Slashdot Mirror

An anonymous reader quotes a report from Gizmodo: On Thursday, the Washington state legislature officially passed one of the most ambitious clean energy bills in the nation. Washington is now committed to making the state's electricity supply carbon neutral by 2030 and 100 percent carbon-free by 2045. The bill makes the fourth state to commit to 100 percent clean energy and adds a feather to the cap of Governor Jay Inslee who requested the bill be introduced. Inslee is running as a climate candidate for president that can get things done in the District if elected, and this bill is a very tangible accomplishment he can now point to.

The bill previously passed the state senate 28-19. After passing the house 56-42 on Thursday, the legislation goes back to the senate for a final vote. Once signed into law, Washington will join, Hawaii, California, and New Mexico as the fourth state committed to 100 percent clean energy. Washington, D.C. and Puerto Rico have also made similar commitment as well as more than 90 cities, according to tracking by the Sierra Club. The bill shuts the door on coal, saying it "is the policy of the state to eliminate coal-fired electricity." By calling for energy to come from carbon-free sources by 2045, it leaves the door open for nuclear power. [...] In addition to committing to cutting emissions, the bill is also designed to ensure the transition to renewables and any bumps in energy prices aren't shouldered by the poor. The bill calls says utilities "must make funding available for energy assistance to low-income households."

Microsoft is urging lawmakers in Washington to increase the tax burden on itself and Amazon (Warning: source may be paywalled; alternative source) to help pay for a new higher education fund. "The bill, which was introduced Monday by Rep. Drew Hansen and Rep. Gerry Pollet among others, "would pour about a billion dollars over the next four years into a 'workforce education account,' to be spent on more financial aid as well as more degree slots in high-demand subjects such as computer science, engineering and nursing," The Seattle Times reports. Microsoft and Amazon would be the only two companies included in the highest tax bracket. From the report: The premise now is to put a surcharge on businesses that benefit the most from a highly skilled workforce. That means high-tech of course, as well as professional services firms. The bill proposes increasing the state business and occupation tax by 20 percent on about 40 categories of technical services, such as telecom, engineering, medical and finance. And by 33 percent on tech firms with more than $25 billion in annual revenue. But here's where this goes off the charts, into politically unheard-of territory. It mandates a top rate, a whopping 67 percent business tax increase, for those "advanced computing businesses" with "worldwide gross revenue of more than one hundred billion dollars" per year. There are only two businesses headquartered here that fit that rarefied description. And one of them, Microsoft, is the tax's biggest booster.

But that other company that would also be most on the hook? Apparently it isn't so thrilled to have been volunteered for civic duty by one of its chief rivals. "Amazon was surprised to be included in such a public 'hey, let's do this' by Microsoft," said Rep. Gael Tarleton, D-Seattle, who said she heard that lament directly from an Amazon lobbyist. Added Pollet: "Amazon has groused in meetings down here that Microsoft is doing this mostly as a way of making Amazon look bad."

A federal judge has blocked Washington State's 2004 cyberstalking law after ruling that a key provision violated First Amendment protections for free speech due to vague terms. "Its prohibitions against speech meant to 'harass, intimidate, torment or embarrass' weren't clearly defined, according to the judge, and effectively criminalized a 'large range' of language guarded under the Constitution," reports Engadget. "You could theoretically face legal action just by criticizing a public figure." From the report: The ruling came after a retired Air Force Major, Richard Rynearson III, sued to have the law overturned. He claimed that Kitsap County threatened to prosecute him under the cyberstalking law for criticizing an activist involved with a memorial to Japanese victims of U.S. internment camps during World War II. While Rynearson would use "invective, ridicule, and harsh language," the judge said, his language was neither threatening nor obscene.

Officials had contended that the law held up because it targeted conduct, not the speech itself. They also maintained that Rynearson hadn't shown evidence of a serious threat -- just that the prosecutor's office would see how Rynearson behaved and take action if necessary. A county court had already tossed out the activist's restraining order against Rynearson over free speech. It's not clear whether Washington will appeal the decision. If the ruling stays, though, it could force legislators to significantly narrow the scope if it wants a cyberstalking law to remain in place. This might also set a precedent that could affect legislation elsewhere in the country. The Electronic Frontier Foundation praises the judge's decision, adding: "This is all valuable speech that is protected by the First Amendment, and no state law should be allowed to undermine these rights. We are pleased that the judge has agreed."

The Hanford Vit Plant in Washington state, a $17 billion federal facility for treating and immobilizing radioactive waste, is now on track to begin "glassifying" low-activity nuclear waste as soon as 2022, reports IEEE Spectrum. This is "a year ahead of a court-mandated deadline." From the report: Still, an air of uncertainty surrounds the project. The U.S. Department of Energy (DOE) has proposed reclassifying some of the nation's radioactive waste as less dangerous, and it's unclear how that could affect the Hanford facility's long-term prospects. Hanford houses about 212 million liters of high-level waste, the leftovers of the U.S. nuclear weapons program.

However, higher-level waste has a longer timeline. Separate pretreatment and vitrification facilities aren't slated for commissioning until 2033. All parts of the Vit Plant are legally required to begin fully operating by 2036, under a consent decree between Washington, Oregon, and the federal government. The DOE hasn't said whether, or how, its proposal to reclassify nuclear waste would affect existing plans at Hanford if adopted. The agency is not making any decisions on the classification or disposal of any particular waste stream at this time, a DOE official said by email. [...] Though current law defines high-level radioactive waste as the sludge that results from processing highly radioactive nuclear fuel, the DOE is considering slapping a new, potentially less expensive label on it if it can meet the radioactive concentration limits for Class C low-level radioactive waste. Reclassifying nuclear waste would allow the federal government to sidestep decades of cleanup work, saving it billions of dollars. The relabeling might even enable the DOE to bypass costly vitrification and instead contain tank waste by covering it with concrete-like grout, as the agency does at other decommissioned nuclear sites. Officials and citizens in Washington and Oregon oppose this method for Hanford, "citing the risk of long-term soil and groundwater contamination and the challenges of moving and storing voluminous grout blocks," reports IEEE Spectrum. "Earlier federal studies found that grout 'actually performed the worst of all the supplemental treatment options considered.' (A 2017 report to Congress, however, suggested both vitrification and grout could effectively treat Hanford's low-activity waste.)"

Microsoft has unveiled a new paid parental leave policy on Thursday that will affect the more than 1,000 firms it does business with across the U.S. An anonymous reader shares the report from the Washington Post: Technology giants in the United States offer some of the country's most generous employee benefits, but the workers who mow the lawns or serve lunch in the company cafeteria -- jobs that are often staffed by outside firms -- tend to get far smaller packages. Microsoft announced a new policy Thursday that it hopes will shrink that gap, pledging it will ink contracts only with service providers who give their employees 12 weeks of paid family leave. Per the requirement, mothers and fathers who perform work for Microsoft -- biological and adoptive -- must receive 12 weeks of leave at two-thirds of their wages or up to $1,000 weekly. The announcement comes as Washington state, where the company is based, prepares to introduce paid family leave for workers, the fifth state to do so. Microsoft currently offers its direct employees 12 weeks of paid family leave at full pay, and birth mothers receive an additional eight paid weeks for physical recovery.

jwhyche writes: Beth Brunton walks around Seattle with a magenta umbrella. At 75 degrees and there not being a cloud in the sky, it gets peoples attention. What she is attempting to do is get people to sign a petition supporting Initiative 1631, known as the "Protect Washington Act." If this was to pass, Washington state would become the first state to adopt anything like a carbon tax. "The initiative proposes a 'fee on pollution' that would put a $15 charge on each metric ton of carbon dioxide emitted in Washington starting in 2020," reports Wired. "That charge would rise by $2 plus inflation every year until the state meets its climate goals, which include cutting its carbon footprint 36 percent below 2005 levels by 2035. The revenue raised would go toward investing in clean energy; protecting the air, water, and forests; and helping vulnerable communities prepare for wildfires and sea-level rise."

The report mentions Washington's previous attempt at a "carbon tax" initiative, which was ultimately rejected. It would have initially charged businesses $25 per metric ton of emissions before ramping up over time.

jwhyche writes: Beth Brunton walks around Seattle with a magenta umbrella. At 75 degrees and there not being a cloud in the sky, it gets peoples attention. What she is attempting to do is get people to sign a petition supporting Initiative 1631, known as the "Protect Washington Act." If this was to pass, Washington state would become the first state to adopt anything like a carbon tax. "The initiative proposes a 'fee on pollution' that would put a $15 charge on each metric ton of carbon dioxide emitted in Washington starting in 2020," reports Wired. "That charge would rise by $2 plus inflation every year until the state meets its climate goals, which include cutting its carbon footprint 36 percent below 2005 levels by 2035. The revenue raised would go toward investing in clean energy; protecting the air, water, and forests; and helping vulnerable communities prepare for wildfires and sea-level rise."

The report mentions Washington's previous attempt at a "carbon tax" initiative, which was ultimately rejected. It would have initially charged businesses $25 per metric ton of emissions before ramping up over time.

An anonymous reader quotes a report from TechCrunch: Facebook and Google were paid millions for political advertising purposes in Washington but failed for years to publish related information -- such as the advertiser's address -- as required by state law, alleges a lawsuit by the state's attorney general. Washington law requires that "political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided." Specifically, "documents and books of account" must be made available for public inspection during the campaign and for three years following; these must detail the candidate, name of advertiser, address, cost and method of payment, and description services rendered. Bob Ferguson, Washington's attorney general, filed a lawsuit yesterday alleging that both Facebook and Google "failed to obtain and maintain" this information.

Jason Koebler writes: A bill that would make it easier to fix your electronics is rapidly hurtling through the Washington state legislature. The bill's ascent is fueled by Apple's iPhone-throttling controversy, which has placed a renewed focus on the fact that our electronics have become increasingly difficult to repair.

Starting in 2019, the bill would ban the sale of electronics that are designed "in such a way as to prevent reasonable diagnostic or repair functions by an independent repair provider. Preventing reasonable diagnostic or repair functions includes permanently affixing a battery in a manner that makes it difficult or impossible to remove."

An anonymous reader quotes a report from Ars Technica: The government backlash against video game loot boxes -- the randomized in-game item purchases that some observers and legislators consider a form of gambling -- moved from Hawaii to Washington state earlier this month. That's when a group of three Democratic state senators introduced a bill that would require the state gambling commission to examine loot boxes and determine "whether games and apps containing these mechanisms are considered gambling under Washington law." "What the bill says is, 'Industry, state: sit down to figure out the best way to regulate this,'" Orcas Island Senator and bill coauthor Kevin Ranker told the Tacoma News Tribune. "It is unacceptable to be targeting our children with predatory gambling masked in a game with dancing bunnies or something."

The bill text puts specific focus on the question of whether children who "may be more vulnerable to gambling addiction" should be allowed to access games with loot boxes, and on the question of "transparency" around "the odds of receiving each type of virtual item." The latter point took on additional salience last month as Apple required such odds to be posted alongside games with loot boxes. Actual government regulation of loot boxes in Washington is still a ways off, though. Ranker's bill needs to be approved by the full Washington state legislature (which is narrowly held by Democrats) and be signed by the governor before being referred to the gambling commission. At that point, the commission would have until December 1 to form its recommendations for any regulatory and enforcement system the state might set up.

An anonymous reader quotes a report from The Verge: Lawmakers and public officials are responding to the FCC's decision to gut net neutrality with promises of action. In the hours following the FCC hearing, officials from around the country announced lawsuits and bills intended to counter the FCC's decision. In New York, Attorney General Eric Schneiderman said that he's leading a multi-state lawsuit to challenge the FCC's vote, though he didn't give further details on the suit or who would be joining him. Calling today's decision an "illegal rollback," he described it as giving "Big Telecom an early Christmas present."

Washington state Attorney General Bob Ferguson also announced he would sue alongside Schneiderman and other attorneys general across the country, saying that he held "a strong legal argument" and that it was likely the government had failed to follow the law with this vote. Other officials from Santa Clara, California, including county supervisor Joe Simitian, are also suing the FCC to block the decision. "We believe the depth of your ideas should outweigh the depths of your pockets," Simitian said at a press conference.

State Sen. Scott Wiener (D-CA) announced plans to introduce a bill to adopt net neutrality as a requirement in his state. He wrote in a Medium post, "If the FCC won't stand up for a free and open internet, California will."

Rep. Mike Coffman (R-CO) tweeted that he will be submitting net neutrality legislation, saying that this was a decision better left to Congress. Coffman was the first Republican to ask the FCC to delay the vote, citing "unanticipated negative consequences" on Tuesday. Furthermore, Sen. Bernie Sanders (D-VT) and Sen. Brian Schatz (D-HI) are supporting Sen. Ed Markey's (D-MA) plan to introduce a Congressional Review Act resolution to undo the FCC vote. Even Rep. Marsha Blackburn (R-TN), who had previously announced on Twitter her support for Ajit Pai and the FCC, tweeted a video, saying, "We will codify the need for no blocking, no throttling, and making certain that we preserve that free and open internet." We're likely to see many others express their disappointment with the FCC's decision over the next few hours and days.

reifman writes: Until this summer, Amazon had never contributed more than $15,000 to a city political campaign in Seattle, but this year's different. The company is a lead funder in the Seattle Chamber of Commerce's PAC which dropped $525,000 Monday on Jenny Durkan's PAC, the centrist business candidate. Her opponent Cary Moon is an advocate for affordable housing, which complicates Amazon's growth, and city-owned community broadband. Comcast and Century Link joined Amazon contributing $25,000 and $82,500 respectively to the Chamber's PAC. Amazon's $350,000 contribution represents .00014 of its CY 2016 net profit.

The Washington State Attorney General's Office has charged a Seattle man for setting up a fake talent agency for adult entertainers in order to trick women into posing nude and having sex with him. NBC News reports: Michael-Jon Matthew Hickey is accused of creating a fictitious business and using deceptive ads with bogus employment offers to find his victims. The lawsuit alleges Hickey offered and advertised commercial services solely for his "own personal gain" and to "satisfy his sexual desires" with no intention of following through on the promised services to help these women find jobs. Hickey, a 40-year old technology blogger and aspiring photographer, is charged with numerous violations of the Washington Consumer Protection Act and the Commercial Electronic Mail Act. Assistant Attorney General Andrea Alegrett, who is handling the consumer protection case, told NBC News Hickey had developed "a sophisticated scam" which involved fake business websites, fictional people, and bogus contact information. The lawsuit alleges Hickey pretended to be a woman named Deja Stwalley, who claimed to live in Las Vegas where she ran a number of talent companies, including New Seattle Talent, West Coast Talent and FMH Modeling. The New SeattleTalent website stated: "We work as recruiters and scouts for some of the top studios in the Northwest. Our goal is to be the top recruiting group for girls in America. We're woman-founded and woman-owned, and take the talent's safety and welfare seriously." Hickey, posing as Stwalley, would contact women between the ages of 17 and 25 via Facebook and offer them a chance to audition for an adult film studio. Stwalley assured each woman that they "TOTALLY have the look they're going for" and could earn between $1,200 and $3,500 a day, the AG's complaint alleges. Digital Security expert Adam Levin, Chairman and founder of Identity Theft 911, said this case shows just how easy it is for someone to use social media for fraudulent purposes.

The Washington State Attorney General's Office has charged a Seattle man for setting up a fake talent agency for adult entertainers in order to trick women into posing nude and having sex with him. NBC News reports: Michael-Jon Matthew Hickey is accused of creating a fictitious business and using deceptive ads with bogus employment offers to find his victims. The lawsuit alleges Hickey offered and advertised commercial services solely for his "own personal gain" and to "satisfy his sexual desires" with no intention of following through on the promised services to help these women find jobs. Hickey, a 40-year old technology blogger and aspiring photographer, is charged with numerous violations of the Washington Consumer Protection Act and the Commercial Electronic Mail Act. Assistant Attorney General Andrea Alegrett, who is handling the consumer protection case, told NBC News Hickey had developed "a sophisticated scam" which involved fake business websites, fictional people, and bogus contact information. The lawsuit alleges Hickey pretended to be a woman named Deja Stwalley, who claimed to live in Las Vegas where she ran a number of talent companies, including New Seattle Talent, West Coast Talent and FMH Modeling. The New SeattleTalent website stated: "We work as recruiters and scouts for some of the top studios in the Northwest. Our goal is to be the top recruiting group for girls in America. We're woman-founded and woman-owned, and take the talent's safety and welfare seriously." Hickey, posing as Stwalley, would contact women between the ages of 17 and 25 via Facebook and offer them a chance to audition for an adult film studio. Stwalley assured each woman that they "TOTALLY have the look they're going for" and could earn between $1,200 and $3,500 a day, the AG's complaint alleges. Digital Security expert Adam Levin, Chairman and founder of Identity Theft 911, said this case shows just how easy it is for someone to use social media for fraudulent purposes.

theodp writes: During public hearings on WA State's House Bill 1813, which took aim at boys' historical over-representation in K-12 computer classes, the Office of the WA State Superintendent of Public Instruction voiced concerns that by relying on the generosity of corporations, wealthy individuals, and nonprofits to fund STEM, computer science, and technology programs, learning opportunities would be limited to a small group of students, creating disparity of opportunity. "If this is a real priority," pleaded Chris Vance, "fund it fully" (HB 1813, like the White House K-12 CS plan, counts on philanthropy to make up for tax shortfalls). But legislators in the WA House and Senate — apparently more swayed by the pro-HB 1813 testimony of representatives from Microsoft and Microsoft-backed TEALS and Code.org — overwhelmingly passed the bill, sending it to Governor Jay Inslee for his signature. Not to worry. On Wednesday, the bill was signed into law by Gov. Inslee, who was perhaps influenced by the we-need-to-pass-HB-1813 blogging of Microsoft General Counsel and Code.org Board member Brad Smith, who coincidentally is not only responsible for Microsoft's philanthropic work, but was also co-chair of Gov.-elect Inslee's transition team. The WA state legislative victory comes less than 24 hours after the San Francisco School Board voted to require CS instruction beginning with preschool.

theodp writes On Tuesday, the State of Washington heard public testimony on House Bill 1813 (video), which takes aim at boy's historical over-representation in K-12 computer classes. To allow them to catch flights, representatives of Microsoft and Microsoft-bankrolled Code.org were permitted to give their testimony before anyone else ("way too many young people, particularly our girls...simply don't have access to the courses at all," lamented Jane Broom, who manages Microsoft's philanthropic portfolio), so it's unclear whether they were headed to the airport when a representative of the WA State Superintendent of Public Instruction voiced the sole dissent against the Bill. "The Superintendent strongly believes in the need to improve our ability to teach STEM, to advance computer science, to make technology more available to all students," explained Chris Vance. "Our problem, and our concern, is with the use of the competitive grant program...just providing these opportunities to a small number of students...that's the whole basic problem...disparity of opportunity...if this is a real priority...fund it fully" (HB 1813, like the White House K-12 CS plan, counts on philanthropy to make up for tax shortfalls). Hey, parents of boys are likely to be happy to see another instance of educators striving to be more inclusive than tech when it comes to encouraging CS participation!

theodp writes On Wednesday, Washington State held a public hearing on House Bill 1445, which proposes a study "to allow two years of computer sciences to count as two years of world languages for the purposes of admission into a four-year institution of higher education." Among the questions posed by the House Higher Education Committee to a UW rep at the hearing was the following: "What's the case for...not just world language is good, world language is well-rounded, but world language is so super-duper-duper good that you should spend two years of your life doing them and specifically better than something else like coding?" The promise of programming jobs, promoted by Microsoft execs and other MS folks like ex-Program Manager Audrey Sniezek (ironically laid off last summer), has prompted Kentucky to ponder a similar measure.

theodp writes Boys' over-representation in K-12 computer classes has perplexed educators for 30+ years. Now, following on the heels of Code.org's and Google's attempts to change the game with boys-don't-count gender-based CS teacher funding schemes, Washington State lawmakers have introduced House Bill 1813, legislation that requires schools seeking K-12 computer education funding to commit to preventing boys from ruling the computer class roost. Computer science and education grant recipients, HB 1813 explains, "must demonstrate engaged and committed leadership in support of introducing historically underrepresented students [including girls, low-income students, and minority students]" and "demonstrate a plan to engage historically underrepresented students with computer science." Calling it "a bold new bill that we hope more states will follow," corporate and tech billionaire-backed Code.org tweeted its support for the bill.

An anonymous reader writes "In 2012, a card game called Asylum was successfully funded on Kickstarter. Two months later, its expected delivery date came and passed without a product. In July 2013, the company behind the game stopped communicating with backers. Now, the Washington state Attorney General has filed a consumer protection lawsuit against the makers. This is the first time a project from a crowdfunding site has been the target of such a lawsuit. The AG said, 'Consumers need to be aware that crowdfunding is not without risk. This lawsuit sends a clear message to people seeking the public's money: Washington state will not tolerate crowdfunding theft. The Attorney General's Office will hold those accountable who don't play by the rules.' Here's the legal document (PDF)."

theodp writes "Back in 2010, Bill Gates Sr. made the case for I-1098, an initiative for a WA state income tax that Gates argued was needed to address K-12 funding inequity, which he claimed was forcing businesses "to import technically-trained employees, while our own people are shut out of highly paid careers." Opposed by the deep-pocketed, high-tech studded Defeat 1098, the initiative was defeated. Four years later, some of the same high-tech leaders who records show funded Defeat 1098 — including Microsoft CEO Steve Ballmer ($425K), Microsoft General Counsel Brad Smith ($10K), Code.org founder Hadi Partovi ($10K), Amazon CEO Jeff Bezos ($100K), Microsoft Corporation ($75K) — have gotten behind groups like Mark Zuckerberg's FWD.us and Code.org, which are singing a similar Chicken Little tune, telling lawmakers that U.S. students will continue to be shut out of highly paid computer science careers without additional K-12 funding, and the U.S. will lose its competitive edge unless tech is permitted to import even more technically-trained employees. In a departure from Gates' income-tax based solution, Microsoft and Code.org argue that the-problem-is-the-solution, proposing that tech visa fees be used to fund K-12 CS programs. To 'accept that computer science classes are only available to the privileged few,' writes Code.org, 'seems un-American'. So, as some of the nation's biggest K-12 school systems turn to Code.org for CS education programs, should they expect the funding to come from taxes, H-1B tech visa fees, or the-kindness-of-wealthy-strangers philanthropy?"

SchrodingerZ writes "A recent review of the Hanford Nuclear Reservation in Washington state (where the bulk of Cold War nuclear material was created) has found that six of its underground storage tanks are leaking badly. Estimations say each tank is leaking 'anywhere from a few gallons to a few hundred gallons of radioactive material a year.' Washington's governor, Jay Inslee, said in a statement on Friday, 'Energy officials recently figured out they had been inaccurately measuring the 56 million gallons of waste in Hanford's tanks.' The Hanford cleanup project has been one of the most expensive American projects for nuclear cleanup. Plans are in place to create a treatment plant to turn the hazardous material into less hazardous glass (proposed to cost $13.4 billion), but for now officials are trying just to stop the leaking from the corroded tanks. Today the leaks do not have an immediate threat on the environment, but 'there is [only] 150 to 200 feet of dry soil between the tanks and the groundwater,' and they are just five miles from the Colombia River."

reifman writes "Last week, the Washington State House of Representatives passed a bill which would impose a 10% tax on custom software while all but eliminating a $100 million yearly tax obligation that some say Microsoft is wrongfully avoiding by routing large chunks of business through an office in Nevada. 'I believe we've got an issue of justice and fairness here,' said Rep. Maralyn Chase. 'Most of the custom software purveyors are small businesses. It's a question for me of how we fairly distribute the tax burden.' 'It means that a 5 person team of entrepreneurs building a cool custom software suite, or a group of system integrators, would face a 10% tax on their services while keeping the exact same project in-house would not be taxed,' wrote Rep. Reuven Carlyle. 'It would be a massive blow to the entrepreneurial community in our state.' The bill won't become law until the House and Senate work out how best to raise another $300 million in taxes. A sales tax increase on consumers is also being considered."

thomst writes "A week ago, Rob McKenna, the Attorney General of Washington State, filed suit against DirecTV, alleging 16 counts of unfair, deceptive, and unethical business practices. The charges include failure to disclose important contract information (such as early termination fees, 'service maintenance' fees, and rebate terms), misrepresentation, 'negative option' billing, 'unconscionable enforcement of contract to which there has been no mutual consent,' failure to honor promotional offers, and 'imposing charges when no service has been provided.' The complaint is available online (PDF). MSNBC's Bob Sullivan states that McKenna's office received 375 complaints against DirecTV in the 11.5 months before he filed suit, and 59 additional complaints in the 24 hours immediately after the filing was announced. Sullivan's story also states, 'McKenna said he'd been working with DirecTV for months in an attempt to avoid a court battle, and he was surprised DirecTV refused to change its business practices voluntarily.'"

joeszilagyi writes "In a major battle in Washington State, anti-gay rights groups created and got R-71 on the 2009 election ballot. This is a public initiative to put same-sex civil unions up for public vote. The real legal war then erupted: activists created WhoSigned.org to take advantage of WA state's Public Records Act, and put the names of all people who publicly endorsed R-71 on a public, SEO-optimized website. Lawsuits quickly followed, and today it reached the United States Supreme Court, in a matter of months. The records appear to have always been public, but have only been available in digital form since 2006. An assault on civil rights, an assault on marriage, or an assault on sunshine laws and freedom of information?"

theodp writes "Gov. Christine Gregoire applauded Microsoft's job training partnership with WA state and county government agencies, which calls for the distribution of 30,625 training vouchers statewide during the next 90 days. 'This program [Elevate America] is all about equipping people with the new skills they'll need to get a job in the changing economy,' said Microsoft Counsel Brad Smith, who also made it very clear that getting 'workforce ready' won't involve acquiring any Linux skills. At least this offer appears to be no-cost, unlike the $35 Microsoft requested in an e-mail come-on for 'The Stimulus Package for Your Career' (so much for Smith's and Gregoire's war on spam)."

theodp writes "Among the first to benefit from the investment in roads and bridges from Obama's stimulus plan is Microsoft, which has $20B in the bank. Local planners have allotted $11M to help pay for a highway overpass to connect one part of Microsoft's wooded campus with another. Microsoft will contribute almost half of the $36.5M cost; other federal and local money will pay the rest. 'Steve Ballmer or Bill Gates could finance this out of pocket change,' griped Steve Ellis of the Taxpayers for Common Sense. 'Subsidizing an overpass to one of the richest companies in the country certainly isn't going to be the best use of our precious dollars.' Ellis called the project 'a bridge to Microsoft,' alluding to Alaska's infamous 'Bridge to Nowhere.'" A White House spokesman said this bridge project is still under review.

Dutch Gun writes "Jerry Holkins and Mike Krahulik (Tycho and Gabe) of Penny Arcade have been honored by the Washington State legislature with a resolution. The bill praises their charity work (PDF) with Child's Play, for attracting tourist dollars by starting the Penny Arcade Expo, which has grown to become the largest video game exhibition in the country, providing student scholarships, and for their leadership role within the computer gaming community. Washington State is home to at least 45 game development companies, including such notable names as Nintendo of America, Microsoft, Bungie, Valve, ArenaNet, PopCap, Gas Powered Games, Monolith, Zipper Interactive, Snowblind Studios, and more. This is a marked departure from the typical news involving governments and gaming. One could see the courtship of the computer gaming industry by the State of Washington as a shrewd political move, given the current tough economic times and the seeming resistance of the entertainment industry to recessions. Or, perhaps a bit less cynically, this might just be a sign that gaming has reached a critical threshold of mainstream normalcy."

Slashdot regular Bennett Haselton summarizes his essay this way: "Debate over the Lori Drew verdict has focused overwhelmingly on whether the ruling was technically correct, but there is another serious issue: the perverse incentives that this ruling creates for victims of online harassment." Read on for his essay.
Since a jury convicted Lori Drew of three misdemeanors for harassing Megan Meier on MySpace and causing her to commit suicide, most of the debate has focused on the question of whether proper legal procedure was followed in an attempt to punish someone for their obviously evil actions, when it wasn't clear that an actual crime had been committed. Emily Bazelon has argued that the rule of law is too important to convict someone for a crime for what was essentially a violation of the MySpace Terms of Service. Anne Mitchell has argued that the slippery slope is nowhere near as dangerous as the backlash is making it sound, because the doctrine of prosecuting people for violating a site's TOS is almost certainly only going to be used against people who commit horrific acts in the process, as Lori Drew did.

I'm more inclined toward the rule of law argument, but hang on — both sides seem to be assuming that it was a desirable outcome to punish Lori Drew publicly and severely. Hell yes she deserved it, but there is more at stake here. What about the consequences for kids who are current victims of harassment and who hear about the case and the verdict?

When anti-cyber-bullying laws were proposed in response to the original news of Megan Meier's suicide, I argued that the laws would be a terrible idea, especially if the criminal provisions of the law were conditional on the bullying victim harming themselves — because then you've created told victims of harassment: You can have your tormentors publicly vilified and even arrested, but only if you make it look like you tried to injure or kill yourself (and at which you might succeed in the process, intentionally or not).

What would be true of a cyber-bulling law is also true for the pseudo-caselaw created by the verdict. Surely there are other Megan Meiers out there who should not be led to believe that they can ruin their harasser's lives by committing suicide.

Now you might argue that by my reasoning, existing harassment laws which are contingent on the victim showing signs of emotional distress, could lead to the same problem — victims either consciously faking distress, or trying to fake distress so convincingly that they actually harm themselves, or subconsciously absorbing the fact that they can only get justice if they actually show harm. I had actually assumed that existing harassment laws governed only the conduct of the harasser, and did not depend on how the victim felt, but I was wrong — here in Washington State for example, RCW 10.14 states that harassing conduct is conduct that

"shall be such as would cause a reasonable person to suffer substantial emotional distress,
and shall actually cause substantial emotional distress to the petitioner." [emphasis added]

Reading that literally means that no matter how bad the harassment is, you still have to feel distressed in order to have them prosecuted, and the more distressed you "act," the more likely you are to succeed! But hang on — in order for that law to create incentives for victims of harassment to fake distress in order to have their personal enemies prosecuted, they would have to actually know that the law says that. I doubt that most people walking around Washington know the exact wording of the harassment law. More likely, they already realize that if they were to ever try and have someone prosecuted for harassment who didn't actually deserve it, a little tears and shaking would probably influence the judge, whether or not their feelings had any technical relevance under the law. And even if they were to exaggerate the effects of the harassment, all they would have to do would be to claim that they threw up or lost sleep from anxiety — they wouldn't have to show evidence of trying to harm or kill themselves.

On the other hand, everybody has heard about the Lori Drew and Megan Meier case, and it seems likely that the fact that Megan killed herself did contribute to the conviction. (At one point Judge George H. Wu had said that he would probably exclude evidence from the trial that Megan Meier had committed suicide as a result of the harassment, but later changed his mind and did allow it to be mentioned, saying "It's impossible to get a jury that doesn't know.") If Megan Meier had merely lost sleep, or suffered from panic attacks, or cut herself as a result of the harassment she endured from Lori Drew, would Drew have been convicted? Or even arrested?

These perverse incentives — "rewarding" Megan Meier for her suicide by vicariously exacting her revenge on Lori Drew — have been present ever since the wall-to-wall coverage of the case first started. Many news outlets have a policy of not publishing the names of suicide victims, not only to protect the privacy of grieving families but to avoid "rewarding" suicides by giving them the attention they may have wanted. The Associated Press Statement of News Values and Principles does not list any policy against printing the names of suicides. Maybe they should. (They do have a policy against printing the names of sexual assault victims, for example.) But it's a slippery journalistic slope to go down once you start deciding not to publish certain elements of a story, even for what seem to be compelling reasons. For example, take the policy of not publishing the names of alleged rape victims. If the rationale is that the AP doesn't want to cause unfair embarrassment to the alleged victims in case their story is true, why wouldn't the AP also avoid publishing the name of the defendant, to avoid causing them vastly greater unfair embarrassment in case the victim's story is false? So any decision to leave someone's name out of a story can lead to sticky "but-then-what-about" scenarios.

Perhaps the story should not have been covered at all, or anywhere near as much as it was. (I realize I may be contributing to the problem here, but my penance is that I'm calling for less coverage in the future, and I would never be writing about this if the mainstream media hadn't covered it so extensively.) What about all the other people who committed suicide during the same year, also as a result of vicious harassment, but with the only difference being that their suicides did not involve the Internet? Don't they deserve the same justice, and don't their tormentors deserve the same vilification?

Defenders of Internet civil liberties have for years been disgusted with the fact that crimes involving the Internet — from simple identity theft to rape and murder — have always gotten disproportionately more attention than the same or similar crimes committed without the aid of a computer. In the Megan Meier case, the effect of the coverage is even worse: Leading potential suicides to believe that they can have the sympathy they always wanted, and revenge on those they hate, if they kill themselves.

Smelly Jeffrey writes "According to a recent article, Indiana BMV Communications Director Dennis Rosebrough states that applicants for a new or renewed operator's license or state identification card will no longer be allowed to smile and say cheese. Apparently new facial recognition software being employed by the state fails to function when the face is distorted by something as innocuous as smiling. Also on the list of taboos are hats, eyeglasses, and hair that hangs down over the face. The article fails to mention, however, the legality of beards, mustaches, and bushy eyebrows." Similar restrictions are in place for the Enhanced Driver License (which serves as a sort of limited passport) implemented by the state of Washington, among others.

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 "The Virginia Supreme Court has ruled that the state's anti-spam law, which prohibits the sending of bulk e-mail using falsified or forged headers, violates the First Amendment because it also applies to non-commercial political or religious speech. I agree that an anti-spam law should not outlaw anonymous non-commercial speech. But the decision contains statements about IP addresses, domain names, and anonymity that are rather basically wrong, and which may enable the state to win on appeal. The two basic errors are: concluding that anonymous speech on the Internet requires forged headers or other falsified information (and therefore that a ban on forged headers is an unconstitutional ban on anonymous speech), and assuming that use of forged headers actually does conceal the IP address that the message was sent from, which it does not." Click that magical little link below to read the rest of his story.
The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). Any time you feel intimidated by "experts," it's helpful to step back and ask whether the alleged experts even agree with each other.

Page 21 is where the technical stuff starts that we can tear apart directly. The decision says, in talking about the transmission of e-mail:

The IP address and domain name do not directly identify the sender, but if the IP address or domain name is acquired from a registering organization, a database search of the address or domain name can eventually lead to the contact information on file with the registration organizations. A sender's IP address or domain name which is not registered will not prevent the transmission of the e-mail; however, the identity of the sender may not be discoverable through a database search and use of registration contact information.

These are statements that are only true if you play some kind of parlor game to find a way to read them as "true," not statements that indicate the court knew what was going on. To review: IP addresses in the U.S. are generally allocated by ARIN in blocks to Internet service providers and Web hosting companies; these companies then lease the IP addresses to their customers. You can look up an IP address with ARIN to determine which ISP or hosting company has been assigned that particular block, but the ISP or hosting company generally won't tell you the identity of their customer who has leased it from them. And anybody can register a domain, but most domain registrars give you the option of registering the domain anonymously, so that only the registrar knows the owner's true identity. So the court's statement that a database search "can eventually lead" to contact information is correct only if you clarify that it "can" lead there, but it usually won't. As a finding of fact, this is 100% true, and about as useful as "Obama might win in November. Or he might not."

But it's impossible to defend what the court says next:

As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore ... registered IP addresses and domain names discoverable through searchable data bases and registration documents "necessarily result[] in a surrender of [the speaker's] anonymity."

Now, there are two possible definitions of "anonymity" to consider: (1) you can be anonymous to the extent that ordinary citizens reading your content cannot determine your identity without a subpoena; or (2) you can be anonymous to the extent that even the government, armed with subpoenas and wiretaps, can never find out who you are. But under either interpretation of the word, the court's statement that "the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name," is wrong.

By default, almost all Internet users are already anonymous in the first sense, even without using forged headers or other tricks in their e-mails. When you send e-mail through your own Internet service provider's mail server, or when you log on to Hotmail and send messages from a Hotmail account, or when you lease a dedicated server from a Web hosting company and use it to send mails, the messages don't contain any more information about your true identity than you decide to put in them. Only the government could ordinarily discover your identity in those cases, by looking at the IP address that the message was sent from, and subpoenaing the Internet service provider or hosting company for the identity of the person using that IP address at that time.

But there are even ways to be anonymous in the second sense -- such that not even the government could identify you -- without resorting to forged e-mail headers. You can create Hotmail and Gmail accounts without giving the providers any of your true information. When you send messages through those services, they pass along the IP address that you used to connect to their Web sites, but you can obscure your IP address as well, by using an anonymizing proxy or a service like Tor.

Elsewhere in their decision, the court indicated that what they really wanted to protect was the right to send anonymous bulk e-mails that were political or otherwise non-commercial. But even by that standard, it's still possible to use Hotmail and Gmail together with an anonymizing proxy (the mail services do impose limits on how many messages each account can send in a day, but if you want to send bulk mails badly enough, you can always sign up for multiple accounts). And if you only care about staying beyond the reach of U.S. subpoena power, you can always sign up for a dedicated host overseas and send the bulk mails from there.

Apart from the court's misstatement that forged headers are the only way to publish anonymously in e-mail, there is the incorrect presumption that forged headers actually do afford anonymity in either of the senses given above. The court wrote, "[T]he only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name." But while it is possible to enter any domain you want in your return e-mail address when you send an e-mail, the court apparently didn't know what it was talking about when it referred to "entering a false IP address." You can't just "enter" any arbitrary IP address when sending an e-mail. If user@domain name.com receives an e-mail, the mail server at domain name.com has to receive the message over a connection made from some other machine, and the domain name.com mail server can always see the IP address of the machine on the other end of the connection. Normally, this machine on the other end would be the mail server of the sender's Internet service provider. Or if the sender has leased a dedicated machine at a hosting company, that dedicated machine would be the one connecting to the domain name.com mail server. Some desktop spamming programs let you turn your home computer into the sending mail server, so that it connects directly with the remote mail server to send the message. In all of these cases, the receiving mail server can see the IP address of the sending machine, so a government subpoena would usually be enough to determine the sender's identity. (I know you all know this, but I have delusions that some helpful clerk will print out this article and explain this to the judge.)

When spammers "enter" false IP addresses in sending mails, that usually means entering made-up IP addresses in headers that are sent along with the contents of the message. However, these would normally only have the effect of throwing someone off the trail who opened the message sent to user@domain name.com and was reading the headers manually. Perhaps they would see some random IP addresses scattered in the headers, would go to ARIN and look up the hosting company or ISP that those IP addresses were assigned to, and would mistakenly file a complaint with that company. But the domain name.com server can always see the true IP address that the message was received from, and for people who know how to read the headers properly, that IP address will be indicated in the headers as the address that connected to the domain name.com mail server to send the mail.

So the court's statement that "the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name" is doubly wrong: because it's easy to send e-mails anonymously without using forged headers, and because forged headers do not in fact provide the level of anonymity that the court said should be protected anyway. The only way to truly obscure your identity by hijacking a third-party IP address without permission, would be to hack into a third party's computer, by infecting a user's home computer with a Trojan horse for example, and using it to send mail. Presumably the court was not contemplating that such an activity should be considered legal, even as a means of sending political speech.

It would presumably be unconstitutional for an anti-spam law to prohibit anonymous political e-mails which attempted to hide the sender's identity -- that is after all what "anonymous" means! You couldn't pass a law outlawing Tor, for example. But the Virginia law doesn't apply to senders merely trying to hide their identity, it applies only to the use of computers "to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail" (emphasis added). There is a difference between obscuring one's identity (which Tor and anonymous remailers allow you to do), and actively trying to frame an existing third party by using forged headers to make the mail appear that it came from somewhere else, especially when sending bulk mail, which is likely to generate complaints whether it's commercial or not.

By contrast, the Washington anti-spam law prohibits any mail which "misrepresents or obscures" the origin of the message (emphasis added). This is broader and could be construed to include a wider range of things, such as the use of overseas IP addresses to send bulk mail on behalf of a U.S. company, or the use of anonymously registered domains to hide the sender's identity. It would probably be unconstitutional to prohibit these obscuring techniques for non-commercial anonymous e-mail, which is why the Washington law specifically applies only to commercial messages.

But here I'm getting into issues like constitutional law where different experts might disagree. The clear-cut technical fact is that, contrary to the court's ruling, forged e-mail headers do not provide true anonymity when sending mail, whereas there are other, legal, ways of sending mail that do make the sender truly anonymous.

What is frustrating about the court's misstatements about IP addresses, domain names, and anonymity, is that the judge is obviously intelligent and could have understood the concepts if they had been explained correctly to him. I held some misconceptions for a long time myself about domain names and IP addresses, because the first explanations I read were incomplete or wrong, or I didn't understand them. But the mistakes in the ruling would have been caught if the judge had just showed a draft to an Internet guru and said, "Hey, can you check if there's anything wrong here?" I know, I know, that's "just not done" (and there are probably formal rules in most states against showing a draft of a ruling to a third party before publishing it, even if the third party reviewer is sworn to secrecy, as they should be). But there's nothing stopping the judge from asking a technical expert during the trial, "It seems to me that the only way to publish anonymously on the Internet would be to use forged headers in e-mail. Can you tell me if that's right before I go too far down that line of reasoning?"

I've appeared before judges in Small Claims court who did ask questions about any part of the technical issues that they wanted to understand, and were even willing to revise some prior misconceptions. But all of them, even the open-minded ones, proceed by gathering information during the trial, and then in the conclusion, spell out their argument and their ruling (during which time you're not allowed to interrupt), which is then set in stone unless you appeal. I've never seen a judge say, "Here's the line of reasoning in my head right now, and my tentative conclusion. Is there anything in that chain of reasoning that you want to dispute, before I make it final? I am not promising to change my mind just because you disagree with something. But I will take it into account." This is essentially what scientists do when they submit their papers for peer review before publishing them, to minimize the chance of making an error. Judges could do the same thing -- if not formally, because they're not allowed to show opinions to third parties, then at least informally, by running their ideas past the experts assembled in their courtroom -- to reduce the chance of making a mistake. But have you ever heard of a judge doing that?

The Virginia judges probably did about as well as one could be expected to do, having learned all these technical terms only recently, and then withdrawing to their chambers to form an argument without any feedback from any technical experts. So, given the technical howlers that ended up in the ruling, the moral is that forming an argument in isolation from experts is probably not the right way to go about it.

The Seattle Post-Intelligencer is running a story about a recent ruling from the Washington State Supreme Court, which decided that AT&T's service agreement was not capable of waiving a customer's right to file a lawsuit against the company. The full opinion (PDF) is also available. From the conclusion: "AT&T's Consumer Services Agreement is substantively unconscionable and therefore unenforceable to the extent that it purports to waive the right to class actions, require confidentiality, shorten the Washington Consumer Protection Act statute of limitations, and limit availability of attorney fees. ... Courts will not be easily deceived by attempts to unilaterally strip away consumer protections and remedies by efforts to cloak the waiver of important rights under an arbitration clause."

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.

TropicalCoder writes "The LiftPort Group, founded four years ago with the lofty dream of building a stairway to heaven, has seemingly reached the end the line. The dream was to develop a ribbon of carbon nanotubes 100,000 km long, anchored to the Earth's surface and with a counterweight in space, providing a permanent bridge to orbit. Elevator cars would be robotic 'lifters' which would climb the ribbon to deliver cargo and eventually people to orbit or beyond. Now LiftPort has all but run out of funds, and the State of Washington's Securities Division has entered a Statement of Charges (PDF) against LiftPort Inc. dba LiftPort Group and founder Michael Laine."

theodp writes "Looks like Jeff Bezos and Tim O'Reilly are investing together again, and this time it has nothing to do with patent reform. In Bezos Goes Web 2.0 Wild, Private Equity Week's Alexander Haislip reports that Explore Holdings, which as of late has been doing business as Bezos Expeditions, is one of 19 investors that have pumped $34.3M into O'Reilly AlphaTech Ventures."

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.

An anonymous reader submits "Today, the Governor of Washington signs a a bill outlawing spyware (bill history) which imposes penalties of $100,000 per violation. Spyware is broadly defined. It includes everything from changing a browser's bookmarks or homepage settings, "Opening multiple, sequential, stand-alone advertisements in the owner or operator's internet browser", keystroke-logging, taking over control of the computer, modify its security settings, and even "Falsely representing that computer software has been disabled." But here is my favorite: "Prevent, through intentionally deceptive means, an owner or operator's reasonable efforts to block the installation or execution of, or to disable, computer software by causing the software that the owner or operator has properly removed or disabled automatically to reinstall or reactivate on the computer." Microsoft and Ebay both testified in support of the bill. On May 10th, a similar law banning Internet and email phishing was also passed."

An anonymous reader submits "Today, the Governor of Washington signs a a bill outlawing spyware (bill history) which imposes penalties of $100,000 per violation. Spyware is broadly defined. It includes everything from changing a browser's bookmarks or homepage settings, "Opening multiple, sequential, stand-alone advertisements in the owner or operator's internet browser", keystroke-logging, taking over control of the computer, modify its security settings, and even "Falsely representing that computer software has been disabled." But here is my favorite: "Prevent, through intentionally deceptive means, an owner or operator's reasonable efforts to block the installation or execution of, or to disable, computer software by causing the software that the owner or operator has properly removed or disabled automatically to reinstall or reactivate on the computer." Microsoft and Ebay both testified in support of the bill. On May 10th, a similar law banning Internet and email phishing was also passed."

An anonymous reader submits "Today, the Governor of Washington signs a a bill outlawing spyware (bill history) which imposes penalties of $100,000 per violation. Spyware is broadly defined. It includes everything from changing a browser's bookmarks or homepage settings, "Opening multiple, sequential, stand-alone advertisements in the owner or operator's internet browser", keystroke-logging, taking over control of the computer, modify its security settings, and even "Falsely representing that computer software has been disabled." But here is my favorite: "Prevent, through intentionally deceptive means, an owner or operator's reasonable efforts to block the installation or execution of, or to disable, computer software by causing the software that the owner or operator has properly removed or disabled automatically to reinstall or reactivate on the computer." Microsoft and Ebay both testified in support of the bill. On May 10th, a similar law banning Internet and email phishing was also passed."

An anonymous reader submits "Today, the Governor of Washington signs a a bill outlawing spyware (bill history) which imposes penalties of $100,000 per violation. Spyware is broadly defined. It includes everything from changing a browser's bookmarks or homepage settings, "Opening multiple, sequential, stand-alone advertisements in the owner or operator's internet browser", keystroke-logging, taking over control of the computer, modify its security settings, and even "Falsely representing that computer software has been disabled." But here is my favorite: "Prevent, through intentionally deceptive means, an owner or operator's reasonable efforts to block the installation or execution of, or to disable, computer software by causing the software that the owner or operator has properly removed or disabled automatically to reinstall or reactivate on the computer." Microsoft and Ebay both testified in support of the bill. On May 10th, a similar law banning Internet and email phishing was also passed."

Toadpipe writes "Washington State Court of Appeals reverses a conviction in which a computer simulation had been the main evidence. Quoting 'At issue was PC-Crash, a computer program distributed by Vancouver, B.C.-based MacInnis Engineering Associates. The program recreates traffic collisions using simulations and reconstructions. "PC-Crash had not been validated for the purpose for which the evidence was offered, simulation and prediction of multiple-occupant movement within a vehicle during a multiple-collision accident," the Court of Appeals said in ordering a new trial. "There is no general acceptance in the relevant scientific community of the use of the PC-Crash program for the purposes to which it was put."' Here is the Court's opinion."

Two major developments in the apparently neverending Washington state governor's race happened on Wednesday. As the second recount wound down, with 38 of 39 counties reporting -- all but the heavily Democratic-leaning King County -- Republican Dino Rossi extended his lead from 42 votes to 49. Then, the state Supreme Court ruled that its December 14 decision which disallowed including new ballots in the hand recount did not preclude county canvassing boards from including new ballots, which paves the way for 735 previously rejected ballots in King County to be processed. Then, King County announced that its hand recount (not including the 735) swung toward Democrat Christine Gregoire by 59 votes, giving her a 10-vote lead statewide (1,373,051 to 1,373,041). More court challenges are likely to follow.

Two major developments in the apparently neverending Washington state governor's race happened on Wednesday. As the second recount wound down, with 38 of 39 counties reporting -- all but the heavily Democratic-leaning King County -- Republican Dino Rossi extended his lead from 42 votes to 49. Then, the state Supreme Court ruled that its December 14 decision which disallowed including new ballots in the hand recount did not preclude county canvassing boards from including new ballots, which paves the way for 735 previously rejected ballots in King County to be processed. Then, King County announced that its hand recount (not including the 735) swung toward Democrat Christine Gregoire by 59 votes, giving her a 10-vote lead statewide (1,373,051 to 1,373,041). More court challenges are likely to follow.

Republican Dino Rossi came out on top of the gubernatorial recount in Washington state, beating Democrat Christine Gregoire by 42 votes. He had won the initial count by 261 votes. King County (where Seattle is) gave Gregoire a 245-vote swing. It's expected that the Democrats will call for a partial hand recount, which they would have to pay for (25 cents per vote), unless they end up winning the recount.

djembe2k writes "Score one for civil liberties. The NY Times is carrying a wire story (free reg. required, yadda) reporting that the Supreme Court of Washington state ruled today that a warrant is required by police to use GPS tracking devices to track suspects. A warrant actually was obtained in the case at hand, but the prosecutors argued that they hadn't really needed one, and they lost on this point. Here's the full text of the ruling."