twice the amount of the judgment? $1,600, twice the difference between what you sought and what the judge awarded you? $4,000, twice the amount you sued for?

Beats me. When I first started out, I'd drive myself and my lawyer friends crazy asking, "Well, what's the rule? What's the answer?" Well, now I know: There is no rule, it just depends on what the judge says. Actually in this case, it depends on what the clerk says -- because it's the clerk at the courtroom's front office, not the judge, who handles the paperwork for an appeal and checks that you posted a bond for the right amount, so you have clerks effectively deciding how to interpret the law. (Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't seem correct under any interpretation of the law, since the "amount in controversy", however you define it, was greater than the "amount of the judgment" of $565.)

Sometimes, courts have settled on how to interpret a rule, but the interpretation is still different from what the rule actually says. The Small Claims form that you serve on defendants says, "You are further notified that, in case you do not appear, judgment will be rendered against you for the amount of the claim as stated herein below..." This is not true -- you can lose even if the other party does not appear (if the judge thinks, for example, that a spam's subject line was not misleading enough). I understand that having that line on the form serves a useful purpose by getting people to show up. But it's still wrong, and everybody knows that it's wrong, and it's on the form anyway.

A more serious example: When I first started suing spammers, if I thought they would show up in court, I'd sometimes try to go to the trouble of catching them in a lie, like the guy who showed up and claimed he didn't know anything about any spam, before I showed that I had recorded a phone call where he admitted that he could send out 5 million e-mails from Chinese servers for $500. (Yes, taping the call was legal -- follow the link for more info.) The written rule is that if you lie under oath in court, you can be arrested for committing a felony, even if the case is only a civil trial. But it turns out the unwritten rule is that perjury in a civil case is almost never prosecuted, and in most of my cases where I had proof that the defendant lied, the best that would happen was that I'd just win the civil case anyway, and sometimes not even that. It's not just Small Claims, either -- in one currently ongoing case, the defendant's lawyer just filed an answer to our complaint stating "Plaintiff subscribed to receive our e-mails". There's absolutely no way their attorney believes that to be true (with the spam in question being sent by mortgages spammers from forged domains, it's hard to see how anyone could "subscribe" to receive those mails even if they wanted to), but attorneys are required to submit such briefs with good faith in their veracity. So why isn't he on the hook for that? Because of the unwritten rule that courts just don't make a big deal out of it.

The point is that none of these issues is hard to grasp. The difficulty lies not in understanding the problems, but in the impossibility of guessing how a judge will interpret an ambiguous rule -- or, in the case of an unwritten rule which contradicts the written ones, the difficulty of knowing the unwritten rule if you don't have a lawyer's experience.

So, ambiguous laws could be divided into three categories:

1. Laws and rules where there ought to be no ambiguity at all -- for example, rules about who can be sued where, and for how much, and what size bond you have to post if you want to appeal. The fact that these laws are not clear enough to be universally agreed up on, is just silly. (Again, if judges have a conference or an e-mail discussion and decide on an interpretation, that doesn't mean the law as written was clear -- in fact, the fact that they had to have that discussion, proves that it wasn't.)

2. "Unwritten rules" that are generally agreed upon by lawyers and judges, but which are not actually written down or may even contradict the rules codified into law. Are trials and proceedings actually conducted according to written rules? The acid test for this would be: Hire a physics professor or somebody (so the legal establishment can't use the excuse of calling him a dumbass) and have him look at the history of events and documents in a typical civil case, from the vantage point of one side's lawyer. At each stage in the proceeding, before the professor sees what the lawyer actually did next, have the prof try to figure out what they would have done, based on the written rules. (The question is not whether the prof would have come up with the same strategy as the lawyer, but whether they would have done something that was procedurally correct at all.) If there are too many cases where the professor does something that technically conforms to the written rules, but where the lawyer says it would have been rejected by the court as procedurally invalid -- and if the same thing keeps happening with more and more smart non-lawyers trying the same experiment -- then this suggests that either the procedures need to be changed to conform with the written rules, or the written rules should conform with the procedures. (Because actually changing laws and rules is so hard, a better idea would be to publish an "annotated version" of the court rules which describes the procedures the way they are actually followed.)

3. Laws governing situations where ambiguity is hard to get rid of -- for example, the part of the Washington anti-spam law prohibiting "misleading subject lines". Here the question is whether a mushy category like that could ever be clearly defined so that people would independently agree on what it meant.

For the first two categories, bringing some clarity to those laws ought to be a no-brainer. Some candidate like Ron Paul or Dennis Kucinich who can say whatever they want because they're not going to win anyway, should make an issue out of it. They wouldn't have to fix the problem all at once. They could just promote it as a core American value that has been overlooked: Laws and court rules should be clear, and they can't be called clear unless people can independently agree on how to read them. The Left could get behind it because it would bring more equality between the rich and poor in the legal system. The Right could get behind it because they style themselves as the party backing judges who are "strict constructionists" that apply the law as literally as possible. (Although at the risk of alienating potential right-wing supporters, I don't think that "strict constructionism" would have much meaning until laws are clarified using something like this process. To say that this or that judge is a "strict constructionist" under our current laws, often sounds to me like a bunch of hooey, when the laws are too ambiguous for anybody to strictly construct anything out of them. Clarence Thomas, who is often held out as an example of a "strict constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court case that extended First Amendment rights to high school students, is "without basis in the Constitution". But there's nothing in the First Amendment to say that it's limited to individuals over 18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

The third category of ambiguous laws would be more interesting to try to fix. Would it be possible to come up with a standard for a "misleading" subject line that everyone could agree on? Probably not. But I think you could measure the ambiguity of a law by using testers and test case writers in the kind of procedure I suggested in the first paragraph, and you could get to the point where there was less disagreement among the testers on how to interpret the law as applied to typical subject lines.

If lawmakers knew in advance that their laws would be subject to that kind of test, they would write them more clearly the first time around. Why couldn't laws be written to include a list of hypothetical situations, for example, specifying which situations the law covered and which ones it didn't? For example, a list of sample spam e-mails to illustrate what the law means by a "misleading subject line". Of course, the trouble with picking examples to illustrate your own points, is that people tend to pick examples that fall squarely in the middle of the categories they're illustrating ("your refund has been processed" is misleading, "printer cartridges for sale" is not). If the lawmaker included illustrative cases like this that were too-obvious examples of what they were describing, then the "test case writers" would be able to shoot down the proposed law by picking hypothetical cases that were closer to the borderline (so that in the third phase, when the testers tried to apply the law to those borderline cases, different testers would classify the borderline cases differently, and the law would fail the vagueness test). To mitigate this, the author of the law should pick illustrative examples that would be at or near the borderline, thus providing clearer guidance as to where the boundary lies between a misleading and non-misleading subject line. Which is what they should be doing in the first place.

Now, there are some problems that even the double-blind test for unambiguous laws, would not solve:

• Judges could be systematically biased against a particular law (and even proud of it), in which case they can make things difficult for you even if the law is unambiguous. Or, they might be so biased in favor of a law that they carry it further than the clearly proscribed boundaries, as in the case of a judge who upheld the conviction of a man for sending sexually explicit instant messages, even though the law in question was clearly limited to e-mails.

• Judges may not take cases seriously from non-lawyers. In one series of cases that I brought, I filed written motions with two of the pages stuck together by a tiny thread of paper, so that after the judge ruled, I could examine the motions in the court file to see if the thread was still intact. I found that about half the time, the judge had rejected the motion without reading it.

  This is a hard obstacle to overcome, especially after the Commission on Judicial Conduct ruled that it was not a violation of the Code of Conduct for a judge to reject a motion without even turning the pages. It wouldn't do any good to show that judges ruled against pro se (self-representing) plaintiffs more often than against lawyers, because judges could claim it was because pro se plaintiffs just made more errors (although it would be hard to use this excuse to explain why judges rejected briefs without reading them at all). One way to test this would be to have judges conduct the trials "blind" so that they would see the briefs presented by each side, but they wouldn't know whether the brief was submitted by a lawyer or a non-lawyer representing themselves. However, this would require difficult changes to the way legal procedures are conducted

  A simpler way might be: Once the "unwritten rule book" has been authored, such that your typical non-lawyer in the above experiment knows what kind of briefs to submit at each stage of a trial, have a legally trained third party look at briefs written by the lawyer and briefs written by an average lawyer, and see if they can tell which is which. If the third party can't tell, then that indicates the non-lawyer is writing the briefs almost indistinguishably from a lawyer -- and then if a judge in a real trial keeps hammering them for "procedural violations", it would be because of the judge's knowledge that the party was a non-lawyer, and not because of what the party actually did. On the other hand, if the judge ruled against the person in the same proportion that that person's briefs were being flagged as "obviously written by a non-lawyer" in the double-blind experiment, then that would indicate the judge was being fair.

• Even if a law is perfectly unambiguous, judges may disagree on whether it is constitutional under the First Amendment, for example. Making these situations unambiguous would involve tampering with the First Amendment, probably not a good idea in this or any other political climate.

• It wouldn't do anything about the corrupt process by which laws are often passed in the first place, in exchange for campaign contributions. (As one scholarly analysis says, "It's exactly like buying a hamburger, except that under our laws, everybody must pretend that nobody is buying anything, and nobody is selling anything.")

But notwithstanding these problems, I think any law that could pass the double-blind interpretation test, would be an improvement over one that can't. First, because it appeals to our sense of fairness to have rules clearly laid out. Second, if we really followed the void for vagueness doctrine, laws would be able to pass that test anyway. Third, economists have documented that there are economic benefits to having stability and predictability in the law. Economist Thomas Sowell wrote in Race and Culture that in some historical periods, even when groups given second-class status under the law (such as Jews in Eastern Europe or the Chinese in Southeast Asia), they were able to prosper better than they did elsewhere, as long as their basic property rights were protected, and the laws, even the discriminatory ones, were consistent and predictable!

This isn't something that would require a wholesale change in a state's constitution or lawmaking procedure. Any legislator could voluntarily try this process out to see if it resulted in laws that were easier for constituents to understand, and had a greater chance of being interpreted by judges to give the result that the legislator wanted. Imagine having an anti-spam law, for example, which said:

Misleading subject lines are prohibited. This includes not only subject lines which contain false advertising, such as:

• 'lotion that cures baldness'
• 'legal copies of Windows for $20'

but also subject line that mislead the user into wasting time on a message. This is because a large part of the harm done by spam is not due to the falsity of the advertisements, but due to the time that users waste on each message before realizing that it's an advertisement. As such, misleading subject lines include those that mislead the user into thinking that the message is from a personal acquaintance, such as:

• 'Congratulations!'
• 'Touching base'

or a subject that misleads the user into thinking that the message is a 1-on-1 communication, such as:

• 'Re: Question about your website'
• 'Shareholder request'
• 'urgent cancer call'
• 'Reminder: link to your website http://slashdot.org/'

[Except for the first group, all of these are subject lines from real spams that I received, which Small Claims judges ruled were not misleading. Giving them the benefit of the doubt, I think they are applying the standard of whether a spam constitutes fraudulent or deceptive advertising, not whether it tricks you into opening it. But the original author of the anti-spam law, when talking about other proposed measures, stated that the point of anti-spam laws is that "Computer users should be able to know instantly what's spam and what isn't."]

If you were reading a series of legal statutes and came across one written like this, it would be jarring, like reading a Wikipedia article about cell division and then getting to the part where someone wrote "And Bennett is gaytarded". But that's because we're accustomed to laws being ambiguous, not spelling out how they should be interpreted using reasons and examples. I would like to see some lawmaker, somewhere, insert a law into their state's legal code that looked and sounded something like this. The idea is so radical that maybe it could only be done by an eccentric, like the congressman who had Elmo testify before a Congressional committee before he was arrested for bribery (the Congressman, not Elmo), or the guy who passed a House Resolution commending Napoleon Dynamite ("any members who choose to vote 'Nay' on this concurrent resolution are "FREAKIN' IDIOTS!"). Or maybe it would be up to a regular lawmaker who thinks, what the hell, let's write a law so that people can agree on what it means, and see if it starts a trend.

As for taking the rules that ought to be clear once and for all, like who can be sued where and for how much, some 3%-getting-candidate should start talking about it. When I read an article about how some lawsuit was stalled because a lawyer complained that it was filed in the wrong district, I can barely keep reading because I get sidetracked thinking this is such a pathetic reflection on our legal system. If the rule about where the suit can be filed is unambiguous, why aren't the lawyers sanctioned for raising it as a false issue? If the rule really is ambiguous, why hasn't it been made clear a long time ago? If you support (or are) a politician or candidate who wants to ask these questions, the field is wide open.

Frequent Slashdot Contributor Bennett Haselton writes with his latest which starts "If I were writing laws such that I wanted everybody to agree on how to interpret them, I would use the software development life cycle: First, have lawmakers (analogous to "developers") write drafts of the laws. Then a second group (the "test case writers") would try to come up with situations that would be interpreted ambiguously under the law. Then a third group, the "testers", would read the proposed law, read the test case situations, and try to determine how the law should be applied to those cases, without communicating with the law writers, the test case writers, or each other. If there's too much disagreement in the third group on how the law should be applied, then it's too vague to be a proper law. The only laws which made it through this process would be ones such that when they were finally passed, most citizens (the "users") could agree on how to interpret them, in cases sufficiently similar to the ones the test case writers could come up with."

The irony is that this is how laws are supposed to work anyway. Laws have been struck down as being "void for vagueness" on the theory that people ought to be able to read them and know what they mean. But what does "vagueness" mean, if not that different people cannot independently agree on what a law means, and even the nine highest-ranked legal experts in the country are split 5-4 on how to read it? Some Supreme Courts, such as under William Howard Taft, tried to reach unanimous verdicts whenever possible on the theory that it would persuade people of the correctness of their decisions. But unanimity doesn't prove anything if it was achieved by agreeing to agree. Only if judges were put in separate rooms and independently agreed on how to apply a law to a given case, would that prove that the clarity came from the text of the law itself. Legislators ought to start at least trying to pass laws that would meet that test.

For some reason we seem to have just accepted the alternative as the status quo, where laws are passed that express a general sentiment ("no spam with a 'misleading' subject line") but nobody thinks that you could put two people in different rooms and expect them to agree on how the law would apply in most cases. The parties involved in the first court cases may have to spend ruinously large amounts of money to get to the point where judges rule on how to interpret the law, only to find that lower court judges disagree with each other. Meanwhile, anybody bringing a case now has to look up not just the law, but reference the lower court rulings that support their side, while their opponent of course references the other rulings. And even if a case does finally get appealed up to the Supreme Court, which issues a ruling binding on all lower courts, future researchers still can't find out the state of "the law" by looking up the statute; they have to look up the statute and read the Supreme Court ruling which states how the statute should be read (which may still be ambiguous as applied to their current situation). All of this costs a lot of money, which results in a huge waste of resources if both sides can afford it, and tilts the playing field if only one of them can.

I wonder if the reason this is so widely tolerated is because people have absorbed the notion that making and interpreting laws has to be hard, like brain surgery. But brain surgery is hard because the brain is naturally complex and not man-made. Lawyers also have to learn a lot of complex procedures, but not as complex as brain surgery; the major difficulty in a court case is guessing how the judge may interpret an ambiguous law (which is not "difficult" so much as a matter of being lucky), and knowing the unwritten rules that govern what actually happens (including which written rules are followed and which ones are ignored). And there's no reason in principle why this guesswork couldn't be reduced by having laws be more clear to begin with, and putting the "unwritten rules" down on paper.

I watched a scaled-down version of this play out in the first few cases that I brought against spammers in Small Claims court in Washington (although it involved only a waste of resources, not money, since Small Claims doesn't allow lawyers). You know the chorus, so all together now: Some judges said you could sue people out-of-state, and some said you couldn't. Some judges said you could sue for statutory damages in Small Claims, and some said you could only sue if you'd lost money. Some judges said that you could represent a corporation that you own, and some said that if you're a non-lawyer, you can't even represent your own corporation. Some said you could sue under a federal law in Small Claims, and some said you could only sue under a federal law in federal court. There are many more examples, and those were just the contradictions about Small Claims court procedure generally, not even counting the specific issues raised by the anti-spam law.

But as much as I've complained about that in the past, I don't blame the judges for that part. If the law is unclear, then judges have to come down one way or the other. (What I've complained about is when judges say that their interpretation is "the law", and that if you don't get it, you have to do more research. Lawyers know to take this kind of comment with a grain of salt, but a non-lawyer who takes it at face value, could end up wasting dozens of hours or hundreds of dollars in lawyer's fees before realizing that the judge's interpretation was not actually the law, and a different judge might have said the opposite. The judge should just be honest and say, "Well, I'm the ref and this is how I'm calling it. On another day with another judge you might get something else." I've had cases heard by some judges who basically said as much.) Often both interpretations are reasonable, but that's the point -- if both interpretations are reasonable, then there's something wrong with the way the law is written!

For example, there was the judge who said that you couldn't sue in Small Claims unless you'd lost money, because Small Claims jurisdiction is limited to "cases for the recovery of money only if the amount claimed does not exceed four thousand dollars". Most judges interpreted "recovery of money only" to mean that Small Claims courts can only award money damages, and not, for example, order someone to return property. Two judges, however, said that "recovery of money" implied that you could only literally "recover" money that you used to have and then lost (relying on the common English meaning of the word "recover"). In legal jargon, however, "recover" often simply means taking something from another party, and I won one such case on appeal after I submitted three Supreme Court rulings as evidence that used the phrase "recover statutory damages" or "recover punitive damages" in that sense, since statutory damages and punitive damages refer to money over and above what the plaintiff actually lost. (The original judges did not change their minds, but one of them later recused herself from any future spam cases filed by me, a move that I thought was questionable.)

Here's another example where there's no excuse for the law not to be completely clear, since it's specifying a number. To appeal a Small Claims ruling in Washington, you have to post a bond for "twice the amount of the judgment and costs, or twice the amount in controversy, whichever is greater". Presumably the "amount in controversy" means the amount that the plaintiff was suing for. But hang on -- in Small Claims you can't possibly be awarded more than you sued for. And that means the "the amount of the judgment and costs" will always be less than or equal to "the amount in controversy"! So why not just say "twice the amount in controversy"?

Or perhaps the "amount in controversy" only means the amount that the plaintiff and defendant disagree on. So if you sue someone for $2000, and the defendant agrees on the first $500 but not the remaining $1,500, and the judge's interpretation falls in between and she awards you $1,200, how much of a bond do you post if you want to appeal? $3,000, literally twice the "amount in controversy" between you and the defendant? $2,400, twice the amount of the judgment? $1,600, twice the difference between what you sought and what the judge awarded you? $4,000, twice the amount you sued for?

Beats me. When I first started out, I'd drive myself and my lawyer friends crazy asking, "Well, what's the rule? What's the answer?" Well, now I know: There is no rule, it just depends on what the judge says. Actually in this case, it depends on what the clerk says -- because it's the clerk at the courtroom's front office, not the judge, who handles the paperwork for an appeal and checks that you posted a bond for the right amount, so you have clerks effectively deciding how to interpret the law. (Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't seem correct under any interpretation of the law, since the "amount in controversy", however you define it, was greater than the "amount of the judgment" of $565.)

Sometimes, courts have settled on how to interpret a rule, but the interpretation is still different from what the rule actually says. The Small Claims form that you serve on defendants says, "You are further notified that, in case you do not appear, judgment will be rendered against you for the amount of the claim as stated herein below..." This is not true -- you can lose even if the other party does not appear (if the judge thinks, for example, that a spam's subject line was not misleading enough). I understand that having that line on the form serves a useful purpose by getting people to show up. But it's still wrong, and everybody knows that it's wrong, and it's on the form anyway.

A more serious example: When I first started suing spammers, if I thought they would show up in court, I'd sometimes try to go to the trouble of catching them in a lie, like the guy who showed up and claimed he didn't know anything about any spam, before I showed that I had recorded a phone call where he admitted that he could send out 5 million e-mails from Chinese servers for $500. (Yes, taping the call was legal -- follow the link for more info.) The written rule is that if you lie under oath in court, you can be arrested for committing a felony, even if the case is only a civil trial. But it turns out the unwritten rule is that perjury in a civil case is almost never prosecuted, and in most of my cases where I had proof that the defendant lied, the best that would happen was that I'd just win the civil case anyway, and sometimes not even that. It's not just Small Claims, either -- in one currently ongoing case, the defendant's lawyer just filed an answer to our complaint stating "Plaintiff subscribed to receive our e-mails". There's absolutely no way their attorney believes that to be true (with the spam in question being sent by mortgages spammers from forged domains, it's hard to see how anyone could "subscribe" to receive those mails even if they wanted to), but attorneys are required to submit such briefs with good faith in their veracity. So why isn't he on the hook for that? Because of the unwritten rule that courts just don't make a big deal out of it.

The point is that none of these issues is hard to grasp. The difficulty lies not in understanding the problems, but in the impossibility of guessing how a judge will interpret an ambiguous rule -- or, in the case of an unwritten rule which contradicts the written ones, the difficulty of knowing the unwritten rule if you don't have a lawyer's experience.

So, ambiguous laws could be divided into three categories:

1. Laws and rules where there ought to be no ambiguity at all -- for example, rules about who can be sued where, and for how much, and what size bond you have to post if you want to appeal. The fact that these laws are not clear enough to be universally agreed up on, is just silly. (Again, if judges have a conference or an e-mail discussion and decide on an interpretation, that doesn't mean the law as written was clear -- in fact, the fact that they had to have that discussion, proves that it wasn't.)

2. "Unwritten rules" that are generally agreed upon by lawyers and judges, but which are not actually written down or may even contradict the rules codified into law. Are trials and proceedings actually conducted according to written rules? The acid test for this would be: Hire a physics professor or somebody (so the legal establishment can't use the excuse of calling him a dumbass) and have him look at the history of events and documents in a typical civil case, from the vantage point of one side's lawyer. At each stage in the proceeding, before the professor sees what the lawyer actually did next, have the prof try to figure out what they would have done, based on the written rules. (The question is not whether the prof would have come up with the same strategy as the lawyer, but whether they would have done something that was procedurally correct at all.) If there are too many cases where the professor does something that technically conforms to the written rules, but where the lawyer says it would have been rejected by the court as procedurally invalid -- and if the same thing keeps happening with more and more smart non-lawyers trying the same experiment -- then this suggests that either the procedures need to be changed to conform with the written rules, or the written rules should conform with the procedures. (Because actually changing laws and rules is so hard, a better idea would be to publish an "annotated version" of the court rules which describes the procedures the way they are actually followed.)

3. Laws governing situations where ambiguity is hard to get rid of -- for example, the part of the Washington anti-spam law prohibiting "misleading subject lines". Here the question is whether a mushy category like that could ever be clearly defined so that people would independently agree on what it meant.

For the first two categories, bringing some clarity to those laws ought to be a no-brainer. Some candidate like Ron Paul or Dennis Kucinich who can say whatever they want because they're not going to win anyway, should make an issue out of it. They wouldn't have to fix the problem all at once. They could just promote it as a core American value that has been overlooked: Laws and court rules should be clear, and they can't be called clear unless people can independently agree on how to read them. The Left could get behind it because it would bring more equality between the rich and poor in the legal system. The Right could get behind it because they style themselves as the party backing judges who are "strict constructionists" that apply the law as literally as possible. (Although at the risk of alienating potential right-wing supporters, I don't think that "strict constructionism" would have much meaning until laws are clarified using something like this process. To say that this or that judge is a "strict constructionist" under our current laws, often sounds to me like a bunch of hooey, when the laws are too ambiguous for anybody to strictly construct anything out of them. Clarence Thomas, who is often held out as an example of a "strict constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court case that extended First Amendment rights to high school students, is "without basis in the Constitution". But there's nothing in the First Amendment to say that it's limited to individuals over 18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

The third category of ambiguous laws would be more interesting to try to fix. Would it be possible to come up with a standard for a "misleading" subject line that everyone could agree on? Probably not. But I think you could measure the ambiguity of a law by using testers and test case writers in the kind of procedure I suggested in the first paragraph, and you could get to the point where there was less disagreement among the testers on how to interpret the law as applied to typical subject lines.

If lawmakers knew in advance that their laws would be subject to that kind of test, they would write them more clearly the first time around. Why couldn't laws be written to include a list of hypothetical situations, for example, specifying which situations the law covered and which ones it didn't? For example, a list of sample spam e-mails to illustrate what the law means by a "misleading subject line". Of course, the trouble with picking examples to illustrate your own points, is that people tend to pick examples that fall squarely in the middle of the categories they're illustrating ("your refund has been processed" is misleading, "printer cartridges for sale" is not). If the lawmaker included illustrative cases like this that were too-obvious examples of what they were describing, then the "test case writers" would be able to shoot down the proposed law by picking hypothetical cases that were closer to the borderline (so that in the third phase, when the testers tried to apply the law to those borderline cases, different testers would classify the borderline cases differently, and the law would fail the vagueness test). To mitigate this, the author of the law should pick illustrative examples that would be at or near the borderline, thus providing clearer guidance as to where the boundary lies between a misleading and non-misleading subject line. Which is what they should be doing in the first place.

Now, there are some problems that even the double-blind test for unambiguous laws, would not solve:

• Judges could be systematically biased against a particular law (and even proud of it), in which case they can make things difficult for you even if the law is unambiguous. Or, they might be so biased in favor of a law that they carry it further than the clearly proscribed boundaries, as in the case of a judge who upheld the conviction of a man for sending sexually explicit instant messages, even though the law in question was clearly limited to e-mails.

• Judges may not take cases seriously from non-lawyers. In one series of cases that I brought, I filed written motions with two of the pages stuck together by a tiny thread of paper, so that after the judge ruled, I could examine the motions in the court file to see if the thread was still intact. I found that about half the time, the judge had rejected the motion without reading it.

  This is a hard obstacle to overcome, especially after the Commission on Judicial Conduct ruled that it was not a violation of the Code of Conduct for a judge to reject a motion without even turning the pages. It wouldn't do any good to show that judges ruled against pro se (self-representing) plaintiffs more often than against lawyers, because judges could claim it was because pro se plaintiffs just made more errors (although it would be hard to use this excuse to explain why judges rejected briefs without reading them at all). One way to test this would be to have judges conduct the trials "blind" so that they would see the briefs presented by each side, but they wouldn't know whether the brief was submitted by a lawyer or a non-lawyer representing themselves. However, this would require difficult changes to the way legal procedures are conducted

  A simpler way might be: Once the "unwritten rule book" has been authored, such that your typical non-lawyer in the above experiment knows what kind of briefs to submit at each stage of a trial, have a legally trained third party look at briefs written by the lawyer and briefs written by an average lawyer, and see if they can tell which is which. If the third party can't tell, then that indicates the non-lawyer is writing the briefs almost indistinguishably from a lawyer -- and then if a judge in a real trial keeps hammering them for "procedural violations", it would be because of the judge's knowledge that the party was a non-lawyer, and not because of what the party actually did. On the other hand, if the judge ruled against the person in the same proportion that that person's briefs were being flagged as "obviously written by a non-lawyer" in the double-blind experiment, then that would indicate the judge was being fair.

• Even if a law is perfectly unambiguous, judges may disagree on whether it is constitutional under the First Amendment, for example. Making these situations unambiguous would involve tampering with the First Amendment, probably not a good idea in this or any other political climate.

• It wouldn't do anything about the corrupt process by which laws are often passed in the first place, in exchange for campaign contributions. (As one scholarly analysis says, "It's exactly like buying a hamburger, except that under our laws, everybody must pretend that nobody is buying anything, and nobody is selling anything.")

But notwithstanding these problems, I think any law that could pass the double-blind interpretation test, would be an improvement over one that can't. First, because it appeals to our sense of fairness to have rules clearly laid out. Second, if we really followed the void for vagueness doctrine, laws would be able to pass that test anyway. Third, economists have documented that there are economic benefits to having stability and predictability in the law. Economist Thomas Sowell wrote in Race and Culture that in some historical periods, even when groups given second-class status under the law (such as Jews in Eastern Europe or the Chinese in Southeast Asia), they were able to prosper better than they did elsewhere, as long as their basic property rights were protected, and the laws, even the discriminatory ones, were consistent and predictable!

This isn't something that would require a wholesale change in a state's constitution or lawmaking procedure. Any legislator could voluntarily try this process out to see if it resulted in laws that were easier for constituents to understand, and had a greater chance of being interpreted by judges to give the result that the legislator wanted. Imagine having an anti-spam law, for example, which said:

Misleading subject lines are prohibited. This includes not only subject lines which contain false advertising, such as:

• 'lotion that cures baldness'
• 'legal copies of Windows for $20'

but also subject line that mislead the user into wasting time on a message. This is because a large part of the harm done by spam is not due to the falsity of the advertisements, but due to the time that users waste on each message before realizing that it's an advertisement. As such, misleading subject lines include those that mislead the user into thinking that the message is from a personal acquaintance, such as:

• 'Congratulations!'
• 'Touching base'

or a subject that misleads the user into thinking that the message is a 1-on-1 communication, such as:

• 'Re: Question about your website'
• 'Shareholder request'
• 'urgent cancer call'
• 'Reminder: link to your website http://slashdot.org/'

[Except for the first group, all of these are subject lines from real spams that I received, which Small Claims judges ruled were not misleading. Giving them the benefit of the doubt, I think they are applying the standard of whether a spam constitutes fraudulent or deceptive advertising, not whether it tricks you into opening it. But the original author of the anti-spam law, when talking about other proposed measures, stated that the point of anti-spam laws is that "Computer users should be able to know instantly what's spam and what isn't."]

If you were reading a series of legal statutes and came across one written like this, it would be jarring, like reading a Wikipedia article about cell division and then getting to the part where someone wrote "And Bennett is gaytarded". But that's because we're accustomed to laws being ambiguous, not spelling out how they should be interpreted using reasons and examples. I would like to see some lawmaker, somewhere, insert a law into their state's legal code that looked and sounded something like this. The idea is so radical that maybe it could only be done by an eccentric, like the congressman who had Elmo testify before a Congressional committee before he was arrested for bribery (the Congressman, not Elmo), or the guy who passed a House Resolution commending Napoleon Dynamite ("any members who choose to vote 'Nay' on this concurrent resolution are "FREAKIN' IDIOTS!"). Or maybe it would be up to a regular lawmaker who thinks, what the hell, let's write a law so that people can agree on what it means, and see if it starts a trend.

As for taking the rules that ought to be clear once and for all, like who can be sued where and for how much, some 3%-getting-candidate should start talking about it. When I read an article about how some lawsuit was stalled because a lawyer complained that it was filed in the wrong district, I can barely keep reading because I get sidetracked thinking this is such a pathetic reflection on our legal system. If the rule about where the suit can be filed is unambiguous, why aren't the lawyers sanctioned for raising it as a false issue? If the rule really is ambiguous, why hasn't it been made clear a long time ago? If you support (or are) a politician or candidate who wants to ask these questions, the field is wide open.

Frequent Slashdot Contributor Bennett Haselton writes with his latest which starts "If I were writing laws such that I wanted everybody to agree on how to interpret them, I would use the software development life cycle: First, have lawmakers (analogous to "developers") write drafts of the laws. Then a second group (the "test case writers") would try to come up with situations that would be interpreted ambiguously under the law. Then a third group, the "testers", would read the proposed law, read the test case situations, and try to determine how the law should be applied to those cases, without communicating with the law writers, the test case writers, or each other. If there's too much disagreement in the third group on how the law should be applied, then it's too vague to be a proper law. The only laws which made it through this process would be ones such that when they were finally passed, most citizens (the "users") could agree on how to interpret them, in cases sufficiently similar to the ones the test case writers could come up with."

The irony is that this is how laws are supposed to work anyway. Laws have been struck down as being "void for vagueness" on the theory that people ought to be able to read them and know what they mean. But what does "vagueness" mean, if not that different people cannot independently agree on what a law means, and even the nine highest-ranked legal experts in the country are split 5-4 on how to read it? Some Supreme Courts, such as under William Howard Taft, tried to reach unanimous verdicts whenever possible on the theory that it would persuade people of the correctness of their decisions. But unanimity doesn't prove anything if it was achieved by agreeing to agree. Only if judges were put in separate rooms and independently agreed on how to apply a law to a given case, would that prove that the clarity came from the text of the law itself. Legislators ought to start at least trying to pass laws that would meet that test.

For some reason we seem to have just accepted the alternative as the status quo, where laws are passed that express a general sentiment ("no spam with a 'misleading' subject line") but nobody thinks that you could put two people in different rooms and expect them to agree on how the law would apply in most cases. The parties involved in the first court cases may have to spend ruinously large amounts of money to get to the point where judges rule on how to interpret the law, only to find that lower court judges disagree with each other. Meanwhile, anybody bringing a case now has to look up not just the law, but reference the lower court rulings that support their side, while their opponent of course references the other rulings. And even if a case does finally get appealed up to the Supreme Court, which issues a ruling binding on all lower courts, future researchers still can't find out the state of "the law" by looking up the statute; they have to look up the statute and read the Supreme Court ruling which states how the statute should be read (which may still be ambiguous as applied to their current situation). All of this costs a lot of money, which results in a huge waste of resources if both sides can afford it, and tilts the playing field if only one of them can.

I wonder if the reason this is so widely tolerated is because people have absorbed the notion that making and interpreting laws has to be hard, like brain surgery. But brain surgery is hard because the brain is naturally complex and not man-made. Lawyers also have to learn a lot of complex procedures, but not as complex as brain surgery; the major difficulty in a court case is guessing how the judge may interpret an ambiguous law (which is not "difficult" so much as a matter of being lucky), and knowing the unwritten rules that govern what actually happens (including which written rules are followed and which ones are ignored). And there's no reason in principle why this guesswork couldn't be reduced by having laws be more clear to begin with, and putting the "unwritten rules" down on paper.

I watched a scaled-down version of this play out in the first few cases that I brought against spammers in Small Claims court in Washington (although it involved only a waste of resources, not money, since Small Claims doesn't allow lawyers). You know the chorus, so all together now: Some judges said you could sue people out-of-state, and some said you couldn't. Some judges said you could sue for statutory damages in Small Claims, and some said you could only sue if you'd lost money. Some judges said that you could represent a corporation that you own, and some said that if you're a non-lawyer, you can't even represent your own corporation. Some said you could sue under a federal law in Small Claims, and some said you could only sue under a federal law in federal court. There are many more examples, and those were just the contradictions about Small Claims court procedure generally, not even counting the specific issues raised by the anti-spam law.

But as much as I've complained about that in the past, I don't blame the judges for that part. If the law is unclear, then judges have to come down one way or the other. (What I've complained about is when judges say that their interpretation is "the law", and that if you don't get it, you have to do more research. Lawyers know to take this kind of comment with a grain of salt, but a non-lawyer who takes it at face value, could end up wasting dozens of hours or hundreds of dollars in lawyer's fees before realizing that the judge's interpretation was not actually the law, and a different judge might have said the opposite. The judge should just be honest and say, "Well, I'm the ref and this is how I'm calling it. On another day with another judge you might get something else." I've had cases heard by some judges who basically said as much.) Often both interpretations are reasonable, but that's the point -- if both interpretations are reasonable, then there's something wrong with the way the law is written!

For example, there was the judge who said that you couldn't sue in Small Claims unless you'd lost money, because Small Claims jurisdiction is limited to "cases for the recovery of money only if the amount claimed does not exceed four thousand dollars". Most judges interpreted "recovery of money only" to mean that Small Claims courts can only award money damages, and not, for example, order someone to return property. Two judges, however, said that "recovery of money" implied that you could only literally "recover" money that you used to have and then lost (relying on the common English meaning of the word "recover"). In legal jargon, however, "recover" often simply means taking something from another party, and I won one such case on appeal after I submitted three Supreme Court rulings as evidence that used the phrase "recover statutory damages" or "recover punitive damages" in that sense, since statutory damages and punitive damages refer to money over and above what the plaintiff actually lost. (The original judges did not change their minds, but one of them later recused herself from any future spam cases filed by me, a move that I thought was questionable.)

Here's another example where there's no excuse for the law not to be completely clear, since it's specifying a number. To appeal a Small Claims ruling in Washington, you have to post a bond for "twice the amount of the judgment and costs, or twice the amount in controversy, whichever is greater". Presumably the "amount in controversy" means the amount that the plaintiff was suing for. But hang on -- in Small Claims you can't possibly be awarded more than you sued for. And that means the "the amount of the judgment and costs" will always be less than or equal to "the amount in controversy"! So why not just say "twice the amount in controversy"?

Or perhaps the "amount in controversy" only means the amount that the plaintiff and defendant disagree on. So if you sue someone for $2000, and the defendant agrees on the first $500 but not the remaining $1,500, and the judge's interpretation falls in between and she awards you $1,200, how much of a bond do you post if you want to appeal? $3,000, literally twice the "amount in controversy" between you and the defendant? $2,400, twice the amount of the judgment? $1,600, twice the difference between what you sought and what the judge awarded you? $4,000, twice the amount you sued for?

Beats me. When I first started out, I'd drive myself and my lawyer friends crazy asking, "Well, what's the rule? What's the answer?" Well, now I know: There is no rule, it just depends on what the judge says. Actually in this case, it depends on what the clerk says -- because it's the clerk at the courtroom's front office, not the judge, who handles the paperwork for an appeal and checks that you posted a bond for the right amount, so you have clerks effectively deciding how to interpret the law. (Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't seem correct under any interpretation of the law, since the "amount in controversy", however you define it, was greater than the "amount of the judgment" of $565.)

Sometimes, courts have settled on how to interpret a rule, but the interpretation is still different from what the rule actually says. The Small Claims form that you serve on defendants says, "You are further notified that, in case you do not appear, judgment will be rendered against you for the amount of the claim as stated herein below..." This is not true -- you can lose even if the other party does not appear (if the judge thinks, for example, that a spam's subject line was not misleading enough). I understand that having that line on the form serves a useful purpose by getting people to show up. But it's still wrong, and everybody knows that it's wrong, and it's on the form anyway.

A more serious example: When I first started suing spammers, if I thought they would show up in court, I'd sometimes try to go to the trouble of catching them in a lie, like the guy who showed up and claimed he didn't know anything about any spam, before I showed that I had recorded a phone call where he admitted that he could send out 5 million e-mails from Chinese servers for $500. (Yes, taping the call was legal -- follow the link for more info.) The written rule is that if you lie under oath in court, you can be arrested for committing a felony, even if the case is only a civil trial. But it turns out the unwritten rule is that perjury in a civil case is almost never prosecuted, and in most of my cases where I had proof that the defendant lied, the best that would happen was that I'd just win the civil case anyway, and sometimes not even that. It's not just Small Claims, either -- in one currently ongoing case, the defendant's lawyer just filed an answer to our complaint stating "Plaintiff subscribed to receive our e-mails". There's absolutely no way their attorney believes that to be true (with the spam in question being sent by mortgages spammers from forged domains, it's hard to see how anyone could "subscribe" to receive those mails even if they wanted to), but attorneys are required to submit such briefs with good faith in their veracity. So why isn't he on the hook for that? Because of the unwritten rule that courts just don't make a big deal out of it.

The point is that none of these issues is hard to grasp. The difficulty lies not in understanding the problems, but in the impossibility of guessing how a judge will interpret an ambiguous rule -- or, in the case of an unwritten rule which contradicts the written ones, the difficulty of knowing the unwritten rule if you don't have a lawyer's experience.

So, ambiguous laws could be divided into three categories:

1. Laws and rules where there ought to be no ambiguity at all -- for example, rules about who can be sued where, and for how much, and what size bond you have to post if you want to appeal. The fact that these laws are not clear enough to be universally agreed up on, is just silly. (Again, if judges have a conference or an e-mail discussion and decide on an interpretation, that doesn't mean the law as written was clear -- in fact, the fact that they had to have that discussion, proves that it wasn't.)

2. "Unwritten rules" that are generally agreed upon by lawyers and judges, but which are not actually written down or may even contradict the rules codified into law. Are trials and proceedings actually conducted according to written rules? The acid test for this would be: Hire a physics professor or somebody (so the legal establishment can't use the excuse of calling him a dumbass) and have him look at the history of events and documents in a typical civil case, from the vantage point of one side's lawyer. At each stage in the proceeding, before the professor sees what the lawyer actually did next, have the prof try to figure out what they would have done, based on the written rules. (The question is not whether the prof would have come up with the same strategy as the lawyer, but whether they would have done something that was procedurally correct at all.) If there are too many cases where the professor does something that technically conforms to the written rules, but where the lawyer says it would have been rejected by the court as procedurally invalid -- and if the same thing keeps happening with more and more smart non-lawyers trying the same experiment -- then this suggests that either the procedures need to be changed to conform with the written rules, or the written rules should conform with the procedures. (Because actually changing laws and rules is so hard, a better idea would be to publish an "annotated version" of the court rules which describes the procedures the way they are actually followed.)

3. Laws governing situations where ambiguity is hard to get rid of -- for example, the part of the Washington anti-spam law prohibiting "misleading subject lines". Here the question is whether a mushy category like that could ever be clearly defined so that people would independently agree on what it meant.

For the first two categories, bringing some clarity to those laws ought to be a no-brainer. Some candidate like Ron Paul or Dennis Kucinich who can say whatever they want because they're not going to win anyway, should make an issue out of it. They wouldn't have to fix the problem all at once. They could just promote it as a core American value that has been overlooked: Laws and court rules should be clear, and they can't be called clear unless people can independently agree on how to read them. The Left could get behind it because it would bring more equality between the rich and poor in the legal system. The Right could get behind it because they style themselves as the party backing judges who are "strict constructionists" that apply the law as literally as possible. (Although at the risk of alienating potential right-wing supporters, I don't think that "strict constructionism" would have much meaning until laws are clarified using something like this process. To say that this or that judge is a "strict constructionist" under our current laws, often sounds to me like a bunch of hooey, when the laws are too ambiguous for anybody to strictly construct anything out of them. Clarence Thomas, who is often held out as an example of a "strict constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court case that extended First Amendment rights to high school students, is "without basis in the Constitution". But there's nothing in the First Amendment to say that it's limited to individuals over 18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

The third category of ambiguous laws would be more interesting to try to fix. Would it be possible to come up with a standard for a "misleading" subject line that everyone could agree on? Probably not. But I think you could measure the ambiguity of a law by using testers and test case writers in the kind of procedure I suggested in the first paragraph, and you could get to the point where there was less disagreement among the testers on how to interpret the law as applied to typical subject lines.

If lawmakers knew in advance that their laws would be subject to that kind of test, they would write them more clearly the first time around. Why couldn't laws be written to include a list of hypothetical situations, for example, specifying which situations the law covered and which ones it didn't? For example, a list of sample spam e-mails to illustrate what the law means by a "misleading subject line". Of course, the trouble with picking examples to illustrate your own points, is that people tend to pick examples that fall squarely in the middle of the categories they're illustrating ("your refund has been processed" is misleading, "printer cartridges for sale" is not). If the lawmaker included illustrative cases like this that were too-obvious examples of what they were describing, then the "test case writers" would be able to shoot down the proposed law by picking hypothetical cases that were closer to the borderline (so that in the third phase, when the testers tried to apply the law to those borderline cases, different testers would classify the borderline cases differently, and the law would fail the vagueness test). To mitigate this, the author of the law should pick illustrative examples that would be at or near the borderline, thus providing clearer guidance as to where the boundary lies between a misleading and non-misleading subject line. Which is what they should be doing in the first place.

Now, there are some problems that even the double-blind test for unambiguous laws, would not solve:

• Judges could be systematically biased against a particular law (and even proud of it), in which case they can make things difficult for you even if the law is unambiguous. Or, they might be so biased in favor of a law that they carry it further than the clearly proscribed boundaries, as in the case of a judge who upheld the conviction of a man for sending sexually explicit instant messages, even though the law in question was clearly limited to e-mails.

• Judges may not take cases seriously from non-lawyers. In one series of cases that I brought, I filed written motions with two of the pages stuck together by a tiny thread of paper, so that after the judge ruled, I could examine the motions in the court file to see if the thread was still intact. I found that about half the time, the judge had rejected the motion without reading it.

  This is a hard obstacle to overcome, especially after the Commission on Judicial Conduct ruled that it was not a violation of the Code of Conduct for a judge to reject a motion without even turning the pages. It wouldn't do any good to show that judges ruled against pro se (self-representing) plaintiffs more often than against lawyers, because judges could claim it was because pro se plaintiffs just made more errors (although it would be hard to use this excuse to explain why judges rejected briefs without reading them at all). One way to test this would be to have judges conduct the trials "blind" so that they would see the briefs presented by each side, but they wouldn't know whether the brief was submitted by a lawyer or a non-lawyer representing themselves. However, this would require difficult changes to the way legal procedures are conducted

  A simpler way might be: Once the "unwritten rule book" has been authored, such that your typical non-lawyer in the above experiment knows what kind of briefs to submit at each stage of a trial, have a legally trained third party look at briefs written by the lawyer and briefs written by an average lawyer, and see if they can tell which is which. If the third party can't tell, then that indicates the non-lawyer is writing the briefs almost indistinguishably from a lawyer -- and then if a judge in a real trial keeps hammering them for "procedural violations", it would be because of the judge's knowledge that the party was a non-lawyer, and not because of what the party actually did. On the other hand, if the judge ruled against the person in the same proportion that that person's briefs were being flagged as "obviously written by a non-lawyer" in the double-blind experiment, then that would indicate the judge was being fair.

• Even if a law is perfectly unambiguous, judges may disagree on whether it is constitutional under the First Amendment, for example. Making these situations unambiguous would involve tampering with the First Amendment, probably not a good idea in this or any other political climate.

• It wouldn't do anything about the corrupt process by which laws are often passed in the first place, in exchange for campaign contributions. (As one scholarly analysis says, "It's exactly like buying a hamburger, except that under our laws, everybody must pretend that nobody is buying anything, and nobody is selling anything.")

But notwithstanding these problems, I think any law that could pass the double-blind interpretation test, would be an improvement over one that can't. First, because it appeals to our sense of fairness to have rules clearly laid out. Second, if we really followed the void for vagueness doctrine, laws would be able to pass that test anyway. Third, economists have documented that there are economic benefits to having stability and predictability in the law. Economist Thomas Sowell wrote in Race and Culture that in some historical periods, even when groups given second-class status under the law (such as Jews in Eastern Europe or the Chinese in Southeast Asia), they were able to prosper better than they did elsewhere, as long as their basic property rights were protected, and the laws, even the discriminatory ones, were consistent and predictable!

This isn't something that would require a wholesale change in a state's constitution or lawmaking procedure. Any legislator could voluntarily try this process out to see if it resulted in laws that were easier for constituents to understand, and had a greater chance of being interpreted by judges to give the result that the legislator wanted. Imagine having an anti-spam law, for example, which said:

Misleading subject lines are prohibited. This includes not only subject lines which contain false advertising, such as:

• 'lotion that cures baldness'
• 'legal copies of Windows for $20'

but also subject line that mislead the user into wasting time on a message. This is because a large part of the harm done by spam is not due to the falsity of the advertisements, but due to the time that users waste on each message before realizing that it's an advertisement. As such, misleading subject lines include those that mislead the user into thinking that the message is from a personal acquaintance, such as:

• 'Congratulations!'
• 'Touching base'

or a subject that misleads the user into thinking that the message is a 1-on-1 communication, such as:

• 'Re: Question about your website'
• 'Shareholder request'
• 'urgent cancer call'
• 'Reminder: link to your website http://slashdot.org/'

[Except for the first group, all of these are subject lines from real spams that I received, which Small Claims judges ruled were not misleading. Giving them the benefit of the doubt, I think they are applying the standard of whether a spam constitutes fraudulent or deceptive advertising, not whether it tricks you into opening it. But the original author of the anti-spam law, when talking about other proposed measures, stated that the point of anti-spam laws is that "Computer users should be able to know instantly what's spam and what isn't."]

If you were reading a series of legal statutes and came across one written like this, it would be jarring, like reading a Wikipedia article about cell division and then getting to the part where someone wrote "And Bennett is gaytarded". But that's because we're accustomed to laws being ambiguous, not spelling out how they should be interpreted using reasons and examples. I would like to see some lawmaker, somewhere, insert a law into their state's legal code that looked and sounded something like this. The idea is so radical that maybe it could only be done by an eccentric, like the congressman who had Elmo testify before a Congressional committee before he was arrested for bribery (the Congressman, not Elmo), or the guy who passed a House Resolution commending Napoleon Dynamite ("any members who choose to vote 'Nay' on this concurrent resolution are "FREAKIN' IDIOTS!"). Or maybe it would be up to a regular lawmaker who thinks, what the hell, let's write a law so that people can agree on what it means, and see if it starts a trend.

As for taking the rules that ought to be clear once and for all, like who can be sued where and for how much, some 3%-getting-candidate should start talking about it. When I read an article about how some lawsuit was stalled because a lawyer complained that it was filed in the wrong district, I can barely keep reading because I get sidetracked thinking this is such a pathetic reflection on our legal system. If the rule about where the suit can be filed is unambiguous, why aren't the lawyers sanctioned for raising it as a false issue? If the rule really is ambiguous, why hasn't it been made clear a long time ago? If you support (or are) a politician or candidate who wants to ask these questions, the field is wide open.

Bennett Haselton wrote in with this weeks amusing and shocking story of high finance, judicial discretion, and oh so much more... he writes "People still ask me if I make enough money suing spammers in Small Claims court to make it worthwhile. I say: What about the entertainment value? Recently I received an e-mail with the subject line: 'Reminder: Link exchange with your site http://slashdot.org' Finally, I thought, someone else who agrees that I'm carrying the site's entire success on my shoulders. I even hurried off to check the registration of the slashdot.org domain to see if they had made the transfer official in honor of my contributions, but apparently the domain is still being squatted by some outfit calling itself "SourceForge"." I'm shocked that a legitimate businessman would make such an error. Read on to see what Bennett does about it.

So I returned to the e-mail, which began, "Dear Webmaster". Scrolling through it, I found the part that I was looking for (I munged the sender's URL slightly, to avoid crashing the poor guy's server from all the traffic I'm sure he's already getting):

As you know, reciprocal linking benefits both of us by raising our search rankings and generating more traffic to both of our sites. Please post a link to my site as follows:

Title: Work At Home Business Opportunities | Online Career Training
URL: http://www.theeashblahblah.com/
Description: Your Source, and Resource for starting a Home Business, or Growing the One You're In.

Of course I am always interested in growing the business that I'm in, which is why I served him with papers a few days later under RCW 19.190, the Washington anti-spam law which prohibits e-mails with a "false or misleading subject line".

OK, technically at this point suing spammers in Small Claims is really more of a hobby. I still think that the real future of spammer-suing is in federal court, if you can amass enough damages against a particular company to reach the threshold of $75,000 to bring a federal lawsuit. The idea is not to go after the bottom-feeders who are sending the actual spams from their Mom's basement, but to follow the money and see who is ultimately buying the leads. You can respond to mortgage spams by entering a drop-box phone number and a made-up name, waiting to see who calls you, and then telling them that the person who sold them that lead is generating them illegally and that they shouldn't buy leads from them any more. Next I'll probably try responding to some ads for pills or other shady products by using a temporary one-time-use credit card number that's only authorized up to the amount of the purchase, to see which companies are doing the sales on the back end. (The checkout forms for those pill-hawking pages rarely say the name of the company that will end up on your statement, but the charge on your card has to be from someone.) The only types of spam I can think of where "following the money" wouldn't work, would be pump-and-dump stock spams -- in that case, the beneficiary could be anyone holding stock in the company. The SEC can freeze trading in stocks that are promoted in pump-and-dump but it's still no guarantee of catching the guilty party -- even someone who buys a lot of the company might just be an "innocent" third party who knows it's a scam but hopes to cash in on the price spike (although FAQs suggest that this strategy doesn't work). But for other types of spam, it's already been well documented how you can track it to the financiers without even trying to identify the actual person who pressed "Send".

Of course there's another reason why you'd rather be in federal court. Small Claims anti-spammer cases may not shed a lot of light on the economics behind spam, but they are instructive for what to expect if you ever appear before a District Court judge for any other reason. In this trial, heard by Judge Judith Eiler on November 5, 2007, the defendant telephoned in to the court hearing and said several times that this was a "personal e-mail from me to him" and should be exempt from the anti-spam laws. I said that I didn't think an e-mail with the subject "Link exchange with your site http://slashdot.org" could be considered "personal" since nobody who knew me would think that was my website, and in any case, personal e-mails tend not to start with "Dear Webmaster". But Judge Eiler ruled that this was a personal e-mail after all:

"Um, spam, these are anti-spam laws, which imply that they are mail just sent out in huge bulks, which would be the antithesis of a personal e-mail. And here he puts his name, in fact this is the person that you directly sued rather than somebody that's in a corporation or a company. The court does think that there's some indication that this is a personal-type e-mail. While it may have gone out to a number of people, it doesn't have quite the earmarks."
mp3 here

Below is a copy of the e-mail that the judge was holding when she ruled that it "didn't have the earmarks" of a bulk e-mail:

To: bennett@peacefire.org Subject: Reminder: Link exchange with your site http://slashdot.org X-PHP-Script: www.theeashblahblah.com/linkmachine/auto.php for 87.102.22.100 Date: Wed, 12 Sep 2007 09:34:26 -0400 From: Roderick Eash Reply-to: reash@tconl.com Message-ID: X-Priority: 3 X-Mailer: PHPMailer [version 1.72] Errors-To: reash@tconl.com MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="b1_b43cabef83c9f9123db7a78ef9a73362" Dear Webmaster, My name is Roderick Eash, and I run the web site Work At Home Business Opportunities | Online Career Training: http://www.theeashblahblah.com/ The other day I wrote you to let you know I'm very interested in exchanging links. I'm sending this reminder in case you didn't receive my first letter. I've gone ahead and posted a link to your site, on this page: http://www.theeashblahblah.com/linkmachine/resources/resources_home_based_business_41.html As you know, reciprocal linking benefits both of us by raising our search rankings and generating more traffic to both of our sites. Please post a link to my site as follows: Title: Work At Home Business Opportunities | Online Career Training URL: http://www.theeashblahblah.com/ Description: Your Source, and Resource for starting a Home Business, or Growing the One You're In. Once you've posted the link, let me know the URL of the page that it's on, by entering it in this form: http://www.theeashblahblah.com/linkmachine/resources/link_exchange.php?ua=_ua9&site_index=MTg4MTgwMjc%3D You can also use that form to make changes to the text of the link to your site, if you'd like. Thank you very much, Roderick Eash

Every time I write about a spam case, I swear it's the last time. I wonder if judges read that and say to each other, "I'll bet we can get him to do it again." With this ruling, if the subject line "Link exchange with your site http://slashdot.org" is not "false or misleading", does that mean I can claim slashdot.org as my site after all?

So I don't think that suing spammers in Small Claims will make much difference in the long run. But the odds are that you might have a case come before a Distict Court judge at some point in your life. Consider that the same type of judge who thought the message above was a "personal e-mail", might someday be deciding whether you're responsible for $10,000 in damage to someone's car, or whether there is proof beyond a reasonable doubt that you were guilty of rape, or whether you get to keep custody of your child. There's no joke here, just something I thought you should keep in mind.

So I'm hardly a victim, but it could have been worse; I could have gotten a spam -- excuse me, a personal e-mail -- with a subject like "Your g1rl says you n3ed a b1gger m3mber". I would have been pissed if the judge had ruled that subject line was not misleading.

Frequent Slashdot Contributor Bennett Haselton is back with a story about fighting censorship with spam. He starts "Is it OK to send unsolicited e-mail to users in China, Iran, and other censored countries, telling them about new proxy sites for getting around Internet censorship? I hasten to add that I have NOT done this, am not planning on doing it and would not have any idea how to go about it anyway. Between the various companies that offer proxy services, I don't know of anyone who is doing it (no, not even people who swore me to secrecy about it). But I think the question involves ethical issues that would not apply to most discussions of spam." Hit that big link below to read the rest of his words.

Lest there be any doubt, I hate spam, getting about 10,000 of them a week with no way to filter them without blocking at least some of my important mail as well; I've tried suing some spammers mostly without success, and humbly proposed one anti-spam algorithm which caught on like wildfire, if the wildfire were spreading through a... rainforest, in the... rain. But I am not against spam a priori (Latin for "unless they are telling me I need to add extra inches"), I'm against spam because that follows from other principles, and in some situations there is some question as to whether those principles still apply. (It is not as simplistic as saying that it is OK to spam "for the greater good". Stay with me!)

Getting back to basics: Why is spam a problem? Because the cost of receiving a message, however minor, is more than the benefits, which are usually microscopic considering the probability that a typical recipient would buy what they're selling. Take a small cost that exceeds a small benefit, multiply by millions of messages per day, and the cost exceeds the benefit by about $70 billion per year.

But, just as a thought experiment, could you conceive of a kind of spam that would not be a nuisance? Suppose you sent an e-mail to millions of people offering them free $20 bills. And you actually followed through and sent the money to anybody who claimed the offer. Then the conventional argument against spam no longer applies, because the e-mails are benefitting people more than they're costing them. It's hard to think of any real-life examples, but if you had sent out mass e-mails telling people about the refund checks for anybody who had bought a CD (it was real, I got my $13.86 in the mail in 2004), I probably wouldn't have come to your house to egg your windows.

"Aha!" some spammer is thinking, "my product does benefit people more than the e-mail costs them! I can help them refinance their homes at a low rate, to take out money they can multiply many times with my new stock tip, and then spend at my friend Tiffanee's new site to help pay her way towards her physics degree!" Wait. Let's just say that you're offering some miracle product at a low price, conferring some huge benefit on each person who buys it. The only costs of spreading your bounty to the world, are whatever advertising costs are incurred in getting the word out. But if your product is really the miracle you say it is, then the benefits to people (even after subtracting the price they paid for it), exceed the costs of the advertising.

Then you have several choices. You can spam to advertise the product. In this case, the costs of the advertising are passed on to unwilling recipients. But if the benefits your product confers are greater than the cost of getting people's attention, then you've still arguably done more good than harm to the world, even if the net effect on some individual people was harmful (on annoyed recipients who didn't end up buying your product). By forcing the advertising costs on other people, you've saved that much more money; you can pocket that benefit yourself, or if you pass on the savings in the form of reduced prices (which you may have to do in a competitive market anyway), you've basically transferred that much benefit by stealing it from the spam recipients and distributing it to your customers. So the main benefit to the world was the wonderfulness of your product, and on top of that, you stole some small benefit from a large number of people and redistributed it to other people, which has no positive or negative net effect.

But, because the benefits of the product outweigh the costs of the advertising, that means in a mostly-free country where your product is legal, you can also buy advertisements to get people's attention, pass the costs on to the customers in the form of slightly higher prices, and have benefits for them left over (otherwise they wouldn't still buy what you're selling). The customers still get the major benefit, the benefit of owning your awesome product. What's missing in this case is the small extra benefit that they were getting before, from you stealing from all the spam recipients and passing the savings on to them.

So for that reason, spammers are prohibited from saying "The benefits of my products exceed the costs of people's attention span to read about it, so it's OK for me to spam", by the reply: "If the benefits really exceed the costs, then you can buy advertising to tell people about it like everyone else."

But now the big question: Would that argument still hold if you wanted to advertise proxies to people in China and Iran?

It doesn't seem that you could use conventional channels to advertise proxies to Chinese and Iranian users. If you bought ads on Google AdSense or a similar ad-serving network, China might threaten to block all ads served from that network unless they started screening out ads for anti-censorship services (especially in the case of Google, which seems to comply with most Chinese self-censorship demands). Then there's the question of how to charge Chinese and Iranian users even small amounts for the services. It would not be a good idea to have the charges show up on their credit cards issued by Chinese banks. Paying small amounts with PayPal would be a little bit better since the charge would simply show up from "PayPal", without revealing the recipient. And since all traffic to the PayPal site is encrypted over SSL, Chinese censors wouldn't be able to detect or block users who were paying to circumvent the Great Firewall, unless they blocked all traffic to the PayPal site. But could PayPal be leaned on to provide the identities of Chinese users who were paying for circumvention services, under threat of having their site blocked otherwise? And the biggest impediment of all would be that once you start charging even $1 for a service, there's a huge dropoff in people willing to sign up, even if they would have to spend much more than $1 worth of effort to find a free alternative somewhere else.

So, if circumvention services provide enough benefit to Chinese users, maybe spamming proxy sites would do more good than harm, and if the lack of freedom in the country means that you could not sell or advertise the services to Chinese users by conventional means, maybe that means spamming the proxy locations would be the only way to do this.

Reading over this, I just realized that if you also believed that pot was beneficial to society, this could also justify spamming to advertise pot. I expect we'll all start getting marijuana spam just as soon as the pothead reading this gets around to it... on, like Tuesday... maybe. Just make sure they don't really get their act together enough to get pot legalized, because if that happens, they lose their rationale for spamming to advertise it! (Thinking about the pot question more seriously, I'd say that if the government banned sales and advertisements of something beneficial like milk, then spamming to advertise milk would be a good thing. The only real argument against spamming for pot is that it isn't as beneficial as milk.)

So that's the mathematical argument in a nutshell:

1. Spam is bad because the costs to society are greater than the benefits. This would not be the case if you were spamming to advertise something whose benefits were greater than the costs of the spam.
2. However, in a mostly-free country where your product is legal to sell, #1 should never be used to justify spamming, because if the benefits of your product are really greater than the costs of the advertising, you can pay for the advertising, add the costs on to the cost of the product, and still have benefits left over to split between the seller and the customer.
3. #2 is not true in non-free countries like China, in which case if a product conferred more benefits than the costs of the spam but was not legal to sell, it might be OK to spam it.

Perhaps this logic is flawed, and I'm sure some people will tell me why they think so. The other question is whether these circumvention services really provide as much benefit to the Chinese and Iranians as those of us who run the services would like to believe. Earlier I argued that the real obstacle to most anti-censorship services is apathy on the part of the target audience, and that it was an unpleasant surprise, when I found some Chinese users on MSN Messenger to ask for help with some technical issue, to find that most of them either supported the Chinese government's censorship or didn't care enough to do anything about it. So for proxy spam to be defensible, it should -- come on, all together now, I can't believe I'm quoting the members of the industry that is the bane of my existence -- include an unsubscribe link that users can click to stop receiving any further e-mails. And a postal return address! Because who could have any cause to complain about an unsolicited e-mail that includes the sender's full mailing address in the footer?

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes in to say "The last few times that I sued a spammer in Washington Small Claims Court, I filed a "booby-trapped" written legal brief with the judge, about four pages long, with the second and third pages stuck together in the middle. I made these by poking through those two pages with a thumbtack, then running a tiny sliver of paper through the holes and gluing it to either page with white-out. The idea was that after the judge made their decision, I could go to the courthouse and look at the file to see if the judge read the brief or not, since if they turned the pages to read it, the tiny sliver of paper would break. To make a long story short, I tried this with 6 different judges, and in 3 out of 6 cases, the judge rejected the motion without reading it." The rest of this bizarre story follows. It's worth the read.
An example of a "booby-trapped" legal brief
with the pages still joined together

I did this after it occurred to me one day that I'd never won a Small Claims case against a spammer or telemarketer where the defendant had showed up in court. Sometimes the judges said the spammers were not liable, sometimes they said that the subject line of the spam was not misleading enough, and sometimes they simply said that they were going to make an exception under the law ("It was just one phone call"). So I asked the handful of other people in Washington that I knew had sued spammers in Small Claims, and none of them had ever won a case against a spammer or telemarketer who appeared in court either. (The only Small Claims victories had been out-of-court settlements and default judgments where the defendant didn't show up.) It wasn't because most judges said that the cases couldn't validly be brought in Small Claims court, it was simply that the number of times the defendant appeared and the judge ruled against them, was zero. Now, there were only a handful of us suing spammers and telemarketers in Small Claims, and the defendant only rarely showed up, so we're talking about a sample size of dozens of cases, not hundreds, and I'm sure some of those were cases where reasonable people could disagree. But still. Zero?

I knew when I started suing spammers in 2001 that many judges would have attitudes similar to this guy:

Judge Nault: You know what I think about these cases?
Bennett Haselton: Uh... what?
Judge Nault: They stink.
Bennett Haselton: Really? Why?
Judge Nault: I don't have to answer your questions, you have to answer mine.
Bennett Haselton: OK.
[...]
Judge Nault: I just think this is the stupidest law in the world. But I didn't write the law and I'm bound to follow it. So I'm gonna go ahead and give you your money. But I'm just saying, it just takes up court time and it's absolutely stupid.

Actually, I like honesty, and Judge Nault is like the hot chick who just tells you that she doesn't like your looks instead of making up some crap about your personality. But after getting similar (but usually more subtle) messages from so many different judges, I thought it was worthwhile to test whether the motions I was filing were being read at all. The 6 test case motions were all filed as part of the formal cases, so the judges were at least theoretically required to read them -- and each one was about facts unique to that case (that is, I wasn't handing in a copy of something that I had already handed in a million times before, that wasn't why they were being ignored). I posted the complete list of all the test cases here.

I realize, of course, that courts are overburdened and judges have to prioritize what they work on. The problem I have with that excuse applied to these cases, is that often the judge spent so much time haranguing me for filing some "silly" lawsuit, that they could have read the brief forwards and backwards in the same amount of time. More likely, most judges probably just don't think spam is a real problem worth spending time on. (Obligatory rebuttal.) But, strictly speaking, that's not the judge's decision. If the legislature has passed a law making spam punishable, the judges are simply supposed to apply that law, not to be influenced by their opinion about the law. (If a judge asserts a bias in the other direction, that's just as inappropriate, but that has been very rare.)

Well, shoot, I can't complain

If you feel you've been wronged, there is a Commission on Judicial Conduct in Washington for processing complaints against judges for improper behavior. For example, when a certain Judge Gary W. Velie got in trouble for saying "nuke the sand niggers" (referring to the first Iraq war), and for saying in court that a defendant had "gone crazy from sucking too many cocks" and telling another lawyer in court that he looked like he had been "jacking off a bobcat in a phone booth", the Commission flew (by judicial standards, meaning, a little over a year later) into action, and issued a reprimand. Evidently this was an exceptional situation, since the CJC takes action in response to only about 3% of submitted complaints in a typical year. Apparently the last time the CJC actually barred someone from office was in 2005, in the case of a judge who was convicted and imprisoned for molesting an 11-year-old boy. The Commission lists this decision as one of their accomplishments, although I think the judge probably wouldn't have been re-elected after that anyway.

Of the three test cases judges who got caught with the booby-trapped motions, two of them I thought were not really worse than most other judges anyway, but for the third one, I thought filing a complaint was probably justified. This was a case where I had telephoned the spammer before the trial, pretending to be an interested customer, and tape-recorded him making such statements as "Well, I would blast out 5 million for $500" and "It's a United-States-based company but they pump everything through China and then it comes back to the United States". At the trial, presided over by Judge Karlie Jorgensen, the spammer didn't know I was the guy from the phone call, so he claimed that he didn't even know how to send spam and had no idea what I was talking about, while Jorgensen kept Judge-Judying me in between just about every other sentence for picking on this obviously innocent man. After I brought out the recording, she became very flustered for a few moments and then started accusing me of "entrapment". (Entrapment, of course, is where you trick someone into doing something, and then sue them or arrest them for it. That wasn't the case here, since he spammed me first, and I called him afterwards just to get evidence that he was in the spamming business.) In the end she dismissed the case, and never said anything about the statements the spammer had made under oath.

So, that's when I filed my "motion to reconsider" with the pages stuck together, and after I got a letter that it had been denied (no kidding), I went to the courthouse and found the pages still attached. After the rest of the experiment was finished, I filed an official complaint with the Commission on Judicial Conduct saying that my motion had been rejected with the pages still stuck together, indicating the judge didn't read it. A little over a year later, I got a letter saying the complaint had been rejected.

Making a federal case out of it

Fortunately, there is a way to bring future spam suits in federal court, where several lawyers have suggested to me that I'm likely to get better results (with their help, naturally).

First though, I am of course aware that most spam can't be traced to the original sender to sue them, and that a lot of spam is sent by some Russian hacker or some loser in his Mom's basement who wouldn't be able to pay off a court judgment anyway. However, quite a bit of spam can be traced indirectly to companies that paid the spammer to send the spam or paid them for the leads that they generated, and those companies are usually easier to find and easier to collect against. For a while, every time I got a mortgage spam with a link to fill out a contact form, I would fill it out using a temporary phone number in a certain area code. Then I'd see which mortgage companies called me, and I'd call them back saying, "The person who sold you this lead is generated them illegally; you should stop buying leads from them, and should stop buying leads from people without asking where they came from." Then I'd wait until the next similar mortgage spam came in, fill out the form with a new phone number in the same area code, see which mortgage companies called me, and repeat.

Sometimes the mortgage brokers apologized and said they'd stop dealing with the person who sold them the lead. Others were unrepentant and started hanging up on me by the second or third time that I called them to tell them their latest batch of leads was generated by a spammer.

The Washington law lets you sue anyone who "sends, or conspires with another to send" spam if the person "knows, or consciously avoids knowing" that the spam violates the law. If I do file any future spam suits, what I'll probably do is use this method to find mortgage companies that refuse to stop buying leads from spammers, and then sue them for the cumulative liability for all the spam that I got from their lead generators. There are several advantages to doing it this way:

• Unethical mortgage companies are easier to locate, sue, and collect against, than most spammers.
• Rather than waiting for that rare spam that contains enough information to find and sue the spammer, you can almost always trace a mortgage spam to the company that is buying the leads, by filling it in with "bait" contact information.
• If you reach more than $75,000 worth of liability, you can sue in federal court. At least one good lawyer has said that if I built a case in this way against a spam-enabling mortgage company, he'd help file it for no up-front fee in exchange for a percentage of the winnings.

This last advantage is the big one. Whatever most media figures say in their rants against judges, what they usually don't mention is that there's a dividing line between judges at the state and federal levels: to be a federal judge, someone has to put their reputation on the line and nominate you. It's a horribly politicized process, but at least it's something. At the state level on the other hand, any lawyer who wants to be a judge can run for office -- and even then, for most judicial positions there is only one candidate. If we're so cynical about lawyers and politicians, why on Earth do we give a pass to judges, when a state-level judge is just a lawyer who ran for office? In fact, to be a "pro tem" judge, filling in for a day for the regular judge, you don't even have to win an election, you just take a class and then sign up for an available time slot.

Given the vastly greater seriousness of becoming a federal judge, I'll bet that if one of them had been handling the Karlie Jorgensen case, and the spammer said he "knew nothing about any spam" right before being confronted with a tape of his past conversations, maybe the judge wouldn't have sent him to jail for perjury, but the judge probably would have mentioned something about it. And if you had proof that a federal judge denied a motion without reading it, some cynics might not be surprised, but an official complaint at that level would probably be taken more seriously.

Besides, the nice thing about federal cases is that the defendant is likely to have a lawyer who will talk some sense into them and get them to settle out of court, instead of digging in their heels the way spammers often do in Small Claims. They say the best lawyer isn't the one who wins in court but the one who keeps the case from going before the judge at all, and I'm sure that's true even with federal judges. By that standard, I hope that every spammer that I sue in federal court, has a fantastic lawyer.

Slashdot contributor Bennett Haselton writes "A recurring theme in editorials about Net Neutrality -- broadly defined as the principle that ISPs may not block or degrade access to sites based on their content or ownership (with exceptions for clearly delineated services like parental controls) -- is that it is a "solution in search of a problem", that ISPs in the free world have never actually blocked legal content on purpose. True, the movement is mostly motivated by statements by some ISPs about what they might do in the future, such as slow down customers' access to sites if the sites haven't paid a fast-lane "toll". But there was also an oft-forgotten episode in 2000 when it was revealed that two backbone providers, AboveNet and TeleGlobe, had been blocking users' access to certain Web sites for over a year -- not due to a configuration error, but by the choice of management within those companies. Maybe I'm biased, since one of the Web sites being blocked was mine. But I think this incident is more relevant than ever now -- not just because it shows that prolonged violations of Net Neutrality can happen, but because some of the people who organized or supported AboveNet's Web filtering, are people in fairly influential positions today, including the head of the Internet Systems Consortium, the head of the IRTF's Anti-Spam Research Group, and the operator of Spamhaus. Which begs the question: If they really believe that backbone companies have the right to silently block Web sites, are some of them headed for a rift with Net Neutrality supporters?" Read on for the rest of his story.

In the aforementioned instance, AboveNet and TeleGlobe were not selling "parental filters" or other common types of filtered Internet access; the users being blocked from our Web sites were adults paying for what they thought were unfiltered Internet connections. What had happened was that AboveNet and TeleGlobe signed up to block Web sites on the Realtime Blackhole List, a list which was widely (but inaccurately) thought to be a list of "spammers", put out by a group called the Mail Abuse Prevention System. (MAPS and the RBL still exist, but under new management and in a form that bears little resemblance to their late-90's forerunners.) Most ISPs that used the RBL used it to filter only incoming e-mail, but AboveNet went all-out and blocked users from even viewing RBL'ed web sites, presumably because two of MAPS's founders, Paul Vixie and Dave Rand, were on the AboveNet board of directors. And it turned out that the RBL not only included spammers, but also Web sites that were not sending mail at all but were blocked because of their content -- in our case, our ISP got blocked because some other customers were selling mailing list software that MAPS believed could be too easily abused by spammers.

These two distinctions -- (1) the distinction between blocking incoming e-mail from spammers, versus blocking Web sites; and (2) the distinction between blocking traffic due to spam activity, versus blocking sites because of their content -- both go to the heart of what Net Neutrality is, and isn't, about. Net Neutrality is about user preferences -- not meaning that as a buzzword, but as an actual guiding principle to figure out what is and is not covered by the cause. If an ISP filters incoming mail from known spammers, that generally improves the user experience, and is something many users would expect an ISP to do anyway. But if an ISP blocks users from reaching Web sites (even, for the sake of argument, the Web sites of actual spammers), then that's generally counteracting the user's wishes -- if the user didn't want to go there, they wouldn't have typed it in. (After all, I visit spammers' Web sites all the time, usually right before I sue them.) Similarly, if an ISP blocks traffic from sites because of spam or other network abuse, that serves to protect their own users. But if an ISP blocks users from viewing sites because of their content, that's generally not expected by users, unless they've specifically signed up for something like parental controls. The Snowe Net Neutrality amendment proposed last year recognized both of these distinctions, and stated that nothing in the amendment would be interpreted to prohibit spam filtering, parental control services, or measures to protect network security.

The MAPS incident thus shaped most of my opinions about Net Neutrality 6 years before the debate even had a name. When I first found out in August 2000 that our ISP was blacklisted, like most people I believed that the RBL really was a list of spammers; after all the MAPS web page said that the RBL was a list of networks that "originate or relay spam". So I called my ISP screaming at them for being incompetent spam-enablers (the culmination of many frustrating issues with them), and saying that if they really were letting customers send spam, or running an insecure server that spammers were hijacking, I would leave on principle, if the cretins managing our server didn't drop it in the lake first. The ISP owner then told me what happened: that the ISP was not blacklisted for spamming customers, but because of the content of the other sites. (Buried in the list of RBL criteria on MAPS's site was the statement that sites could be blacklisted for providing "spam software", although the criteria did not define how they distinguished between spam software and regular mailing list software, which is how our ISP got caught in the net. And the criteria did not disclose anywhere the most controversial feature of the RBL, which is that if an ISP didn't comply, MAPS would start blacklisting other unrelated sites at the same ISP to put more pressure on them.) I agreed that this seemed to be absurd, and said I wouldn't leave the ISP if they were being blackballed just because of the content of hosted pages.

I don't know exactly what the mail software in question did or where MAPS thought the line should be drawn, but I am a purist about content -- it's a long-standing principle among the Internet security community that if a tool exists which exploits a security hole, you don't try to make the software disappear, you fix the hole. And besides, since MAPS and their supporters wanted to blackball ISPs that hosted spamming software (however you defined that), but the same people had never advocated blackballing ISPs that hosted network break-in tools and other cracking programs, for example, then what were they really saying? That spamming someone more unethical than breaking into their network?

But by far the most common objection to my complaint about AboveNet blocking Web sites was, "Hey, if a private company blocks things, as long as they're being honest to their users about it, who cares?" Well, true, but the fact that AboveNet blocked Web sites was not widely known even within the company; when I once called AboveNet feigning ignorance and asking them if they blocked RBL'ed Web sites, the technician who spoke to me said, "No, that wouldn't make any sense." (Well, half right.) Their AUP mentioned "protecting users from spam" but said nothing about blocking Web sites. In fact, other than "family-filtered" ISPs and similar services, I've never heard of any company blocking Web sites that actually did try to make their users aware of it. (On the other hand, even if AboveNet had fully disclosed their filtering, they were still a backbone company selling connectivity mainly to ISPs -- and I think if you sell something wholesale that can only be re-sold to the public by fraudulent means, then you're at least partly complicit in that fraud as well.)

If you're tempted to argue that backbone providers should be allowed to block whatever they want as long as they bury it in their AUP (although AboveNet and TeleGlobe didn't even do that much), just consider: When you access Google from your home computer, have you read the AUP of every network that the packets pass through, to check whether they reserve the right to block or even modify your traffic? Without doing a traceroute, could you even name all the networks that the traffic passes through? Do you really want the burden to be on you to check with all of them every time there's a problem reaching a Web site? Or do you feel like there's an understanding that as long as you pay your bill, they should let you go wherever you want?

Some have argued that if an ISP blocks the user from reaching a Web site, then even if the ISP is defrauding the user, that's still strictly an issue between the user and the ISP. But if a user is trying to reach your Web site, the user is trying to give you something of value: their attention, their eyeballs on your advertisements, sometimes even their money (with the expectation that you will provide them with something in return, of course, like some content worth reading). If the ISP steps in and blocks that, then the ISP has taken something of value that the user was attempting to give to you, and diverted it to serve their own interests. To me that doesn't seem ethically much different from the FedEx driver swiping the chocolates that someone tried to send you for Valentine's Day. Is that just between the sender and FedEx? Or do you have a beef because you didn't get the present that was intended for you, and you had to eat last week's chocolates to cheer up?

The modern-day threats to Net Neutrality are different: slowing access to Web sites unless the site owners pay a "toll", instead of blocking access to sites because of the content of other sites hosted at the same ISP. But they both boil down to the same thing: not giving end users what they have already paid for. If a user buys Internet access, they almost always buy it with the understanding that if they access a site, the content will download as quickly as their connection allows.

Thus the most common misconception about Net Neutrality is that the proponents are fighting against "capitalism" -- ISPs just charging more for different delivery speeds. But ISPs are already charging users for those delivery lines -- including different tiers for different prices. That's capitalism, and it works, with prices falling all the time in a fairly competitive market. But charging publishers for those higher delivery speeds to the user's house, is really more like double-billing, because the user has already been charged once for the lines that the content is coming over, so the ISP is trying to charge the content publisher again for the same service. Of course, if you charge party A for doing X, and then you try to charge party B for the same instance of doing X, and party B doesn't pay up so you don't do X, you're also breaking your deal with A. Brad Templeton of the EFF stated as much on his blog in 2006:

The pipes start off belonging to the ISPs but they sell them to their customers. The customers are buying their line to the middle, where they meet the line from the other user or site they want to talk to. The problem is generated because the carriers all price the lines at lower than they might have to charge if they were all fully saturated, since most users only make limited, partial use of the lines. When new apps increase the amount a typical user needs, it alters the economics of the ISP. They could deal with that by raising prices and really delivering the service they only pretend to sell, or by charging the other end, and breaking the cost contract. They've rattled sabres about doing the latter.

And I think the same is clearly true if, instead of trying to extract money from the content publisher, the ISP tries to extract something else, like an agreement to shut down certain Web sites before the ISP will let their users view other sites hosted at the same company. You can talk all day about how evil those Web sites are, but the ISP has already sold the user a connection with the implied ability to access them.

Anyway, this all came out in 2000 when a Slashdot article revealed that AboveNet had been blocking Web sites, and AboveNet stopped doing it two hours after the article came out. (TeleGlobe stuck with it for a few more months.) But from the hostility of the reaction, you'd think that we had published cartoons in a Danish newspaper showing Paul Vixie with a bomb in his turban. I got more e-mails than I could count arguing that AboveNet had the right to block whatever Web sites they felt like, regardless of whether the end users knew it was happening. To those people, I'd be sincerely interested in their answer to this question: Does that mean they've have no problem if they found out their ISP was silently blocking sites for political reasons? There is a clear line between following user preferences by blocking spam, and countermanding user preferences by blocking sites because of their content -- and once you've crossed that line, where's the logical stopping point? Seriously, I would have liked to have known how they would answer that, if I could have gotten any meaningful dialog going with them, which most of the time I couldn't. At the time, I'd just spent four years telling people that kids looking at porn was a non-issue, and that by the way if their kids came to my Web site I'd even help them get around their blocking software, and I still got more angry e-mails for disclosing the fact that AboveNet blocked Web sites based on their content, than I'd gotten in all the previous four years combined. (A few even accused us of moving into a blacklisted address block on purpose. This was because the actual move happened after the blacklisting was in place, even though I told them all that our ISP had announced the coming move two months before -- repeat, before -- they ever heard from MAPS. Some people were so in love with that "smoking gun" that they didn't believe me; that's their prerogative. But don't take my word for it -- when one supporter wrote to MAPS to ask about un-blocking our site, MAPS officer Kelly Thompson replied:

>Would it be possible to
>selectively unblock peacefire.org (209.211.253.169)?
Technically? Yes, it is. It's a violation of our policy, though, so I can't do so.

I would be willing to help you find other free or reduced cost hosting, however.

It was MAPS's decision, not ours or our ISP's, to have our site blocked. That should settle that once and for all, just as soon as there is peace in the Middle East and a black lesbian in the White House.)

But what do all these people think about Net Neutrality, 6 years later? I tried to track down the influential people who had spoken out supporting AboveNet's blocking of Web sites, or at least their right to block Web sites. My position was, we can agree to disagree on that, but if they really feel that way, why haven't they been speaking out against Net Neutrality? The proposed Snowe amendment was pretty clear:

SEC. 12. INTERNET NEUTRALITY
(a) Duty of Broadband Service Providers- With respect to any broadband service offered to the public, each broadband service provider shall--
(1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet.

John Levine, webmaster of Abuse.Net, head of the IRTF's Anti-Spam Research Group, and one of the most vocal critics of Peacefire's campaign against AboveNet's Web filtering, said that he would have opposed the bill but didn't bother because it didn't have much chance of passing. Well, it didn't, but the bill was significant not because of its likelihood of passage, but because it articulated the principles that the Net Neutrality coalition had rallied around, and with the momentum behind the movement, it's likely to achieve at least some of its goals, by legislation or otherwise.

Paul Vixie, Dave Rand, and Steve Linford did not respond to requests for comment on Net Neutrality. But Paul Vixie wrote something very interesting in a May 2006 blog post:

Second, there's network neutrality. In telephone service, the government mandates that all companies providing voice-grade telephony interconnect with eachother at preset rates, thus ensuring that any phone can call any other phone and that new phone companies can enter the field to help ensure competition. In Internet service, the government mandates nothing. Recently SBC (I mean AT&T, I think, is it Wednesday?) rattled its sabre and said that Google and other content supplying companies should be paying for the use of SBC's backbone to reach SBC's eyeballs. Most of us said, uh, what? "Aren't SBC's own customers paying SBC to carry that traffic?" Some of us even said "I am not an eyeball, I am a person!" But anyway, from time to time these Internet companies shut down interconnects in hopes of creating new cash flows among eachother, and until the government regulates this, we're all at risk of higher prices or lower service with zero notice. Some well meaning democrats are trying to challenge this with "network neutrality" legislation, but this probably isn't their year. Or their decade.

San Francisco has a government, though. And if San Francisco owned and operated its own wireless Internet plant, we could mandate that any Internet company wishing to do business in this city interconnect at fair and reasonable cost to all other Internet companies wishing to do business in this city.

"Until the government regulates this"? "Government mandates"? "Fair and reasonable cost"? Quick, call the anti-socialist intervention squad! How long does it take those San Francisco hippies to suck the new arrivals' brains out anyway? Of course, I agree with everything he said. It's just that if you replace "create new cash flows" with "try to get ISPs to remove content from their servers", this describes exactly what Vixie and AboveNet were doing a few years earlier. He's a smart guy, and I'm sure this didn't escape his sense of irony, so perhaps this confirms something I'd suspected all along, which is that Vixie understood the subtleties of the issue better than most of his cheerleaders, and may be having second thoughts about AboveNet's Web-blocking misadventure. From the beginning, in a 1997 interview with Sun World, he sounded like someone trying to at least keep an open mind:

Concentration of power into a single individual: It's very true that power has corrupted every individual in whom it has ever been concentrated in the history of mankind. I do not feel that I am necessarily above whatever elements of human nature give rise to that. I worry about it. Probably other people worry about it more than I do.

Although, he didn't get to making any such frank statements during the controversy over AboveNet's Web site blocking. (Perhaps MAPS's lawyers were worried that he was a little too unfiltered and advised him not to comment; at the time, the MAPS Web site had a "How to sue MAPS" link on the front page.)

Speaking of which, Anne Mitchell, Director of Legal and Public Affairs for MAPS during the time when AboveNet was blocking Web sites, was the only MAPS adherent from the era that I could find who has since clearly and publicly come out against Net Neutrality. In May 2006 she wrote:

Here's the thing that the 3Ns (Net Neutrality Nuts) don't get: bandwidth costs money. And if you can't charge those who use the majority of it accordingly, then you are going to have to amortize it across everybody.

So, if a net neutrality law passes, don't be surprised when your costs to have an Internet account skyrocket.

Because somebody has to pay those bills, and if the law says that the ISPs can't charge the big guys - the big users - differently, it means that they have to charge them the same rate that they charge everyone else. And that means not that their rate will go down, but that everybody else's rate will go up.

And then again in February 2007 in another blog post titled "Towards A Nanny Internet", she wrote, "Network neutrality is the idea that ISPs should be forced to charge everybody the same for their Internet use", grouping it together with proposed anti-bullying and anti-anonymity laws.

Well, points to Anne for being consistent, and for publicly declaring her views in no uncertain terms, which is all I'm asking of the other supporters of AboveNet's website blocking policy. (Although she's coming at it from a different angle this time, "How do we work out who pays for the traffic" rather than "ISPs should be allowed to block whatever they want without telling anybody".) But this is also a textbook example of what I think are the three major fallacies of opposition to Net Neutrality:

First, lumping it together with other examples of unpopular regulation and calling it one more example of Big Government -- an argument also tried in other editorials ("Politicians and public figures alike should realize the absurdity of advocating more red tape to keep the Internet free"). This meme has never really caught on, possibly because groups like the ACLU and the EFF that have traditionally opposed true Internet censorship, have lined up in favor of Net Neutrality. All the proposed "red tape" and "regulation" really says is that if a user attempts to access a Web site over a connection that they've paid for, the ISP may not block or slow down their access, a law which most people would hardly consider tyrannical.

Second, asserting that "Network neutrality is the idea that ISPs should be forced to charge everybody the same for their Internet use." I've never actually heard anyone advocate anything close to that, but a common question among skeptics is why different "tiers" for Internet traffic are really any different from different-tiered pricing for dial-up vs. DSL, or for different levels of Web hosting. The difference is that when users and Web site owners pay for those connections, they are paying for their respective connections to the rest of the Internet. But an ISP charging a Web site owner to carry their traffic the last mile to the user's house, is not charging for a product or service, but really charging a fee not to break a service that they've already agreed to provide to the user.

Which leads to the third misconception: "Here's the thing that the 3Ns (Net Neutrality Nuts) don't get: bandwidth costs money... So, if a net neutrality law passes, don't be surprised when your costs to have an Internet account skyrocket." But it's not about how much a service costs, but about the ethics of double-billing for it. We know that ISP pricing models can already support the total traffic that people consume today, and ISPs do already follow net neutrality principles most of the time, so nobody's costs will "skyrocket" just because a neutrality law passes. If vastly more people start trying to stream CNN over the Internet 24/7, and fully using the services that ISPs have "only been pretending to sell" as Brad Templeton put it, then ISPs may have to charge more for users who consume too much bandwidth, encouraging people to stay at today's average levels by rationing themselves and perhaps watching 24 on their $5,000 TV sets sometimes instead of downloading it off of BitTorrent to their laptop every week because it makes them feel like a haX0r. Much as we all love our unmetered connections, it wouldn't be a violation of Net Neutrality for ISPs to charge users for bandwidth hogging, to keep everyone from going too far above today's levels. What ISPs should not do is charge users for implied full-throttle connections, and then turn around to charge publishers for moving bits over those same lines, or block the connection for any other reason.

So, yes, Virginia, blocking of Web sites does happen -- and by "Virginia", I mean FTC Chairman Deborah Platt Majoras, who said in a speech in August 2006: "I have to say, thus far, proponents of net neutrality regulation have not come to us to explain where the market is failing or what anticompetitive conduct we should challenge; we are open to hearing from them." This was echoed in an editorial later that month from Sonia Arrison of the Pacific Research Institute:

Internet service providers have voluntarily upheld content-neutral practices without the need for government intervention, and consumers would never stand for blocked Web sites... If the loss of net neutrality principles was really a problem, advocates wouldn't need to scare Americans in order to win their support. Using government regulation preemptively to shortchange business partners is a reckless abuse of the public policy process. New laws should be based on facts and reality, not fear and hypothetical situations.

I guess both of those ladies' ISPs must be blocking access to the SaveTheInternet.com Web site, so I e-mailed both of them the coalition's list of examples, and added a note about the AboveNet/TeleGlobe incident as well. No personal response from either of them yet, but I'm sure they just got lost in the shuffle while they were so busy sending out corrections. (On the other hand, I did get a courteous response from Randolph J. May of the Free State Foundation, when I wrote to him about an editorial he penned which also argued that violations have not happened: "It is generally agreed that except for a few isolated and quickly remedied incidents, neither the cable operators nor the telephone companies providing broadband Internet services have blocked, impaired or otherwise restricted subscriber access to the content of unaffiliated entities." He said he hadn't known about the AboveNet/TeleGlobe incident either.)

Another theme in some anti-Net-Neutrality editorials is that existing laws are enough to deal with the problem. In Majoras's speech, she said, "We should not forget that we already have in place an existing law enforcement and regulatory structure." Arrison's echoed that "Numerous federal agencies already have set a basic legal framework in place to preserve fair competition and business practices on the Internet". Well, as Yogi Berra says, in theory, there is no difference between theory and practice, but in practice, there is. After I found out AboveNet and TeleGlobe were blocking my Web site, I called about twenty lawyers in the Bellevue phone book, figuring: I wasn't greedy, but surely there would be financial damages for deceiving users and blocking our site, enough to pay a lawyer in return for handling the case? I think about two lawyers called me back, and they both said that even though what the backbone companies were doing clearly looked like fraud, it would take tens of thousands of dollars just to get started, and even if we ever got to court, the judge could call it however they wanted. Whatever laws exist now, they may help the slightly smaller big guy against the bigger big guy, but are not much use to the little or medium-sized guy.

So, any informed debate about Net Neutrality has to include the fact that, yes, some providers have blocked Web sites on purpose, for long periods of time, and no, the free market didn't fix it by itself. Even if something on that scale never happens again, if the free market and the anti-trust laws didn't automatically correct a case where Web sites were being blocked outright, then it's wishful thinking to think that those forces will prevent ISPs from merely slowing down Web access to sites that haven't paid a "toll", as they have made noises about doing. One AboveNet customer, Sam Knutson, said when he found out about the Web site blocking, "This type of behavior on the part of an ISP is reprehensible. I pay for a pipe and don't expect this type of monkey business." Well, I agree that it's reprehensible; whether we should "expect" more of it or not, depends on how much the Net Neutrality movement achieves its goals.

Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

Regular Slashdot contributor Bennett Haselton wrote in with a story about the DMCA. He starts "On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife's avatar/character in the virtual community "Second Life", retracted the claim and stated that he now believes the video was not a copyright violation. (He had sent similar notices to BoingBoing and the Sydney Morning Herald just for posting screen shots of the video.) His statements in a C-Net interview suggest that he didn't mean to alienate the anti-censorship community and was probably angry over what he saw as a sexually explicit attack on his wife. But the event sparked renewed debate over the DMCA and what constitutes abuse of it. I sympathize with Graef and I admire him for admitting an error, but I still think the incident shows why the DMCA is a bad law." Hit that link below to read the rest of his story.

The DMCA is known mainly for its two most controversial provisions: the ban on technology to circumvent copyright restrictions, and the procedures by which ISPs must respond to "take down" notices if a third party claims that one of the ISP's users is violating their copyright. The first of these, I am opposed to in principle; the second, I am not opposed to in principle but I think is too easy to abuse in practice -- because I think incidents like the Graef case and my own limited court experience in related areas has suggested that the protections against DMCA-type abuses are very weak.

First, I'm against the anti-circumvention provision in principle because I agree with the position espoused by the EFF that computer code is protected under the First Amendment, even if some uses of that computer code may be illegal. After all, at one point a U.S. court even ruled that a manual for carrying out murders as a hit man was protected speech! That ruling was overturned on appeal, and the case was settled out of court before a final decision was ever reached, but still -- given that a handbook for killing people was considered free speech by at least one court, it's a bit of a stretch to think that a DVD-copying program should be given less protection. Just because X is illegal does not mean that tools or instructions for doing X should also be illegal.

With regard to the second provision, I'm not against requiring ISPs to take down infringing material on receipt of a notice from the copyright holder. But in practice there are two avenues for abuse here: (a) the party sending the take down notice can make statements that are not technically false, but which have the effect of persuading the ISP to take the material down, or (b) the party sending the take down notice can simply lie -- because the truth is that in too many cases, false statements made "under penalty of perjury" are not prosecuted, or even noticed, by the courts.

The EFF has already done a good job documenting abuses under the DMCA, and I'm not going to repeat all of that here. My argument is that these are not just temporary problems with a relatively new law, but rather that the abuses are the result of realities that won't change any time soon: ISPs being too busy to look closely at every complaint, and courts being too busy to go after everyone who violates court rules to get what they want. And thus it does no good to say that the DMCA would be fine if only enforcement actually got done properly instead of the ham-handed way it's been carried out so far, because that's not going to happen.

As I said, I think that if you have a bona fide case against a party, there's nothing wrong with taking action against them that would otherwise be considered a violation of their privacy and other rights. I've never sent a DMCA take down notice myself, but I've been involved in court cases in which I asked the judge to sign an order requiring a third party to turn over information about someone that was pertinent to the case. I don't consider that an abuse of the system, if the information you're after is relevant.

I realize this may separate me from some fellow privacy advocates, and some of the things I've done may make them uncomfortable. In one case, I had invited a girl to a charity luncheon where the tickets were $100 apiece, and when she showed up she had "forgotten her checkbook" and needed to borrow the money... Now, don't get ahead of me... Later, in what will not come as a huge spoiler to my fellow male Seattle residents, she apparently decided that, being a non-overweight, non-single-Mom, non-sexually-repressed girl in a city full of rich single guys, she was under no obligation to pay me back, and said, "Go ahead and sue me". Anyone who knows about my sideline taking spammers to court would tell you, it is not a terrifically smart move to say to me, "Go ahead and sue me". So, since I was going to be at the courthouse for an upcoming case against a spammer, I figured, why not, and filled out a Small Claims form with the defendant's address listed as "to be determined", since all I had was her cell phone number. Then I asked the judge to sign an order asking T-Mobile to give me the rest of her information so I could serve the papers on her. The judge signed it, I mailed it off to T-Mobile, and three weeks later T-Mobile sent me a letter containing her address, where I had the papers served. Most people don't know it's possible to do this just in a case where someone owes you $100 and all you have is a phone number, but that's just because a lawyer would never bother with such a small case, and most non-lawyers don't know the option exists -- and of course, it also depends on the judge, who may or may not sign the order.

(In that vein, people always ask me, is that sort of thing really worth the time? In this case, since I was going to be at the courthouse anyway, the extra time to write the motion, get it signed, and mail it off, was less than 30 minutes. But I was mainly curious about whether or not it could be done, and how much privacy protection there really is under the law, and knowing that was worth more to me than the $100 anyway.)

So I don't think it's unethical to request such information if you have a genuine case against a party. But while I don't think that what I did constitutes abuse of the system, I think it clearly shows how the system could be abused. Nobody checked my ID when I filed the case or asked the judge to sign the subpoena; I could have been anybody, and I could have disappeared once I had the information. (I had T-Mobile mail it to my address, but I could have just as easily had them mail it to the court, and then gone down and asked to look at the court file.) DMCA opponents should be aware that even without the DMCA, privacy protections are not as great as most people probably think they are.

As a result, I'm especially nervous about laws that enable abuse based on copyright assertions, because almost all of the legal threats we've ever received at Peacefire were based on what I considered to be bogus "copyright" claims. In 1997 we published a program that you could run on any computer with CYBERsitter blocking software installed, and it would decrypt the file that stored CYBERsitter's "secret" blocked-site list, and print it out in plain text. The CEO of CYBERsitter claimed that we were "violating every intellectual property law ever written" and sent threatening notices to our ISP demanding that they remove the program. I argued that every byte of the decryption program was our original work, so it didn't violate their copyright. In fact, it didn't even enable violations of their copyright, because it didn't make it any easier for someone to distribute illegal copies of their program, and I also said the decryption program served a worthwhile purpose by allowing customers or potential customers to see what the program really blocked. (Although to me, the enabling issue and the "worthwhile purpose" issue were secondary to the primary point, that original works of computer code should be protected by the First Amendment.) Fortunately our ISP stood their ground, but if the DMCA had existed back then, CYBERsitter could have invoked it, and possibly the extra pressure might have caused our ISP to back down. (Blocked-site-decryption programs were originally exempt from the DMCA as a result of the decision of the Copyright Office, but that exemption was revoked in 2006 because nobody had written a new decryption program in three years.)

So that was an example of how a company could intimidate an ISP into taking down material, without technically lying about the situation, but tacking on the words "copyright violation" and hoping the ISP would capitulate. What about cases where the sender of a DMCA take down notice just lies?

The Dutch activist group Bits Of Freedom conducted an experiment in 2004, in which they signed up with 10 different ISPs and posted a copy of a work that was clearly labeled with a notice that the author had died 100 years ago and the copyright had expired. Then they sent fake "complaints" to all 10 ISPs from an anonymous Hotmail address. 7 of the 10 ISPs removed the content immediately, and one even replied to give the personal details of the account holder, without being asked to do so. So completely fictitious complaints do apparently work. The DMCA does more protection than that because it requires the complainer to make a copyright claim "under penalty of perjury". But how much assurance does that really provide?

No one has yet tried to get our site shut down with a copyright claim or other accusation that was simply made up out of whole cloth. But my experiences in other areas have left me without much confidence in statements that are made "under penalty of perjury". The times I've been to court against spammers, I usually get to watch a few other Small Claims cases being tried. Probably at least once every time that I've been there, it's come to light that some party in a case said something that they almost certainly knew was not true, and I've never seen a judge do anything about it -- and court employees who have been there much longer have said they've never seen it happen either. (Judges are far more likely to get upset about people speaking out of turn. It's OK to lie, as long as you do it while the judge isn't talking!) It's true that Small Claims court is for resolving small matters, but lying under oath in Small Claims court is still a felony, punishable at least in theory by up to 10 years in jail. (And in any case, lawyers have told me that even in higher-level courtrooms, most false statements don't get anyone in big trouble. High-profile cases like Martha Stewart are the exception.) I don't think that everyone who lies under oath should go to the big house for 10 years. But I have no faith in the DMCA just because it requires accusatory statements to be made "under penalty of perjury", when judges usually let false statements under oath go completely unnoticed.

I doubt that a lawyer would risk their career and even their freedom to make up a completely fraudulent DMCA claim against us, such as claiming a page on our site was a ripoff of something originally produced by their client. But I don't think it's out of the realm if possibility that a lawyer would claim that, for example, a parody of one of their logos that appeared on our site, was a "copyright violation" -- even though the company would almost certainly be advised by their lawyer that such parodies are protected speech, which means their statement would constitute perjury, but it would probably never be punished.

The low point of my own confidence in the enforcement of anti-perjury laws, came when I sued a spammer who appeared in court and claimed that he had absolutely no knowledge of the spam being sent, and had never accepted any orders for spamming of any kind, while the judge, who appeared to hate anti-spam cases even more than most judges did, kept haranguing me for suing a clearly "innocent" person. I then played a recording of a conversation that I had with the spammer over the phone, pretending to be an interested customer (with a disclaimer played at the beginning of the call saying that it could be recorded, in order to make the taping legal), in which he said, among other things:

"I mean, we have all their information to back up any email we send them. If we have their ISP information, we can prove that they've given it out, because you can't get someone's ISP unless they've given it to somebody." [sic -- he meant "get someone's e-mail address", although the statement is still wrong]

"Do you already have your creatives and everything? So I've just got to upload what you have and just blast it out?" [note: "creatives" are copies of ads that sent out for you by advertisers and spammers]

"It's a United-States-based company but they pump everything through China and then it comes back to the United States."

The judge appeared very flustered at that point and started accusing me of "entrapment" (which was backwards -- I'd never heard of the spammer until he spammed me first, and then I called him afterwards, just to get evidence that he was in the spamming business in case he showed up in court and denied it). Since she claimed it was entrapment, I still lost and the spammer walked out home-free, without the judge ever even commenting on the questionable veracity of the statements he had made at the beginning. And that is all the protection that exists in the real world against people making false statements "under penalty of perjury".

The point is that when reading the wording of a proposed law, there's a temptation to think that the scenario described is exactly how the law will play out when it's enforced (see the "Alice, Bob and Charlie" scenario in the Wikipedia entry on the relevant section of the DMCA), and that anyone who deviates from the rules will be punished. But my narrow experience in court, in an area unrelated to the DMCA, taught me some things that several lawyers, with sad smiles, have confirmed to be true throughout the law: (a) judges will do what they want; (b) even if judges do sincerely want to follow the law, they're unlikely to agree on what it says; and (c) courts don't have the will or the time to chase down every person who violates the rules.

Don't judge a law by what it says will happen. Judge it by how it will play out if more than half of the steps in the process get screwed up. Guntram Graef apparently wasn't even trying to do anything dishonest when he got a video removed from YouTube on the basis of copyright claims that turned out not to be valid. Imagine how much abuse is possible when you're gaming the system on purpose.

Bennett Haselton writes "Parties have reached a settlement in Joel Hodgell vs. EFinancial LLC, an anti-spam case in which I got involved because after Joel sued the defendant over spams he had received, the defendant asked the judge to make Joel turn over a copy of his hard drive." That might not sound that strange until you realize that the case in question was over webmail that was obviously never actually stored on his hard drive. And the witnesses knew it.

This was a pretty silly request because Joel was suing over spams he received at Hotmail and Yahoo Mail accounts, e-mails which were never stored on his hard drive at all. I think the absurdity of it stands as a good example of what you should be prepared for if you try to take a spammer to court, even if you're represented by a lawyer.

Joel had originally sued the defendant for 49 separate spams under the Washington anti-spam law, RCW 19.190. I generally support anti-spam plaintiffs since I've been one myself a few times. When I've written about this before, a lot of people have wondered if the hourly returns were really worth the amount of time you put into it. I should have made that more clear; even after factoring in clerical errors and judicial bias, the answer really is Yes. Once you get a feel for which spammers and telemarketers can be easily tracked down, and which ones are likely to have money, you have a decent chance of getting a settlement for $500 or more for less than an hour's worth of work, if you do it right , e.g. requesting the forms by mail instead of going downtown to stand in line. (The case takes months to move through the courts, but it's possible to keep your total amount of work spent under 1 hour.) And if you're in Washington, and the same spammer sends you a large number of spams and you save them all, then you have a shot at an even larger prize if you're willing to split it with a lawyer. (Lawyers often work on contingency, after all, and they won't take on the case if they don't think there's a good chance of getting paid.)

But in Joel's case, the defendant had hired their own expert witness, Larry G. Johnson, who wrote a declaration in which he acknowledged that the mails were Yahoo and Hotmail messages, and still said that the only way to determine the "authenticity and source" of the e-mails Joel was suing over, was to get a mirror copy of Joel's hard drive. After Joel showed me that declaration by their "expert witness", and re-iterated that he was suing over Yahoo and Hotmail messages that never touched his hard drive, I volunteered to write my own expert witness declaration for free pointing out, basically, how skull-crushingly stupid the defendant's request was.

At first, I tried looking for some alternative interpretation that might make their request seem less absurd. Johnson's declaration technically requested a copy of "the computer storage media on which the purported emails allegedly reside (e.g. hard drives, CDs, DVDs, floppy disks, etc.)". Perhaps by this he meant that he wanted a mirror copy of one of the hard drives at Hotmail or Yahoo? (Knowing, of course, that they'd fight it to the death, and the case could drag on for years?) But no, the order drafted by the defendant for the judge to sign, said "Plaintiff is ordered to allow Defendants inspection of its computers, computer storage media and subject emails as outlined in Defendants' CR 34 Request for Production and Inspection" -- Joel's computer specifically, not Hotmail's RAID array.

I also said publicly at the time that the real outrage was that their "expert witness" could make this statement when there was no chance he believed it. Larry Johnson's CV lists his credentials: educated at Harvard, admitted to the bar and licensed to practice law in Washington, doing computer consulting for 21 years, and (really) appearing in a movie called "Easier Said" as "Sheriff Tiny". And here he was making a statement, under oath, that could be refuted by a reasonably computer-literate 12-year-old. Not just outrageous that he said it. Not just that he got paid for it. (Actually, that doesn't make me too mad, because it was the spammer who paid him, so it was just transferring money from a full-time societal leech, to someone who is usually gainfully employed and merely amoral.) Outrageous that in the best-case scenario the judge would just ignore the testimony, instead of fining him or putting him in jail, which is what is supposed to happen in theory if someone gets caught lying under oath.

Well, one constant in this business is that the record for Biggest Judicial Outrage in the History of the World gets broken every three weeks.

On June 9, 2006, Judge Richard Jones of King County Superior Court signed the defendant's order commanding Joel to turn over a mirror copy of his hard drive to Sheriff Tiny. Which in practice meant: turn over a copy of your hard drive, or drop the lawsuit, or spend thousands more on an appeal.

I tell people this and I find they can't really believe a judge would go along with a request like that, they think I must be leaving something out. So I urge you to follow the links to the documents above. The defendant asked the judge to sign an order permitting inspection of Joel's hard drive, I wrote a response saying it was bogus, the judge signed the order anyway, and that was really all there was to it.

The way that Washington lower-court judges have handled anti-spam cases so far has been interesting. My experience has been that many of them don't take the cases seriously, but they usually try to find an obscure legal technicality on which to reject the case; probably they don't want a few victories to bring everybody out of the woodwork clutching a copy of their most recently received porn spam. (For example, one judge said the statute only allowed you to "recover" up to $4,000, and claimed that wouldn't apply in my anti-spam cases because I hadn't lost any money. However, in legal jargon, including some Supreme Court cases that I cited, the word "recover" is often used to mean simply taking something from another party, not necessarily something that you've lost. And anyway I doubt that the legislature, when they specified $500 in damages per message, intended for people to first have to prove that they'd actually lost $500.) I think most judges figure that if anybody tries to complain about their treatment in the courts, people's eyes will glaze over at the discussion of the legal technicalities, and it will just sound like someone complaining because they lost.

But once in a while a judge fudges an issue that involves no arcane legal jargon and that everybody can understand. If someone sues over spams received at Hotmail and Yahoo accounts, and a judge makes them turn over their hard drive, that doesn't have enough of an eye-glaze factor. People hear that and understand what it says about the courts.

Still, the judge's ruling stands. Lawyers have a saying that if a judge rules the sky is green, there's not much you can do about it unless you're willing to spend a ton of money.

Bennett Haselton writes "Parties have reached a settlement in Joel Hodgell vs. EFinancial LLC, an anti-spam case in which I got involved because after Joel sued the defendant over spams he had received, the defendant asked the judge to make Joel turn over a copy of his hard drive." That might not sound that strange until you realize that the case in question was over webmail that was obviously never actually stored on his hard drive. And the witnesses knew it.

This was a pretty silly request because Joel was suing over spams he received at Hotmail and Yahoo Mail accounts, e-mails which were never stored on his hard drive at all. I think the absurdity of it stands as a good example of what you should be prepared for if you try to take a spammer to court, even if you're represented by a lawyer.

Joel had originally sued the defendant for 49 separate spams under the Washington anti-spam law, RCW 19.190. I generally support anti-spam plaintiffs since I've been one myself a few times. When I've written about this before, a lot of people have wondered if the hourly returns were really worth the amount of time you put into it. I should have made that more clear; even after factoring in clerical errors and judicial bias, the answer really is Yes. Once you get a feel for which spammers and telemarketers can be easily tracked down, and which ones are likely to have money, you have a decent chance of getting a settlement for $500 or more for less than an hour's worth of work, if you do it right , e.g. requesting the forms by mail instead of going downtown to stand in line. (The case takes months to move through the courts, but it's possible to keep your total amount of work spent under 1 hour.) And if you're in Washington, and the same spammer sends you a large number of spams and you save them all, then you have a shot at an even larger prize if you're willing to split it with a lawyer. (Lawyers often work on contingency, after all, and they won't take on the case if they don't think there's a good chance of getting paid.)

But in Joel's case, the defendant had hired their own expert witness, Larry G. Johnson, who wrote a declaration in which he acknowledged that the mails were Yahoo and Hotmail messages, and still said that the only way to determine the "authenticity and source" of the e-mails Joel was suing over, was to get a mirror copy of Joel's hard drive. After Joel showed me that declaration by their "expert witness", and re-iterated that he was suing over Yahoo and Hotmail messages that never touched his hard drive, I volunteered to write my own expert witness declaration for free pointing out, basically, how skull-crushingly stupid the defendant's request was.

At first, I tried looking for some alternative interpretation that might make their request seem less absurd. Johnson's declaration technically requested a copy of "the computer storage media on which the purported emails allegedly reside (e.g. hard drives, CDs, DVDs, floppy disks, etc.)". Perhaps by this he meant that he wanted a mirror copy of one of the hard drives at Hotmail or Yahoo? (Knowing, of course, that they'd fight it to the death, and the case could drag on for years?) But no, the order drafted by the defendant for the judge to sign, said "Plaintiff is ordered to allow Defendants inspection of its computers, computer storage media and subject emails as outlined in Defendants' CR 34 Request for Production and Inspection" -- Joel's computer specifically, not Hotmail's RAID array.

I also said publicly at the time that the real outrage was that their "expert witness" could make this statement when there was no chance he believed it. Larry Johnson's CV lists his credentials: educated at Harvard, admitted to the bar and licensed to practice law in Washington, doing computer consulting for 21 years, and (really) appearing in a movie called "Easier Said" as "Sheriff Tiny". And here he was making a statement, under oath, that could be refuted by a reasonably computer-literate 12-year-old. Not just outrageous that he said it. Not just that he got paid for it. (Actually, that doesn't make me too mad, because it was the spammer who paid him, so it was just transferring money from a full-time societal leech, to someone who is usually gainfully employed and merely amoral.) Outrageous that in the best-case scenario the judge would just ignore the testimony, instead of fining him or putting him in jail, which is what is supposed to happen in theory if someone gets caught lying under oath.

Well, one constant in this business is that the record for Biggest Judicial Outrage in the History of the World gets broken every three weeks.

On June 9, 2006, Judge Richard Jones of King County Superior Court signed the defendant's order commanding Joel to turn over a mirror copy of his hard drive to Sheriff Tiny. Which in practice meant: turn over a copy of your hard drive, or drop the lawsuit, or spend thousands more on an appeal.

I tell people this and I find they can't really believe a judge would go along with a request like that, they think I must be leaving something out. So I urge you to follow the links to the documents above. The defendant asked the judge to sign an order permitting inspection of Joel's hard drive, I wrote a response saying it was bogus, the judge signed the order anyway, and that was really all there was to it.

The way that Washington lower-court judges have handled anti-spam cases so far has been interesting. My experience has been that many of them don't take the cases seriously, but they usually try to find an obscure legal technicality on which to reject the case; probably they don't want a few victories to bring everybody out of the woodwork clutching a copy of their most recently received porn spam. (For example, one judge said the statute only allowed you to "recover" up to $4,000, and claimed that wouldn't apply in my anti-spam cases because I hadn't lost any money. However, in legal jargon, including some Supreme Court cases that I cited, the word "recover" is often used to mean simply taking something from another party, not necessarily something that you've lost. And anyway I doubt that the legislature, when they specified $500 in damages per message, intended for people to first have to prove that they'd actually lost $500.) I think most judges figure that if anybody tries to complain about their treatment in the courts, people's eyes will glaze over at the discussion of the legal technicalities, and it will just sound like someone complaining because they lost.

But once in a while a judge fudges an issue that involves no arcane legal jargon and that everybody can understand. If someone sues over spams received at Hotmail and Yahoo accounts, and a judge makes them turn over their hard drive, that doesn't have enough of an eye-glaze factor. People hear that and understand what it says about the courts.

Still, the judge's ruling stands. Lawyers have a saying that if a judge rules the sky is green, there's not much you can do about it unless you're willing to spend a ton of money.

Bennett Haselton writes "Parties have reached a settlement in Joel Hodgell vs. EFinancial LLC, an anti-spam case in which I got involved because after Joel sued the defendant over spams he had received, the defendant asked the judge to make Joel turn over a copy of his hard drive." That might not sound that strange until you realize that the case in question was over webmail that was obviously never actually stored on his hard drive. And the witnesses knew it.

This was a pretty silly request because Joel was suing over spams he received at Hotmail and Yahoo Mail accounts, e-mails which were never stored on his hard drive at all. I think the absurdity of it stands as a good example of what you should be prepared for if you try to take a spammer to court, even if you're represented by a lawyer.

Joel had originally sued the defendant for 49 separate spams under the Washington anti-spam law, RCW 19.190. I generally support anti-spam plaintiffs since I've been one myself a few times. When I've written about this before, a lot of people have wondered if the hourly returns were really worth the amount of time you put into it. I should have made that more clear; even after factoring in clerical errors and judicial bias, the answer really is Yes. Once you get a feel for which spammers and telemarketers can be easily tracked down, and which ones are likely to have money, you have a decent chance of getting a settlement for $500 or more for less than an hour's worth of work, if you do it right , e.g. requesting the forms by mail instead of going downtown to stand in line. (The case takes months to move through the courts, but it's possible to keep your total amount of work spent under 1 hour.) And if you're in Washington, and the same spammer sends you a large number of spams and you save them all, then you have a shot at an even larger prize if you're willing to split it with a lawyer. (Lawyers often work on contingency, after all, and they won't take on the case if they don't think there's a good chance of getting paid.)

But in Joel's case, the defendant had hired their own expert witness, Larry G. Johnson, who wrote a declaration in which he acknowledged that the mails were Yahoo and Hotmail messages, and still said that the only way to determine the "authenticity and source" of the e-mails Joel was suing over, was to get a mirror copy of Joel's hard drive. After Joel showed me that declaration by their "expert witness", and re-iterated that he was suing over Yahoo and Hotmail messages that never touched his hard drive, I volunteered to write my own expert witness declaration for free pointing out, basically, how skull-crushingly stupid the defendant's request was.

At first, I tried looking for some alternative interpretation that might make their request seem less absurd. Johnson's declaration technically requested a copy of "the computer storage media on which the purported emails allegedly reside (e.g. hard drives, CDs, DVDs, floppy disks, etc.)". Perhaps by this he meant that he wanted a mirror copy of one of the hard drives at Hotmail or Yahoo? (Knowing, of course, that they'd fight it to the death, and the case could drag on for years?) But no, the order drafted by the defendant for the judge to sign, said "Plaintiff is ordered to allow Defendants inspection of its computers, computer storage media and subject emails as outlined in Defendants' CR 34 Request for Production and Inspection" -- Joel's computer specifically, not Hotmail's RAID array.

I also said publicly at the time that the real outrage was that their "expert witness" could make this statement when there was no chance he believed it. Larry Johnson's CV lists his credentials: educated at Harvard, admitted to the bar and licensed to practice law in Washington, doing computer consulting for 21 years, and (really) appearing in a movie called "Easier Said" as "Sheriff Tiny". And here he was making a statement, under oath, that could be refuted by a reasonably computer-literate 12-year-old. Not just outrageous that he said it. Not just that he got paid for it. (Actually, that doesn't make me too mad, because it was the spammer who paid him, so it was just transferring money from a full-time societal leech, to someone who is usually gainfully employed and merely amoral.) Outrageous that in the best-case scenario the judge would just ignore the testimony, instead of fining him or putting him in jail, which is what is supposed to happen in theory if someone gets caught lying under oath.

Well, one constant in this business is that the record for Biggest Judicial Outrage in the History of the World gets broken every three weeks.

On June 9, 2006, Judge Richard Jones of King County Superior Court signed the defendant's order commanding Joel to turn over a mirror copy of his hard drive to Sheriff Tiny. Which in practice meant: turn over a copy of your hard drive, or drop the lawsuit, or spend thousands more on an appeal.

I tell people this and I find they can't really believe a judge would go along with a request like that, they think I must be leaving something out. So I urge you to follow the links to the documents above. The defendant asked the judge to sign an order permitting inspection of Joel's hard drive, I wrote a response saying it was bogus, the judge signed the order anyway, and that was really all there was to it.

The way that Washington lower-court judges have handled anti-spam cases so far has been interesting. My experience has been that many of them don't take the cases seriously, but they usually try to find an obscure legal technicality on which to reject the case; probably they don't want a few victories to bring everybody out of the woodwork clutching a copy of their most recently received porn spam. (For example, one judge said the statute only allowed you to "recover" up to $4,000, and claimed that wouldn't apply in my anti-spam cases because I hadn't lost any money. However, in legal jargon, including some Supreme Court cases that I cited, the word "recover" is often used to mean simply taking something from another party, not necessarily something that you've lost. And anyway I doubt that the legislature, when they specified $500 in damages per message, intended for people to first have to prove that they'd actually lost $500.) I think most judges figure that if anybody tries to complain about their treatment in the courts, people's eyes will glaze over at the discussion of the legal technicalities, and it will just sound like someone complaining because they lost.

But once in a while a judge fudges an issue that involves no arcane legal jargon and that everybody can understand. If someone sues over spams received at Hotmail and Yahoo accounts, and a judge makes them turn over their hard drive, that doesn't have enough of an eye-glaze factor. People hear that and understand what it says about the courts.

Still, the judge's ruling stands. Lawyers have a saying that if a judge rules the sky is green, there's not much you can do about it unless you're willing to spend a ton of money.

Bennett Haselton writes "Parties have reached a settlement in Joel Hodgell vs. EFinancial LLC, an anti-spam case in which I got involved because after Joel sued the defendant over spams he had received, the defendant asked the judge to make Joel turn over a copy of his hard drive." That might not sound that strange until you realize that the case in question was over webmail that was obviously never actually stored on his hard drive. And the witnesses knew it.

This was a pretty silly request because Joel was suing over spams he received at Hotmail and Yahoo Mail accounts, e-mails which were never stored on his hard drive at all. I think the absurdity of it stands as a good example of what you should be prepared for if you try to take a spammer to court, even if you're represented by a lawyer.

Joel had originally sued the defendant for 49 separate spams under the Washington anti-spam law, RCW 19.190. I generally support anti-spam plaintiffs since I've been one myself a few times. When I've written about this before, a lot of people have wondered if the hourly returns were really worth the amount of time you put into it. I should have made that more clear; even after factoring in clerical errors and judicial bias, the answer really is Yes. Once you get a feel for which spammers and telemarketers can be easily tracked down, and which ones are likely to have money, you have a decent chance of getting a settlement for $500 or more for less than an hour's worth of work, if you do it right , e.g. requesting the forms by mail instead of going downtown to stand in line. (The case takes months to move through the courts, but it's possible to keep your total amount of work spent under 1 hour.) And if you're in Washington, and the same spammer sends you a large number of spams and you save them all, then you have a shot at an even larger prize if you're willing to split it with a lawyer. (Lawyers often work on contingency, after all, and they won't take on the case if they don't think there's a good chance of getting paid.)

But in Joel's case, the defendant had hired their own expert witness, Larry G. Johnson, who wrote a declaration in which he acknowledged that the mails were Yahoo and Hotmail messages, and still said that the only way to determine the "authenticity and source" of the e-mails Joel was suing over, was to get a mirror copy of Joel's hard drive. After Joel showed me that declaration by their "expert witness", and re-iterated that he was suing over Yahoo and Hotmail messages that never touched his hard drive, I volunteered to write my own expert witness declaration for free pointing out, basically, how skull-crushingly stupid the defendant's request was.

At first, I tried looking for some alternative interpretation that might make their request seem less absurd. Johnson's declaration technically requested a copy of "the computer storage media on which the purported emails allegedly reside (e.g. hard drives, CDs, DVDs, floppy disks, etc.)". Perhaps by this he meant that he wanted a mirror copy of one of the hard drives at Hotmail or Yahoo? (Knowing, of course, that they'd fight it to the death, and the case could drag on for years?) But no, the order drafted by the defendant for the judge to sign, said "Plaintiff is ordered to allow Defendants inspection of its computers, computer storage media and subject emails as outlined in Defendants' CR 34 Request for Production and Inspection" -- Joel's computer specifically, not Hotmail's RAID array.

I also said publicly at the time that the real outrage was that their "expert witness" could make this statement when there was no chance he believed it. Larry Johnson's CV lists his credentials: educated at Harvard, admitted to the bar and licensed to practice law in Washington, doing computer consulting for 21 years, and (really) appearing in a movie called "Easier Said" as "Sheriff Tiny". And here he was making a statement, under oath, that could be refuted by a reasonably computer-literate 12-year-old. Not just outrageous that he said it. Not just that he got paid for it. (Actually, that doesn't make me too mad, because it was the spammer who paid him, so it was just transferring money from a full-time societal leech, to someone who is usually gainfully employed and merely amoral.) Outrageous that in the best-case scenario the judge would just ignore the testimony, instead of fining him or putting him in jail, which is what is supposed to happen in theory if someone gets caught lying under oath.

Well, one constant in this business is that the record for Biggest Judicial Outrage in the History of the World gets broken every three weeks.

On June 9, 2006, Judge Richard Jones of King County Superior Court signed the defendant's order commanding Joel to turn over a mirror copy of his hard drive to Sheriff Tiny. Which in practice meant: turn over a copy of your hard drive, or drop the lawsuit, or spend thousands more on an appeal.

I tell people this and I find they can't really believe a judge would go along with a request like that, they think I must be leaving something out. So I urge you to follow the links to the documents above. The defendant asked the judge to sign an order permitting inspection of Joel's hard drive, I wrote a response saying it was bogus, the judge signed the order anyway, and that was really all there was to it.

The way that Washington lower-court judges have handled anti-spam cases so far has been interesting. My experience has been that many of them don't take the cases seriously, but they usually try to find an obscure legal technicality on which to reject the case; probably they don't want a few victories to bring everybody out of the woodwork clutching a copy of their most recently received porn spam. (For example, one judge said the statute only allowed you to "recover" up to $4,000, and claimed that wouldn't apply in my anti-spam cases because I hadn't lost any money. However, in legal jargon, including some Supreme Court cases that I cited, the word "recover" is often used to mean simply taking something from another party, not necessarily something that you've lost. And anyway I doubt that the legislature, when they specified $500 in damages per message, intended for people to first have to prove that they'd actually lost $500.) I think most judges figure that if anybody tries to complain about their treatment in the courts, people's eyes will glaze over at the discussion of the legal technicalities, and it will just sound like someone complaining because they lost.

But once in a while a judge fudges an issue that involves no arcane legal jargon and that everybody can understand. If someone sues over spams received at Hotmail and Yahoo accounts, and a judge makes them turn over their hard drive, that doesn't have enough of an eye-glaze factor. People hear that and understand what it says about the courts.

Still, the judge's ruling stands. Lawyers have a saying that if a judge rules the sky is green, there's not much you can do about it unless you're willing to spend a ton of money.

Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows... Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".

and part (b)(3)(A) states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

• (a) No person may: [...]

  • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.

• (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

  • (4) Which is a tax-exempt nonprofit organization.

• (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

  • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
  • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

• First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
• Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

• Does the organization making the call identify themselves at the beginning of the message?
• Did they give their return phone number anywhere in the message?

If the answer to either of those questions is no, it's suing time! Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

• Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
• If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.

What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

• Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

  • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
  • do they require a money order or can they take a plain old check?

• Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

  If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

  Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

• Your proof of service (see previous steps)
• A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
• A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
• A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
• A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!

Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows... Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".

and part (b)(3)(A) states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

• (a) No person may: [...]

  • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.

• (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

  • (4) Which is a tax-exempt nonprofit organization.

• (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

  • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
  • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

• First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
• Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

• Does the organization making the call identify themselves at the beginning of the message?
• Did they give their return phone number anywhere in the message?

If the answer to either of those questions is no, it's suing time! Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

• Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
• If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.

What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

• Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

  • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
  • do they require a money order or can they take a plain old check?

• Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

  If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

  Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

• Your proof of service (see previous steps)
• A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
• A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
• A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
• A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!

Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows... Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".

and part (b)(3)(A) states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

• (a) No person may: [...]

  • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.

• (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

  • (4) Which is a tax-exempt nonprofit organization.

• (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

  • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
  • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

• First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
• Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

• Does the organization making the call identify themselves at the beginning of the message?
• Did they give their return phone number anywhere in the message?

If the answer to either of those questions is no, it's suing time! Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

• Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
• If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.

What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

• Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

  • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
  • do they require a money order or can they take a plain old check?

• Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

  If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

  Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

• Your proof of service (see previous steps)
• A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
• A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
• A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
• A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!

Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows... Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".

and part (b)(3)(A) states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

• (a) No person may: [...]

  • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.

• (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

  • (4) Which is a tax-exempt nonprofit organization.

• (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

  • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
  • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

• First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
• Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

• Does the organization making the call identify themselves at the beginning of the message?
• Did they give their return phone number anywhere in the message?

If the answer to either of those questions is no, it's suing time! Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

• Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
• If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.

What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

• Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

  • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
  • do they require a money order or can they take a plain old check?

• Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

  If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

  Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

• Your proof of service (see previous steps)
• A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
• A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
• A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
• A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!