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Spammer Can't Have Accuser's Hard Drive
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.
Why were there no counter requests for
1) copy of hard drives of all spammers computers
2) list of all online identities and accounts used by spammer in last year
If they make it hurt for you, hurt back.
(I have been watching the SCO case)
Ok the title of the summary says the "Spammer can't Have Accuser's Hard Drive", but the entire summary says "Well he was ordered to turn it over, and as much as the judge, witness, defendant are asshats and idiots,the ruling stands". So where the fuck does the can't come from?
Your hair look like poop, Bob! - Wanker.
Well, as a non-(inner-workings-of-email)-savvy guy, it just seems like a moot point. Even if it was stored, so what? The lawsuit has long since started, and the plaintiff's hard drive was not seized at that time. So he's had plenty of time to manipulate his hard drive to add or delete anything he wants, right? So what's the point of admitting it as evidence, when it can't really prove anything?
Some lawyer can probably fill in the blanks about chain-of-custody issues.
Apology to Ubuntu forum.
So you see, receiving web mail doesn't necessarilly mean caching
It doesn't mean the opposite either. If there is a chance he might recover something useful, he should get access to the hard drive. Welcome to the world of civil discovery.
What?
Ummm. I believe you meant fishing expedition there. ;)
Well, when you browser empties the cache, it doesn't mean the data is deleted to the point it can't be recovered. It just means the computer thinks the space is free for use. So your viewed hotmail, yahoo emails can be recovered long after you viewed them.
-----BEGIN PGP SIGNATURE-----
12345
-----END PGP SIGNATURE-----
Yep. Remember that this was a *county* court judge. At least in New York State, outside of New York City and a few neighboring counties, county judges and magistrates aren't even required to be attorneys nor to have passed a test comparable to the bar exam. And they're often elected in one-candidate elections because no one really wants the job - there's not much pay nor fame in it.
-b.
Nice long tirade you have there. The only problem is you are wrong.
There is a fairly good chance that at least some of the web pages viewing those webmails are recoverable in swap space, file slack space, and unallocated space.
- For the complete works of Shakespeare: cat
To which I can only say - let's come on out anyway! That's the point of these statutes - if everybody clogged the judicial system as much as spammers clogged our inbox, someone might do something just to get us off their backs.
And after all, filing lawsuits is a legal right - sending spam is illegal. So we have the upper hand in both regards.
So is admitting under oath that you used a weapon when you are a convicted felon.
The judge, prosecution and defense didn't even blink an eye when a witness on an arson case made this statement.
Bottom line:
Now, and maybe always, the law is selectively enforced.
Usually so it can be cost effective and catch as many bad guys as possible.
But you cross the wrong people, and it is going to selectively enforced against you to punish you.
We are all breaking various laws constantly every day. (You think not? You never even go 1MPH over the speed limit like the guy in my last defensive driving class (21 in a 20!) or you always signal lane changes on the freeway?) You never ever had a spam that had an inappropriate picture in it? Because if they want they can make your life hell for the cached copy of that picture on your hard drive. Etc. Etc.)
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
>At least he admitted he was utterly wrong :-) ...
>that deserves a couple mod points for informative
You know - every time I try the "mod parent up" post, some shitbag mods me "offtopic". Now I just do it AC. Like this one.
Anybody want a copy of my hard drive?
A/C
If the defendant had been ordered to hand over his physical hard drive, then your statement might have some validity. However, he was asked to hand over a copy of his hard drive. A copy of a hard drive, even an image, is not likely to reflect sectors that are free but contain data.
Don't you guys know anything about SMTP e-mail headers?
of course we do and so does everyone involved except the judge and maybe the defendant, but that's not what it's about. It's about billable hours and if the lawyer/computer forensics expert (Larry G Johnson) gets to poke around a computer hard-disk for a couple hours, he's $600.00 richer and his client (the alleged spammer) is $600.00 poorer and the plaintiff is wondering if the $500.00 he might win is worth the feeling of being so violated.
Apocalypse Cancelled, Sorry, No Ticket Refunds